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2006 DIGILAW 564 (JHR)

SUNIL KUMAR JHA v. STATE OF BIHAR

2006-05-08

AMARESHWAR SAHAY

body2006
Judgment : ( 1 ) THIS appeal arises against the judgment of conviction and order of sentence dated 21-08-1998 and 24-08-1998 respectively passed by the Sessions judge, Deoghar in Sessions Trial No. 9 of 1998 whereby, the learned Sessions Judge convicted the appellant for the offence under Section 304-B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years. The other accused namely Shakuntala Devi, the mother-in law of the deceased who was also charged for the said offence, was however acquitted by the Trial Court. ( 2 ) IN Short the prosecution case is that the informant Mukesh Kumar Jha lodged a f. I. R. on 01-07-1997 alleging therein that the accused Sunil Kumar Jha was married to the sister of the informant 3 years back. On 21-05-1997, the appellant Sunil Kumar jha came to the father of the informant and demanded for a Scooter in dowry which was promised to be given to him at the time of his marriage. On refusal of the informants father, the accused threatened him that he would face the consequences. Thereafter, the informants sister was being illtreated and tortured by the in-laws. On 26-06-1997, at about 5. 00 p. m. , the informant received one letter from which, he came to know about sudden death of his sister. On receipt of that letter, the informant proceeded for the in-laws place of his sister on 27-06-1997. After reaching there, he asked as to how his sister suddenly died. At this, the appellant sunil Kumar Jha and his mother started crying and requested the informant to save them and forget whatever has already happened. Subsequently, the villagers informed him that his brother-in-law Sunil Kumar jha and his mother Shakuntala Devi in fact have killed his sister by poisoning. ( 3 ) THE defence case is of denial of the allegations and that the deceased died of natural death due to illness as she was suffering from diarrhoea. It is relevant to mention here that prior to the lodging of the F. I. R. by the informant, the information had already been given to the Police regarding the death of the deceased and the Police had already registered a U. D. Case. An Inquest Report was prepared and the dead body was sent for post-mortem examination. It is relevant to mention here that prior to the lodging of the F. I. R. by the informant, the information had already been given to the Police regarding the death of the deceased and the Police had already registered a U. D. Case. An Inquest Report was prepared and the dead body was sent for post-mortem examination. The post-mortem examination of the dead body of the deceased was held on 19-06-1997. The appellant, who is the husband of the deceased Rubi Devi and his mother shakuntala Devi were charged under Section 304-B of the Indian Penal Code. ( 4 ) IN order of establish charges, altogether 13 witnesses were examined on behalf of the prosecution and one defence witness was also examined on behalf of the defence. Some documents were also exhibited on behalf of the prosecution as well as on behalf of the defence also. On the basis of the evidence adduced by the prosecution, the learned Trial Court convicted and sentenced the appellant as stated in the preceding paragraphs. ( 5 ) IT is the settled law that in order to establish charges under Section 304-B of the indian Penal Code, for ingredients of the offence were necessarily to be established by the presecution :- (i) That the death took place within seven years of the marriage. (ii) The death was not under normal circumstances. (iii) The deceased was tortured and ill treated with regard to demand of dowry; and (iv) That soon before her death, the deceased was subjected to mental or physical cruelty with respect to the demand of dowry. In the present case, I find that so far the second ingredients i. e. the death of the deceased occurred within seven years of her marriage, has been proved. The most important ingredients i. e. as to whether soon before the death of the deceased, was there any demand of dowry made by the appellant and whether for non fulfillment of the said demand of dowry, the victim was ill treated or subjected to cruelty or not, it appears that the informant has stated before the Court that on 21-05-1997, the appellant Sunil Kumar Jha came to the father of the informant and demanded Scooter but his father refused to fulfil the said demand and thereafter, the accused threatened his father to face the consequences. This informant who has been examined as P. W.-11, has stated in paragraph-5 of his evidence that at the time of makingsuch demand of dowry from his father by the appellant, he was not present. Therefore, P. W.-11 cannot be said to be a competent witness to say about the demand of dowry made by the appellant from his father. He is also not competent to say that as to whether any threat was given by the appellant. If at all, this fact could have been stated by the father of the deceased himself who, surprisingly has not been examined by the prosecution, therefore, the prosecution has withheld an important witness from appearing in the case. In the view of the matter, I find that the main ingredients of the offence under section 304 B of the Indian Penal Code i. e. the demand of dowry was made soon before the death of the deceased has not been proved by the prosecution nor it has been proved that she was in any way illtreated or tortured by the appellant for the non fulfillment of the demand of dowry. So far as the fact that the death of the deceased occurred not under normal circumstances, it appears that the said fact was also not established by the prosecution beyond reasonable doubt. It is not disputed that before lodging the F. I. R. in the present case, one U. D. Case was already registered by the Police on the information given by the village Chawkidar and then the Police prepared Inquest Report and the dead body was sent for post-mortem. The Investigating officer of the case, was examined as p. W.-13, and he has admitted that he did not find any external injury on the person of the deceased. From the post-mortem Report (Ext. 1) also, it appears that the Doctor did not find any external or internal injuries on the dead body of the deceased. As a matter of fact, the Doctor has stated in the post-mortem report as well as in his evidence that no cause of death was found by him and therefore, vicera was preserved but, surprisingly enough, the vicera was not sent for examination. This is another serious lacuna in the case of the prosecution. As a matter of fact, the Doctor has stated in the post-mortem report as well as in his evidence that no cause of death was found by him and therefore, vicera was preserved but, surprisingly enough, the vicera was not sent for examination. This is another serious lacuna in the case of the prosecution. ( 6 ) IN view of the above discussions and findings, I hold that the prosecution has not been able to establish the charge under Section 304-B of the Indian Penal Code at all against the appellant. Accordingly, I hold that the learned Trial court has committed error both in law as well as on facts in convicting the appellant for the charge under Section 304-B of the Indian Penal Code. Consequently, this appeal is allowed. The conviction and sentence passed by the Trial court against the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of the bail bonds appeal allowed. --- *** --- .