The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.307 of 2013 [Against the Judgment of conviction dated 23.04.2013 and order of sentence dated 25.04.2013, passed by learned Addl. Sessions Judge-III, Bokaro, in S.T. No.151 of 2008 (Chas P.S. Case No.192 of 2007 & G.R. Case No.1760 of 2007)]. Anup Kumar Vishwakarma …. Appellant Versus Respondent The State of Jharkhand.
Legal Reasoning
….. P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. Mr. N. K. Sahani, Advocate Mr. Someshwar Roy, APP ….. For the Appellant For the State : : By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. The instant Criminal appeal is directed against the Judgment of conviction dated 23.04.2013 and order of sentence dated 25.04.2013, passed by learned Addl. Sessions Judge-III, Bokaro, in S.T. No.151 of 2008 (Chas P.S. Case No.192 of 2007 & G.R. Case No.1760 of 2007)] whereby the sole appellant has been convicted under Section 304B IPC and sentenced to undergo RI for 7 years. 2. As per the case of the prosecution lodged by the father of the deceased, the appellant was married with the deceased on 11.02.2003 and from the said wedlock, the couple was blessed with a child. It is alleged that at the time of marriage, a false representation was made that the appellant was serving in the Department of Labour at Chandigarh which was found to be false after the marriage. It is alleged that after the marriage, the appellant and his family members subjected the deceased to cruelty in reference to dowry demand. After one year of the marriage, she was ousted from the matrimonial home along with her daughter. However, after much persuasion, they agreed to keep her with them. Again after six months, marital discord arose and the appellant and his wife started living separately with other family members. The separate arrangement for their accommodation was made in Chas and thereafter demand of Rs.5 Lakhs was made. On 21.12.2007 at night at 9.30 o’clock, he received information that his daughter has been done to death and after receiving the said information, he went there and found his daughter locked in a room where she was killed by indiscriminate assault and also by throttling. 3. On the basis of the written report, FIR being Chas P.S. Case No.192 of 2007 was registered under Section 304B IPC and 3 /4 of the D. P. Act against the appellant and his family members. 1 4. 5. 6. 7. 8. 9. 10. Police after investigation found the case to be true and submitted charge-sheet. Thereafter the appellant/accused was put on trial for the offence under Section 304 B IPC. Altogether 13 witnesses were examined on behalf of the prosecution and the post-mortem report and other relevant documents have been adduced into evidence and marked as Exhibits. Learned counsel for the appellant while assailing the impugned judgment conviction and sentence argues that the case of the prosecution is completely falsified by the post-mortem examination report itself. It is submitted that in the FIR, there is allegation that the deceased was indiscriminately assaulted and throttled to death. However, in the post-mortem examination report not a scratch or abrasion was found and there is no evidence of throttling. The Doctor has opined that death was caused due to heart failure. None of the independent witness has supported the case of prosecution. It is further submitted that P.W.7 [who was the landlord of the house in which the appellant and the deceased were living] has not supported the case and was declared hostile. P.W.9 (Poonam Singh), P.W.10 (Neelam Devi) have also not supported the case of prosecution and were declared hostile. P.W.11, P.W.12 & P.W.13 have also turned hostile and have not supported the case of the prosecution. Learned APP for the State has defended the impugned judgment of conviction and sentence. Prosecution case rests upon the testimony of the informant and close relatives of the deceased. In order to draw presumption under Section 113B of the Evidence Act, it is essential to establish that there should be dowry demand soon before the death. In the present case, the marriage was solemnized in the year 2003 and the couple were separately living at Chas. 11. On the quantum of demand, contradictory versions have come up. In the FIR, it has been said that the demand of Rs.5 Lakhs was made after only one month of the marriage, whereas P.W.1 has deposed in Para-3 that Rs.3 Lakhs was demanded. The object for which the dowry demand made has been stated in the FIR to purchase a house whereas P.W.2 in Para-2 states that Rs.5 Lakh was demanded for establishing business and to purchase computer. P.W.2 at Para-26 has deposed that he saw mark of injury and blood-stained on the dead-body. However, in the post-mortem examination report, there was no mention of any injury. 2 12. Part of the prosecution case regarding allegation against the in-laws being complicit in the offence has been falsified, as after investigation, charge-sheet was submitted against the appellant that the other in-laws were not sharing the common household with the deceased, who was living separately with her husband. 13. Presumption of dowry death can be drawn under section 113B of the Evidence Act, if the foundational facts are proved. In the present case marriage was solemnised about four years before the incidence, and as rightly argued by the learned counsel on behalf of the appellant that there are conflicting and contradictory evidence regarding such a demand having been made. The allegation of demand varies. At someplace ₹ 3 lakh has been said to have been demanded and at other ₹ 5 lakh. The object of demand is also shifting. In the FIR and in the deposition of P.W.2, the demand is said to be made for a sum of ₹ 5 lakh for purchasing house and computer by the appellant, whereas, the informant (PW4) has levelled the allegation of the demand of ₹ 5 lakh against entire family members. The object of demand and has been stated to start a business. On these contradictory evidences a presumption of dowry death cannot be drawn. 14. Learned trial Court appears to have been moved by the oral account of the witnesses wherein they have stated that they found marks of injury on the dead body, including marks of throttling. As discussed above if no such injuries were found in the post-mortem examination report, and the learned trial Court believed the oral account, then the proper course should have been to frame charge under Section 302 of the IPC for causing death by throttling. Once the accused is put on trial for the charge under Section 304 B of the IPC, it was incumbent on the part of the prosecution to prove the ingredient of the offence of dowry death, which the prosecution has miserably failed to prove in the present case. Judgment of conviction and sentence is set aside. Appeal is allowed. Sureties are discharged from the liability of their bail bonds. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated. 04.04. 2024. sandeep/ 3