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Jharkhand High Court · body

2014 DIGILAW 911 (JHR)

Uday Kant Jha v. State of Jharkhand

2014-08-29

H.C.MISHRA

body2014
Judgment H.C. Mishra, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been found guilty for the offence under Section 304-B of the Indian Penal Code and has been convicted for the same by Judgment dated 6.8.2002 passed by the learned 2nd Additional Sessions Judge, Bokaro, in Sessions Trial No. 15 of 1999. Upon hearing on the point of sentence, the appellant has been sentenced to undergo rigorous imprisonment for seven years for the said offence. The other co-accused persons facing the trial have been acquitted by the Trial Court finding no offence against them. 3. The prosecution case was lodged on the basis of the fardbeyan of the informant Chandrakant Khan, which was recorded at Gujrat Colony near Shiv Mandir, on 25.4.1998 at 20.45 hours. It is stated in the FIR that the daughter of the informant was married to the appellant about three years ago and one son and one daughter were born to the deceased, who was being subjected to cruelty and torture for demand of dowry by her husband, the elder brother of her husband and his wife and their sons, for demand of Rs. 10,000/- in dowry. It is stated that the deceased came to the house of the informant on 20.4.1998 making demand of dowry and informing that she would be killed if demand of dowry was not fulfilled, whereupon the informant sent her back with Rs. 6,000/-. On 25.4.2998 the informant was informed that his daughter was done to death, whereupon, he went to the house of the accused, but did not find any one there. Even the dead body of his daughter was not found in the house. He was informed by the persons nearby that the accused persons had taken the dead body for cremation, whereupon, he went to the cremation ghat, but he did not find them. On the basis of the information given by the informant, case was instituted against the appellant and other co-accused persons for the offence under Sections 304-B, 201/34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted charge sheet, and the accused persons were ultimately put to trial, after commitment of the case to the Court of Session. 4. After investigation, the police submitted charge sheet, and the accused persons were ultimately put to trial, after commitment of the case to the Court of Session. 4. In course of trial, seven witnesses have been examined on behalf of the prosecution, out of whom, P.W.4 Savitri Devi and P.W.5 Nand Kumar Singh, have turned hostile and they have not supported the prosecution case. The prosecution case is supported by P.W.1 Anil Jha, who is a neighbour of the appellant, P.W.3 Rubi Kumari @ Rubi Jha, who is the step sister of the deceased, P.W.6 Nilam Devi, who is the step mother of the deceased and P.W.7 Chandrakant Khan, who is the father of the deceased and informant of the case. P.W.2 Dr. Ratenshwar Prasad Verma, had conducted the postmortem examination upon the dead body of the deceased. The Investigating Officer of the case has not been examined during trial. After recording the statement of the accused persons under Section 313 of the Cr.P.C, one defence witness was also examined, who is D.W.1 Jitendra Choudhary, who has been examined in order to prove the defence version that there were differences between the informant and his family members and the deceased, as she was the daughter from the first wife of the informant. According to the defence case, the deceased had given some loan to her father, which she was demanding back, due to which she was assaulted and humiliated, and she committed suicide. 5. P.W.7 Chandrakant Khan, who is the informant of the case, has supported the prosecution case and has stated that after getting the information about the occurrence, he first went to the Superintendent of Police and thereafter he went to the Police Station, and with police, he came to Gujrat Colony at Chas to the house of his son-in-law, where he was informed by the neighboring persons that the accused persons had taken away the dead body of the deceased. He has further stated that the police asked him to accompany them in search of the dead body, but he did not go with the police. On the next day, he went to the house of his son-in-law and found bloodstains and he was informed that the dead body was at the Police Station, whereupon, he went to the Police Station and found the dead body of his daughter, which was burnt. On the next day, he went to the house of his son-in-law and found bloodstains and he was informed that the dead body was at the Police Station, whereupon, he went to the Police Station and found the dead body of his daughter, which was burnt. The dead body was sent for postmortem examination. This witness has refused to identify his signature on the inquest report, whereupon the same was marked 'X' for identification. This witness has identified his signature on the fardbeyan, which was marked as Exhibit-1/1. In his cross-examination, this witness has admitted that the accused was living only with his wife at Gujarat Colony and in the same house, children were also born. He has also admitted in his cross-examination that he had given the fardbeyan about the occurrence on the next morning at the Police Station. He had reached the police station at 8.30 in the morning and at about 9.00 to 9.30 a.m., in the morning, he had put his signature on the fardbeyan. He has stated that he had not made any signature on any other