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2017 DIGILAW 1009 (JHR)

Hiraman Thakur v. State Of Jharkhand

2017-06-30

ANANDA SEN

body2017
JUDGMENT Ananda Sen, J. (C.A.V.) - The appellant has been convicted for committing offence under Section 304B of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 (seven) years vide judgment dated 18.01.2003 and order of sentence dated 20.01.2003. Aggrieved by the said judgment passed in Sessions Trial No.66 of 1995, arising out of Itkhori P.S. Case No.42 of 1991, the appellant has preferred this criminal appeal. 2. The prosecution is based on the fardbayan of P.W.3, the informant, who is the elder brother of the deceased. He has stated in his fardbayan that on 12.05.1991 at night, he received information that his sister (deceased) fell ill. When they went to her in-laws'' house, she was found dead. He further mentions that earlier they were informed that they should deliver the promised goods, then only her sister would be allowed to reside in her in-laws'' house. Based on this fardbayan, F.I.R. being Itkhori P.S. Case No.42 of 1991 was registered under Sections 304(B) and 201 of the Indian Penal Code. 3. The police investigated the case and filed chargesheet under Sections 304B and 201 of the Indian Penal Code against the appellant. After taking cognizance, the case was committed to the Court of Sessions. The appellant pleaded not guilty to the charge under Section 304B IPC and claimed to be tried. 4. Altogether five witnesses were examined by the prosecution, namely, P.W.1 Bishuni Devi, P.W.2 Budhni Devi, P.W. 3 Naresh Thakur, who is elder brother and informant of this case, P.W.4 Ramjee Thakur, who is father of the deceased, and P.W.5 Basanti, the mother of the deceased. The appellant did not examine any witness in defence. 5. Learned Trial Court, after hearing the arguments and after going through the records, convicted the appellant by judgment dated 18.01.2003 under Section 304B of the Indian Penal Code and by order dated 20.01.2003 sentenced him to undergo rigorous imprisonment for 7 (seven) years. Aggrieved by the said judgment and order passed in Sessions Trial No.66 of 1995, arising out of Itkhori P.S. Case No.42 of 1991, the appellant has preferred this criminal appeal. 6. I have heard learned senior counsel appearing for the appellant and learned Additional Public Prosecutor for the State. I have also gone through the Lower Court Records and scanned the evidence. 7. 6. I have heard learned senior counsel appearing for the appellant and learned Additional Public Prosecutor for the State. I have also gone through the Lower Court Records and scanned the evidence. 7. Learned senior counsel, appearing on behalf of the appellant, submits that the learned Trial Court has failed to appreciate the evidence in proper perspective and has, thus, erred in convicting the appellant and sentencing him for the offence alleged; the prosecution has miserably failed to bring home the charges against the appellant; the basic ingredients for making out the offence alleged are completely missing and are unsupported by the prosecution witnesses. 8. Learned A.P.P. submits that the impugned judgment and order of sentence have been passed by the learned Court below after weighing the evidence adduced by the prosecution witnesses and the materials available on record and the prosecution has been able to prove the charges against the appellant in a very specific manner. It is submitted that since the charges are proved, this appeal is liable to be dismissed. 9. Proceeding to the analysis of evidence, it is seen from the records that P.W.1 and 2 are tendered witnesses. P.W.3 is the informant, who deposed that the marriage of her sister took place with the appellant in the year 1990 and the occurrence took place in the month of 1991. He received information from some person, who came to inform them that the deceased was suffering from diarrhea. On receipt of such information, her father accompanied those persons and went to the house of the in-laws of his daughter. On reaching there, he found that his daughter is dead. He further stated that 12 days before death, appellant had written a letter informing that he is not interested in keeping the deceased with him and demanded Rs.6000/- which he spent in the treatment of the deceased. It has been further deposed that this appellant had written that one buffalo should be given to him as promised. In his cross examination, he stated that the deceased was subjected to cruelty and torture at the hands of this appellant and she was often beaten. He states that he went to in-laws'' house of her sister, but, before he could reach, the body was cremated. P.W.4 is the father of the deceased. In his cross examination, he stated that the deceased was subjected to cruelty and torture at the hands of this appellant and she was often beaten. He states that he went to in-laws'' house of her sister, but, before he could reach, the body was cremated. P.W.4 is the father of the deceased. He narrated that he was taken to the house of his daughter where he found his daughter to be dead. He states that the body of his daughter was cremated and thereafter he became unconscious. This witness was declared hostile at this point, but he stated in his cross examination that he was interrogated by the police. P.W.5 is the mother of the deceased and supported the prosecution case in respect of demand of dowry and the fact of marriage and torture. She stated that a demand of buffalo was being made and her daughter was tortured often. She deposed that they were not in a position to give a buffalo and assured the appellant that once they settle down, they will give a buffalo to him. She also stated that this appellant had an intention to drive out the deceased as the dowry was not given. 10. After analyzing the evidence, I find that this is a case under Section 304B of the Indian Penal Code. To bring home the charge of Section 304B IPC, the prosecution must prove three essentials as mentioned below: - (i) the cause of the death was by burnt or bodily injury or has occurred otherwise than under normal circumstances; (ii) such death occurred within 7 years of her marriage; (iii) must be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry. 11. From the analysis of evidence in this case, I find that the death definitely occurred within 7 years of marriage and further the death was an unnatural one. It is true that there is no postmortem report, but, the same could not have been there as it is the case of the prosecution that the body was cremated before lodging of F.I.R. Further it is not the case of the defence that the death is natural. This is a circumstance, which definitely goes against the accused. 12. It is true that there is no postmortem report, but, the same could not have been there as it is the case of the prosecution that the body was cremated before lodging of F.I.R. Further it is not the case of the defence that the death is natural. This is a circumstance, which definitely goes against the accused. 12. So far as the demand of dowry is concerned, there is consistent evidence that the appellant used to say that the family of the deceased should fulfil their promise by giving the buffalo. This is the only evidence in relation to the demand. There is nothing on record that this demand was in relation to or in connection with the marriage of this appellant. Thus, it cannot be said to be for or in connection with demand of dowry. So, in this case the third essential ingredient of Section 304B is missing. 13. Since one of the ingredients of Section 304B of the Indian Penal Code is missing in this case, this case cannot come within the purview of Section 304B of the Indian Penal Code. Thus, the impugned judgment is liable to be set aside and the appellant has to be acquitted from the charges. This appeal thus, is allowed. The impugned judgment of the Trial Court is set aside. Appellant is discharged of the bail bonds.