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2006 DIGILAW 1321 (JHR)

Bipin Sah v. State Of Jharkhand

2006-11-14

DABBIRU GANESHRAO PATNAIK, RAKESH RANJAN PRASAD

body2006
ORDER 1. The sole appellant, Bipin Sah was put on trial along with other accused persons, namely, Pramod Sah, Rita Devi, Kalawati Devi, Jugul Sah and Munshi Sahu (died in course of the trial) to face charges under Sections 304(B) of the Indian Penal Code and 3/4 of the Dowry Prohibition Act on the allegation that they committed dowry death of Champa Devi, daughter of the informant, Baldeo Sah (PW 3). The trial Court while acquitting the other accused persons, convicted the appellant under Section 304(B) of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act and consequently sentenced him to undergo imprisonment for life under Section 304(B) of the Indian Penal Code. However, no separate sentence was passed under Section 3/4 of the Dowry Prohibition Act. 2. The case of the prosecution is that Champa Devi was married to this appellant in the month of May 1995 and after the marriage she came to her matrimonial home and whenever she had occasion to come to the house of her parents she complained that she is being harassed by the accused persons for dowry. 3. Further case is that on 14.10.1996 at about 5 a.m. in the morning the accused, Jugul Sahu and Pramod Sahu (brothers of the appellant) came to the house of the informant and informed that Champa Devi is lying unconscious. On getting this information the informant, Baldeo Sah, PW 3 and his wife, Kawalpati Devi, PW 7 came to her daughters place, but found her dead. The Informant did notice some injuries on the person of the deceased and hence it was suspected that the accused persons, including the appellant committed murder of Champa Devi on account of non- fulfillment of the demand of Rs. 50,000/- and a Herohonda Motor cycle as well. 4. Accordingly, the informant, Baldeo. Sah (PW 3) gave his fardbeyan (Ext. 3) before the Town Police Station, Daltonganj. On the basis of which the case was registered under Sections 498-A, 304(B)/34 of the Indian Penal Code and also under Section 3/4 of the Dowry Prohibition Act and accordingly a formal FIR (Ext. 4) was drawn. 5. Thereafter the matter was taken up for investigation. In the course of investigation, the police sent the dead body for post-mortem examination. Dr. 4) was drawn. 5. Thereafter the matter was taken up for investigation. In the course of investigation, the police sent the dead body for post-mortem examination. Dr. Krishna Murari Sah (PW 8) held autopsy on the dead body of Champa Devi and found the following ante-mortem injuries: (i) Transverse continuous ligature mark round the neck below thyroid. Echymosis was found present alongwith the edge of the ligature mark. On dissection the muscle of the neck was found contused and there was fracture of pharynx and trachea. (ii) There was laceration on the right side of the chest size 4" x 1/2". (iii) Multiple abrasion was found on the right leg. The doctor issued post-mortem report (Ext. 2) with an opinion that the death was caused due to asphyxia resulting from strangulation. 6. After completion of the investigation, the police submitted charge-sheet, accordingly the cognizance of he offences was taken against the accused persons and in due course when the charges were framed accused pleaded not guilty and claimed to be tried. 7. In course of the trial as many as many 10 witnesses were examined. Of them PW 1, Ravindra Kumar, PW 2, Manik Chand Mahto, PW 4, Amresh Kumar, all residents of the same place as that of appellant, have not said anything in support of the charges levelled against the accused persons. The informant, PW 3, in his examination-in-chief, also did not support the case, as had been made out in the first information report and hence he was declared hostile. However, in cross- examination, he testified that he had made statement before the police that her daughter had disclosed to them that the members of the in-laws family some time used to harass her for dowry. On the other hand, PW 7, the mother of the deceased did not depose anything regarding demand of the dowry by the accused persons or subjection to cruelty/harassment to the deceased on account of the demand of dowry. 8. After the case of the prosecution was closed the appellant was questioned under Section 313, Cr PC about the incriminating evidences brought against him, to which he denied. 9. On the basis of the evidences, the learned trial Court, while acquitting the other accused persons did hold the appellant guilty for the charges leveled against him and accordingly convicted and sentenced him as aforesaid. 10. 9. On the basis of the evidences, the learned trial Court, while acquitting the other accused persons did hold the appellant guilty for the charges leveled against him and accordingly convicted and sentenced him as aforesaid. 10. Being aggrieved with the order of conviction and sentence, this appeal has been preferred on behalf of the appellant. 