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2016 DIGILAW 859 (JHR)

Babun Rabidas @ Babun Das v. State of Jharkhand

2016-05-17

ANANT BIJAY SINGH, PRADIP KUMAR MOHANTY

body2016
JUDGMENT : This criminal appeal is directed against the judgment of conviction dated 12.07.2007 and order of sentence dated 13.07.2007 passed by Sri Birendra Prasad Singh, learned Additional Sessions Judge, (F.T.C), Koderma in Sessions Trial No. 81/2005 whereby, the appellants having been found guilty of offence under Section 304-B I.P.C, have been sentenced to undergo imprisonment for life. 2. The case of the prosecution, in brief, is that the daughter of the informant, namely, Manju Devi had been married with Umesh Rabidas, son of Babun Rabidas in May, 2004. It has been alleged that after marriage, Umesh Rabidas, his father Babun Rabidas and his mother Bundia Devi started demanding colour T.V. and motorcycle as dowry and in order to fulfill the dowry demand, the husband, father-in-law and mother-in-law of Manju Devi started ill treating and torturing the informant's daughter. It has been further alleged that the son-in-law of the informant ousted the informant's daughter and left for Delhi. Later on the informant came at Nimadih and tried to make solution with the in-laws of his daughter and assured them to fulfill the demand. It has been further alleged that on 02.10.2004 at about 8.00 A.M. Babun Rabidas came at Jehnadih and told the informant that he has been called by his daughter. When the informant reached the house of his daughter, he found that his daughter was lying dead on a cot. He also found cut injuries on her neck and a blood stained knife by the side of the cot on the ground. 3. On the basis of the written report of the informant, Markacho P.S. Case No. 59 of 2004 was registered for the offence under Sections 304-B/120-B IPC against the five accused persons including theappellants. 4. After completion of investigation, charge-sheet was submitted against five accused persons as named in the written report showing the accused Umesh Rabidas as absconder. At the time of commitment, four accused persons were committed to the Court of Sessions and out of them, Dilip Rabidas was declared juvenile and the case record with respect to Dilip Rabidas was separated and sent to the Juvenile Court, Koderma and thereafter the charges were framed against three accused persons under Sections 304-B and 120-B I.P.C. The accused-appellants were also examined under Section 313 Cr.P.C to which they pleaded not guilty and claimed to be tried. 5. 5. In order to prove the charge against the accused persons, the prosecution has examined altogether 12 witnesses including the doctor and the I.O. and learned Trial Court after considering the materials on record and also the evidence of the prosecution witnesses has found the charge levelled against the accused persons to be proved under Section 304B I.P.C. and thereafter sentenced them to undergo imprisonment, as aforesaid. However, learned Trial Court acquitted the accused Champa Devi, who is the daughter of appellant No.1, from the charges levelled against her. 6. Basing upon the evidence of the witnesses of the occurrence, learned counsel for the appellants has assailed the judgment of conviction of learned Court below on the ground that there is no material on record against the appellants to prove the charges levelled against them. The appellants are old aged persons. There is no evidence against them with regard to demand of dowry and torture. There is no material exhibit and there is no F.S.L report. There is no material to show that soon before her death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. The sentence of the appellants is excessive and it may be reduced. 7. On the other hand, learned Additional Public Prosecutor has vehemently opposed the contentions raised by learned counsel for the appellants and submitted that the deceased was married in May, 2004 and occurrence took place in October, 2004 i.e. within five months. There is allegation of demand of dowry and torture against the appellants. There is no illegality or infirmity in the impugned judgment of conviction of learned Court below. 8. We have heard learned counsel for both the sides and also perused the materials and evidence on record. 9. PW.1 Bhawani Rabidas is the informant's brother. He has stated that Manju Devi (deceased) died about 4-5 months after her marriage. She died in her matrimonial house where her father-in-law, Mother-in-law, Sister-in-law and brother-in-law were residing. About two or three months after her marriage, the husband, mother-in-law, father-in-law of the deceased started demanding colour T.V and motorcycle as dowry and in this regard the deceased was being ill-treated by them. 10. P.W.2 Rameshwar Rabidas is the maternal uncle of the deceased. He also corroborated the factum of marriage between the deceased Manju Devi and Umesh Rabidas. He is a hearsay witness. 11. 10. P.W.2 Rameshwar Rabidas is the maternal uncle of the deceased. He also corroborated the factum of marriage between the deceased Manju Devi and Umesh Rabidas. He is a hearsay witness. 11. P.W.3 Damodar Rabidas is the brother of the deceased. He has supported the factum of marriage of the deceased with Umesh Rabidas. He has also supported the factum of demanding dowry by the appellants. 