Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 275 (JHR)

Gopi Kumar Chand v. State through Jyotsna Das

2016-02-08

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This criminal appeal has been directed against the judgment of conviction and sentence dated 1st May, 2006 and 3rd May, 2006 rd respectively passed by learned Additional District & Sessions Judge, F.T.C., Dumka in connection with Sessions case no. 34 of 2005, whereby the appellant has been held guilty for the offence punishable under section 304B of Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution, as it appears from the First Information Report is that Reba Devi (daughter of the informant) was married with the appellant on 10.03.2004 according to Hindu Rites and Custom. Cash and valuables were given in the marriage, but the appellant and his family members were not satisfied with the articles given in the marriage and they put forward demand for a motorcycle and a colour Television and for non-fulfillment of aforesaid demand, Reba Devi was subjected to torture and treated with cruelty by her husband (appellant) and his family members. Between the intervening night of 8-9th June, 2004, Reba Devi sustained burn injury and died in her matrimonial home. It is disclosed that after death of Reba Devi, matter was reported to Superintendent of Police vide Ext-A, but no action was taken and thereafter complaint case vide P.C.R. case no.317 of 2004 was filed in the court of learned Chief Judicial Magistrate, Dumka. The aforesaid complaint was sent to concerned Police Station under section 156(3) of the Code of Criminal Procedure with a direction to register a case and investigate into the matter. On the basis of endorsement made on complaint petition (Ext-3), Shikaripara P.S. Case no.46 of 2004 dated 25.07.2004 for the offence punishable under sections 498A, 326, 406, 304B and 120B I.P.C. was registered against the appellant and his family members. The police, after due investigation, submitted charge sheet for the offences under sections 302 and 304B I.P.C. and accordingly cognizance was taken and the case was committed to the court of Sessions and registered as Sessions Case no. 34 of 2005. 3. Charge under section 304B I.P.C. and/or in alternative section 302 I.P.C. was framed against the appellant to which the appellant pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges, has examined altogether fourteen witnesses including doctor, Investigating Officer and the informant. 34 of 2005. 3. Charge under section 304B I.P.C. and/or in alternative section 302 I.P.C. was framed against the appellant to which the appellant pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges, has examined altogether fourteen witnesses including doctor, Investigating Officer and the informant. Learned 3rd Additional District & Sessions Judge, F.T.C., Dumka placing reliance on the evidence and documents, held the appellant guilty for the offence punishable under section 304B I.P.C. and the alternative charge under section 302 I.P.C. stands not proved. 4. Learned counsel for the appellant, who has been appointed as Amicus Curiae, submitted that death of Reba Devi was an accident because she was caught under fire while she was arranging bed, there was wick lamp placed in the room which accidentally fell down and due to that, Sari of Reba Devi caught under fire, which gradually aggravated and capture the whole body of Reba Devi and she died due to burn injury. The appellant was not present in the room where Reba Devi caught under fire and he was sitting in the shop. On Hulla, he reached to the room and found Reba Devi badly burnt. Like a law abiding citizen, he had informed the police in writing about accidental death of Reba Devi and on the basis of information lodged by the appellant, UD Case no.8 of 2004 was registered and investigation was carried out. Post Mortem was done. Information regarding death of Reba Devi was also communicated to her mother and relatives, who had visited the matrimonial home of Reba Devi and seen the dead-body. They did not raise any voice at that point of time nor they informed the police regarding allegation of demand of dowry and torture. No report at any police station was lodged by the informant or by any of her relatives. After one month, a compliant petition was filed in the court of Chief Judicial Magistrate, Dumka, which was sent to the concerned Police Station under section 156(3) Cr.P.C. to register the case and also to investigate into. 5. It is submitted that the Investigating Officer did nothing and submitted charge sheet against the appellant. Nothing incriminating has been recovered from the place of occurrence. Investigating Officer did not examine the other investigating officer, who was entrusted with investigation of UD case. 5. It is submitted that the Investigating Officer did nothing and submitted charge sheet against the appellant. Nothing incriminating has been recovered from the place of occurrence. Investigating Officer did not examine the other investigating officer, who was entrusted with investigation of UD case. He did not bother to bring on record the result of UD case. The appellant has proved that on the basis of information lodged by him, UD case was registered and that has been marked as Ext-5. Only because a bride lost her live in her matrimonial home within seven years of her marriage and the death occurred due to burn or badly injury or as otherwise, in normal circumstance, the husband or relatives of the deceased should not be punished for the offence punishable under section 304B I.P.C. The evidence brought on record by the prosecution is equally important to be considered to come to a just decision of the case to hold the accused guilty for the offence of dowry death. It is not a case in which death of Reba Devi was not explained and, therefore, the finding of the trial court taking recourse to section 113B of the evidence Act was unwarranted. Learned Additional District & Sessions Judge considering the required ingredients of section 304B I.P.C. has held the appellant guilty and sentenced him to undergo rigorous imprisonment for life. Learned Additional District & Sessions Judge has not considered the evidence on record and mis-appreciated the same while coming to the conclusion. 