11. Learned Counsel appearing for the appellant submits that there has been absolutely no legal evidence that the deceased was subjected to torture or ill- treatment in connection with the demand of the dowry or that soon before the death the deceased was subjected to harassment or cruelty by her husband or relative of her husband still the appellant was convicted, which is quite illegal and hence the order of conviction and sentence is fit to be set aside. 12. Having heard the learned Counsel for the parties and perusing the record, we do find that the trial Court in coming to the conclusion of the guilt of the appellant took into consideration primarily that the deceased was found dead in a room, belonging to the appellant, and there was some injuries on the person of the deceased, which incriminating evidences are sufficient to hold the appellant guilty even under Section 302 of the Indian Penal Code and taking into consideration this aspect of the matter coupled with the evidence led by PW 3 that he had made statement before the police that the deceased was being harassed/ tortured on account of dowry, did hold that the appellant is guilty for committing offence under Section 304(B) of the Indian Penal Code. 13. Before adverting further in the matter, we may reiterate that in order to bring the charge home under Section 304(B) of the Indian Penal Code, the following essentials must be satisfied: (1) The marriage took place within seven years of death: (2) The death of the woman must have been caused under abnormal circumstances i.e. burns or bodily injuries or otherwise than any normal circumstances; (3) Such torture and ill-treatment must be for or in connection with demand of dowry; and (4) Soon before the death, the woman must have been subjected to harassment or cruelty by her husband or in laws. It is only when the above ingredients are established by the acceptable evidence, such death shall be called dowry death and the husband or his relatives shall be deemed to have caused her death. 14. Therefore, it can be said that in order to bring the charge home under Section 304(B) of the Indian Penal Code the prosecution is bound to establish all the ingredients as referred to above, including the factum that the deceased was subjected to torture/ill-treatment in connection with the demand of the dowry and that soon before the death the deceased was subjected to harassment or cruelty by her husband or by husbands relative. Therefore, one cannot be found guilty under Section 304(B) of the Indian Penal Code, if the deceased is found dead even under suspicious circumstances, unless all the ingredients as mentioned above are fulfilled. 15. Coming to this aspect of the matter, relating to demand of dowry and subjection to cruelty for non-fulfillment of such demand, we do find that the witnesses examined by the prosecution, except PW 3, the informant, are silent on the point of demand of dowry and on the point of ill- treatment/torture/harassment meted out to the deceased. Even PW 3, the informant in his examination-in-chief, did not say anything about the said allegations and hence he was declared hostile. However, in the cross-examination, at one point of time he says he had made statement before the police that the deceased used to disclose them about the harassment being meted out to her on account of the demand of dowry, but the witness again deposes that he had not stated such thing before the police yet, inspite of such contradictory statement reliance was placed on his testimony on the point of harassment/torture even in absence of the testimony of the 10, who only could have confirmed whether such statement was made before him by PW 3 or not? Moreover, for the moment, if it is accepted that PW 3 might have stated before the police regarding demand of dowry, still the prosecution cannot be said to have succeeded in proving the charge as PW 3 is absolutely silent on the issue that the deceased had been subjected to harassment or cruelty soon before the death. Moreover, for the moment, if it is accepted that PW 3 might have stated before the police regarding demand of dowry, still the prosecution cannot be said to have succeeded in proving the charge as PW 3 is absolutely silent on the issue that the deceased had been subjected to harassment or cruelty soon before the death. Thus, we find that the necessary elements warranting conviction of the appellant under Section 304(B) of the Indian Penal Code are lacking and therefore, the trial Court can certainly be said to have committed illegality in convicting the appellant for the charges under Section 304(B) of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. Accordingly the impugned judgment is set aside and the appellant is acquitted of the charges leveled against him and is directed to be released forthwith, if not wanted in any other case{s). 16. In the result, this appeal stands allowed.