12. P.W.4 Laloo Das is the resident of the informant's village. He has supported the fact that the deceased died in matrimonial house. 13. P.W.5 Tuntun Sah is the uncle of the deceased. He has stated that in his presence, the demand of colour TV had been made after two or three months of the marriage. 14. P.W.6 Dinesh Toppo is the Investigating Officer of the case. He has stated that after getting information, he went to the place of occurrence with the informant and prepared inquest report and seizure list. He sent the dead body for postmortem examination. He also recorded the statements of the witnesses and submitted charge-sheet against five accused persons including the appellants. 15. P.W.7 Bhola Das is the uncle of the deceased. He has stated that after marriage, the deceased was residing with her husband in her matrimonial house. After the marriage, the accused persons started demanding motorcycle and colour TV from the deceased. 16. P.W. 8 Badri Thakur has stated that the deceased died in her matrimonial house. The husband, father-in-law, mother-in-law and sister-in-law were demanding motorcycle and colour TV as dowry, but due to non-fulfilment of the above demand, she had been killed. 17. P.W.9 Laldhari Rabidas is the informant. He has supported the fact that he has lodged this case and Manju Devi (deceased) was his daughter who had been married with Umesh Rabidas. His daughter was residing in her matrimonial house along with her mother-in-law, father-in-law and husband. After the marriage, they started demanding T.V. and motorcycle as dowry and in order to fulfill that demand, his daughter was being subjected to cruelty. He came to know about the demand of dowry from his daughter. Thereafter, he went there and tried to make solution about the fulfilment of demand on which Umesh Rabidas threatened that his daughter will be killed, if the demand of T.V. and motor-cycle is not fulfilled and thereafter he left for Delhi on 02.10.2004. He came to know about the demand of dowry from his daughter. Thereafter, he went there and tried to make solution about the fulfilment of demand on which Umesh Rabidas threatened that his daughter will be killed, if the demand of T.V. and motor-cycle is not fulfilled and thereafter he left for Delhi on 02.10.2004. His Samdhi Babun Rabidas came to his house and told him that his daughter is weeping and calling him. Thereafter, the informant went there and found that his daughter was lying dead on a cot. 18. P.W.10 Mani Ram is co-villager, who has stated that on 02.10.2004 he was present at his house. After hearing the voice of the people, he came to the house of Babun Rabidas where the dead body of the daughter-in-law of Babun Rabidas was found dead lying on a cot. Police came there and prepared the seizure list on which this witness and Dhaneshwar put their L.T.I. 19. P.W.11 Dhaneshwar Yadav is co-villager, who has stated that he was present in his village. Police came in his village and then he arrived at the house of Babun Rabidas where the dead body of Manju Devi was seen by this witness. 20. P.W. 12 Dr. Pawan Kumar conducted autopsy on the dead body of the deceased Manju Devi and found the following injuries : (i) Externally rigor present; (ii) Incised wound 12 cm x 8 cm over anterior aspect neck; (iii) Trachea cut Cricoid cartiledge cut and exposed; (iv) Mendable cut and exposed; (v) Oesophagus cut; (vi) Bleeding present; (vii) Pharynx and Larynx cut; (viii) Bilateral sternocleidomastoid muscle cut; (ix) Right shoulder dislocated. In his opinion, the death was caused due to asphyxia following injury with sharp object and shock (above mentioned injuries). He proved his signature on the post-mortem examination report which has been marked as Ext. 5. 21. Learned counsel for the appellants has referred to and relied on a decision of the Hon'ble Supreme Court in Sher Singh @ Partapa Vs. He proved his signature on the post-mortem examination report which has been marked as Ext. 5. 21. Learned counsel for the appellants has referred to and relied on a decision of the Hon'ble Supreme Court in Sher Singh @ Partapa Vs. State of Haryana reported in 2015(3) SCC 724 wherein the Hon'ble Supreme Court has held that initial burden is on prosecution to prove by preponderance of probabilities the ingredients of Section 304-B requiring prosecution to prove these ingredients beyond reasonable doubt would defeat purpose of Section 304-B. Once such initial burden is discharged by prosecution, initial presumption of innocence of accused would get replaced by deemed prosecution of guilt of accused. Burden would then be shifted on accused to rebut that deemed presumption of guilt by proving beyond reasonable doubt his innocence. Right to life and liberty of accused cannot be jeopardised without providing accused opportunity to prove his innocence. 22. In view of the above, we find no illegality or infirmity in the impugned judgment of conviction and sentence of learned Trial Court. It has been submitted at the Bar that the appellants have already remained in custody for more than eleven years and as such their sentence may be reduced. 23. In the facts and circumstances of the case, this appeal is allowed modifying the sentence to ten years in place of imprisonment for life. This Court set off the detention of the accused-appellants under Section 428 Cr.P.C. and directs the above named appellants to be released forthwith from custody if not required in any other case. Appeal allowed.