document. This witness has also admitted in his cross-examination that after postmortem, the dead body was sent to cremation ghat, where the dead body remained for about three days. He has stated that the police asked him to get the dead body cremated but he did not cremate the dead body. He has admitted in his cross-examination that the police asked him on 26th and 27th of April 1998 to cremate the dead body, but he did not go to the cremation ghat on those dates. On 28.4.1998, again at the direction of the police, the dead body was cremated by him. In his cross-examination, this witness has further admitted that after marriage of his daughter, no one had demanded any dowry from him. He has also stated that from the year 1995 to 1998, his daughter was not subjected to any cruelty or torture for demand of any dowry, but he has stated that demand was being made. He has also stated that he was informed about the demand of dowry by his daughter. He has denied the suggestion that he had taken Rs. 10,000/- as loan from his daughter, which was not being returned by him and when she came to demand the money, she was assaulted by him. 6. He has also stated that he was informed about the demand of dowry by his daughter. He has denied the suggestion that he had taken Rs. 10,000/- as loan from his daughter, which was not being returned by him and when she came to demand the money, she was assaulted by him. 6. P.W.1 is Anil Jha, who has claimed to be a neighbour of the accused and he has also supported the prosecution case, stating that on 25.4.1998, the appellant had burned his wife to death. Thereafter, he went to the place of occurrence and he saw the dead body in the house and the appellant fled away. He informed the informant about the occurrence. The police came to the place of occurrence and prepared the inquest report of the dead body, upon which this witness had put his signature. He has identified his signature on the inquest report, which was marked as Exhibit-1. He has also stated that the inquest report was not prepared in his presence. In his cross-examination, this witness has stated that he had not seen any occurrence himself. He has also stated that he had put his signature on the inquest report at the Police Station and he has denied the suggestion to have given false evidence being the nephew of the informant. 7. P.W.3 Rubi Kumari @ Rubi Jha and P.W.6 Nilam Devi, are the step sister and the step mother of the deceased and they also supported the prosecution case, but they have not seen any occurrence. They were only informed about the occurrence. P.W.6 Nilam Devi, who is step mother of the deceased, has admitted in her cross-examination that it was the deceased, who was demanding dowry from them and none of the accused had ever made any demand of dowry. She has also denied the suggestion that the deceased had given Rs. 10000/- as loan to her husband, which was not being returned. P.W.2 Dr. Ratenshwar Prasad Verma had conducted the postmortem examination on the dead body and he has proved the postmortem report prepared by him and has also proved that the deceased had died due to burn injury. As stated earlier, the Investigating Officer has not been examined in this case. 8. P.W.2 Dr. Ratenshwar Prasad Verma had conducted the postmortem examination on the dead body and he has proved the postmortem report prepared by him and has also proved that the deceased had died due to burn injury. As stated earlier, the Investigating Officer has not been examined in this case. 8. Learned counsel for the appellant has submitted that the impugned judgment passed by the Court below is absolutely illegal, inasmuch as, on the basis of the evidence on record, the prosecution has utterly failed to prove the charge against the appellant beyond all reasonable doubts. It is also submitted by learned counsel for the appellant that from the cross-examination of the material witnesses, it is apparent that the defence version, that the deceased had advanced some money to her father, which was not being returned back and upon demand, she was assaulted and humiliated, due to which she had committed suicide, gets support. Learned counsel for the appellant has submitted that this case is full of contradictions in the evidence and the I.O. has not been examined in this case, which has caused serious prejudice to the defence. Learned counsel has accordingly, submitted that the impugned judgment of conviction and order of sentence cannot be sustained in the eye of law. 9. Learned counsel for the State, on the other hand, has submitted that even though the I.O. has not been examined in this case, but the material witnesses have fully supported the prosecution case and it has been established that the deceased was married to the appellant about three years prior to the occurrence and she was being subjected to cruelty and torture for demand of dowry and the dead body was found in the house in burnt condition. Learned counsel has accordingly, submitted that all the ingredients of Section 304-B of the Indian Penal Code are proved by the prosecution witnesses and there cannot be any interference in the conviction and sentence of the appellant. 10. After having heard learned counsels for the parties and upon going through the record, I find that the FIR or the inquest report of the dead body have not been proved in this case. Only the signatures on these documents have been proved. The signature of Anil Jha (P.W.1) has been proved on the inquest report. 