6. The complaint on the basis of which Shikaripara P.S. Case no.46 of 2004 was registered has not been proved. The endorsement made on the complaint petition has been proved as Ext-3. Needless to mention, original complaint petition has not been brought on record. On the basis of xerox copy of said complaint petition, Shikaripara P.S. Case no.46 of 2004 was registered. Content of the compliant has not been proved. The requirement of section 156(3) Cr.P.C. is also lacking. The xerox copy of signed copy of complaint petition has been brought on record and original signature of the complainant is also missing. The prosecution has failed to prove the F.I.R. Furthermore, I.O. has also failed to prove the prosecution case because place of occurrence was not expected to remain as it is, after lapse of 1½ months. The xerox copy of signed copy of complaint petition has been brought on record and original signature of the complainant is also missing. The prosecution has failed to prove the F.I.R. Furthermore, I.O. has also failed to prove the prosecution case because place of occurrence was not expected to remain as it is, after lapse of 1½ months. The truth behind information lodged by the appellant has not been brought on record. Inquest report has not been proved rather the witnesses, who have signed the inquest report have proved their signatures. Admittedly, there is no eye witness to the occurrence. The prosecution witnesses, who have supported the case, are close relatives of deceased and they have deposed on the basis of hearsay information. The prosecution has failed to prove charge under section 304B I.P.C. and the findings of the trial court are based on conjecture. 7. Learned counsel appearing on behalf of the State has opposed the contention and submitted that the prosecution has proved its case because all ingredients of section 304B I.P.C. have well been proved. The deceased died within three months of her marriage, she was subject to cruelty for want of more dowry. 8. We have examined the case records, evidence and documents available and also perused the impugned judgment. First of all, we would like to point out the technical lacunae appearing in the prosecution case. Dumka-Shikaripara P.S. Case no.46 of 2004 dated 25.07.2004 was registered on the basis of xerox copy of a compliant of P.C.R. Case no.317 of 2004, which was forwarded to O.C., Shikaripara Police Station under section 156(3) Cr.P.C. by learned Chief Judicial Magistrate, Dumka. This xerox copy of the complaint petition does not bear original signature of the complainant rather xerox copy of complaint was forwarded. Since original signature of the complainant was not appearing, the complaint, which has later been termed as First Information Report, does not fulfill requirement of section 154 Cr.P.C. Furthermore, the F.I.R., which puts law into motion, has not been proved. 9. The inquest report has also not been proved. Admitted case of the prosecution is that initially UD case was registered on the basis of information lodged by the appellant and investigation was carried out. What was the result of investigation of that UD case has not been brought on record. 9. The inquest report has also not been proved. Admitted case of the prosecution is that initially UD case was registered on the basis of information lodged by the appellant and investigation was carried out. What was the result of investigation of that UD case has not been brought on record. The Investigating Officer of said UD case was neither examined by the Investigating Officer of present case nor he has come forward to depose. Learned trial court did not know as to how a document is to be proved and he has gone to the extent of exhibiting xerox copy of the documents and in that context, he has marked xerox copy of information lodged vide UD case no.8 of 2004 dated 9.6.2004 as Ext.5. Unless it is proved that original document is either lost or not possible to bring it on record without inordinate delay, the secondary evidence cannot be taken into consideration. We find that the documents like F.I.R. of present case and the F.I.R. of UD case have not properly been proved but reliance have been placed for deciding the case. 10. The factual matrix of the case is that Reba Devi died in her matrimonial home due to burn injury caused on 8.6.2004. The informant and the other witnesses have stated that they had seen the dead-body, but they did not inform the police nor they raise allegation against the appellant or his family members. After more than a month, a complaint petition was filed raising allegation of demand of dowry and torture. The delay in lodging the F.I.R. creates serious doubt against the authenticity of contentions made in the complaint. P.W.1-Subhash Chandra Mandal and P.W.2-Mithai Soren are the formal witnesses and they have proved their signatures appearing on the inquest report. P.W.9-Mithu Gupta, P.W.10-Tapas Kumar Chand, P.W.12-Priya Ranjan Gupta have been tendered by the prosecution whereas P.W.8-Jitendra Bhandari has turned hostile. P.W.3-Basu Dev Sadhu, P.W.4-Kanahai Lal Sadhu are the maternal uncle; P.W.11-Jyotsana Das is the mother of the deceased; they all are the hearsay witnesses. All these witnesses have given stereo type evidence that Reba Devi was subjected to torture for want of more dowry and she has been done to death. The statements of aforesaid witnesses find support by P.W.5-Sampat Das (cousin) and P.W.6-Bhola Nath Das (brother) of the deceased. All these witnesses have given stereo type evidence that Reba Devi was subjected to torture for want of more dowry and she has been done to death. The statements of aforesaid witnesses find support by P.W.5-Sampat Das (cousin) and P.W.6-Bhola Nath Das (brother) of the deceased. From the evidence available on record, we do not find that all ingredients of section 304B I.P.C. stood proved by the prosecution. It is reiterated that appellant has lodged information regarding accidental burn of the deceased and investigation was carried out after registration of UD case. The appellant has explained death of Reba Devi, which had occurred otherwise than in normal circumstance in her matrimonial home. We have also considered this fact that no information to any police station was lodged by informant or any of her relatives just after they received information regarding death of Reba Devi or after they had seen the dead-body. 11. Considering all these aspects of the matter, we do not feel inclined to uphold the judgment of conviction and sentence against the appellant passed by learned 3rd Additional District & Sessions Judge, F.T.C., Dumka in connection with Sessions Case no. 34 of 2005. 12. In the result, this appeal is allowed and the judgment of conviction and sentence as passed by the trial court is hereby set aside. The appellant, named above, who is in custody, is hereby directed to be released forthwith, if not wanted in any other case.