10. After having heard learned counsels for the parties and upon going through the record, I find that the FIR or the inquest report of the dead body have not been proved in this case. Only the signatures on these documents have been proved. The signature of Anil Jha (P.W.1) has been proved on the inquest report. The inquest report shows that the same was prepared at the house of the accused Uday Kant Jha at Gujarat Colony on 26.4.1998 at 5.00 a.m. The witness (P.W.1), however, has stated that he had put his signature on the inquest report at the Police Station. According to the prosecution case, as stated in the FIR, when the informant went to the place of occurrence, he did not find the dead body at the house and thereafter he searched the dead body at the nearby cremation ghat, where also dead body was not found by him. According to evidence of P.W.7, the informant, he has stated that he went to the place of occurrence on the day of occurrence. He did not find the dead body in the house and the police requested him to accompany in search of the dead body, but did not go with the police. He saw the dead body for the first time at the Police Station on the next day. Thus, the evidence on record shows that dead body was not found in the house when the informant and the police reached there, but the inquest report shows that it was prepared in the house of the accused on 26.4.1998 at 5.00 a.m., i.e., the next morning of the occurrence. This apart, according to the FIR, the fardbeyan was recorded by the police near the house of the accused at Gujrat Colony on the date of occurrence itself , i.e., 25.4.1998 and it bears the signature of the informant with date as 25.5.1998. This apart, according to the FIR, the fardbeyan was recorded by the police near the house of the accused at Gujrat Colony on the date of occurrence itself , i.e., 25.4.1998 and it bears the signature of the informant with date as 25.5.1998. The fact, however, remains that P.W.7, Chandrakant Khan, who is the informant in the case, has stated that he had given the fardbyan to the police on the next day at the Police Station in the morning at about 9.00 to 9.30 a.m. These are the serious discrepancies in the prosecution case, which could be cleared by the I.O., but the I.O. has not been examined in this case and I find force in the submission of the learned counsel for the appellant that the defence has been seriously prejudiced by non-examination of the I.O. 11. Apart from the above, the material witnesses, who are the father and step mother of the deceased have admitted in their cross-examination that there was never any demand of dowry from the appellant. P.W.7 the informant has stated that after the marriage of his daughter, no one had demanded any dowry from him and he has gone to the extent by admitting that from the year 1995 to 1998 no one had subjected his daughter to cruelty or torture for any demand of dowry. Similar is the admission of P.W.6, Nilam Devi, who is step mother of the deceased, that none of the accused had ever demanded dowry from them and whatever demand was made, it was by the deceased herself. If the relationship between the deceased and his father is looked into, that also gives a strange picture. According to admission of P.W.7, the informant, the dead body was sent to cremation ghat where it remained for three days and in spite of insistence of the police, the informant did not go to cremate the dead body and ultimately on the third day, i.e., on 28.4.1998, the cremation was done. This is a bizarre circumstance and at least, supports the defence version that there was strained relationship between the daughter and the father. In my considered view the defence has succeeded in creating the doubt as regards the prosecution case. This is a bizarre circumstance and at least, supports the defence version that there was strained relationship between the daughter and the father. In my considered view the defence has succeeded in creating the doubt as regards the prosecution case. It is a well settled principle of law that defence is not required to prove its case, rather it succeeds only by creating a reasonable doubt as regards the prosecution case. It is for the prosecution to prove its case beyond all reasonable doubts. 12. In view of the aforementioned discussions, particularly in view of the fact that it is admitted by the material witnesses that no demand of dowry was ever made by the appellant and the deceased was not subjected to any cruelty or torture for demand of dowry, I am of the considered view that no offence can be said to be made out against the appellant for the offence under Section 304-B of the Indian Penal Code, even though the dead body of the deceased was found in the house of the appellant and it is established that death had been caused due to burning. The prosecution has failed to prove its case beyond all reasonable doubts and it is a fit case in which the appellant ought to have been acquitted of the charge, giving at least the benefit of doubt. 13. For the forgoing reasons, the impugned Judgment of conviction and Order of sentence dated 6.8.2002 passed by the learned 2nd Additional Sessions Judge, Bokaro, in Sessions Trial No. 15 of 1999, is hereby, set aside. The appellant Uday Kant Jha is given the benefit of doubt and he is acquitted of the charge. The appellant is on bail, and he is discharged from the liabilities of his bail bond. 14. This criminal appeal is, accordingly, allowed. Let the Lower Court Records be sent back forthwith. Appeal allowed.