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2021 DIGILAW 323 (JHR)

Pradeep Sahu S/o Rajni Sahu v. State of Jharkhand

2021-03-22

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. On 04.02.2012, Usha Sahu was found dead in her matrimonial house. On information her father and two brothers-in-law have gone to her house at Jhargaon and found her dead-body in the courtyard. In his fardbeyan which was recorded at 11:30 A.M. on 04.02.2012, Moti Lal Behra who is father of the victim has stated that his son-in-law Pradeep Sahu and his brother Yogeshwar Sahu have strangulated his daughter to death because he could not fulfill their demands of dowry. On the basis of the fardbeyan of Moti Lal Behra, Sonua P.S. Case No. 04 of 2012 was lodged under section 304-B/34 of the Indian Penal Code against Pradeep Sahu and Yogeshwar Sahu and after the investigation a charge-sheet was laid against them for committing dowry death of Usha Sahu. In course of investigation co-villagers of the informant, namely, Panu Sahu, Devdas Sahu and Tapan Kumar Sahu stated before the police that the accused were causing harassment and torture to Usha Sahu in various ways to compel her parents to fulfill their demands of dowry. They also stated before the police that Rs. 20,000/- was paid by father of the victim to Pradeep Sahu, her husband. Janamjay Sahu and Raibu Padihari are brothers-in-law of Usha Sahu. They have also stated before the police about harassment and torture of Usha Sahu at the hands of the accused. They father stated that they had gone to matrimonial house of the victim at Jhargaon and paid Rs. 20,000/- to her husband. Dr. Santosh Kumar Srivastava who conducted the postmortem examination at 03:30 PM on 04.02.2012 has found bruises over neck and left shoulder of Usha Sahu. The injuries were antemortem in nature and caused between 6 to 36 hours from the postmortem examination. In the opinion of the doctor the cause of death was asphyxia due to throttling. 2. In the trial the prosecution has examined eight witnesses out of whom PW-5 Janamjay Sahu and PW-8 Raibu Padihari were closely related to Usha Sahu. PW-1, PW-2 and PW-4 who are co-villagers of the informant did not support the prosecution and they were declared hostile. PW-3 Ratnakar Sahu is a hearsay witness and PW-7 is the Investigating Officer. 3. 2. In the trial the prosecution has examined eight witnesses out of whom PW-5 Janamjay Sahu and PW-8 Raibu Padihari were closely related to Usha Sahu. PW-1, PW-2 and PW-4 who are co-villagers of the informant did not support the prosecution and they were declared hostile. PW-3 Ratnakar Sahu is a hearsay witness and PW-7 is the Investigating Officer. 3. The learned Additional Sessions Judge-III, West Singhbhum at Chaibasa has held that the prosecution has proved unnatural death of Usha Sahu within one year of her marriage in her matrimonial house for non-fulfillment of demands of dowry and, therefore, presumption under section 113-B of the Indian Evidence Act would operate against them and the accused would be presumed to have committed dowry death. 4. The learned trial Judge has held as under: “11.......Thus, the medical evidence makes it clear that the death is due to throttling. From the medical evidence, it is clear that it is a case of homicidal death since the homicidal death has taken place within the matrimonial house in which the accused were living along with the deceased. It is incumbent on the accused to explain about the death as well as the injuries. No attempt is made by the accused in that regard to give any explanation. As per section 106 of the Indian Evidence Act, it is obligatory on the part of the accused to explain how the deceased sustained injuries on her person. The silence of the accused on this aspect give rise to drawing adverse inference against them. Such adverse inference also forms a link in the chain of circumstances which points to his guilt. The evidence of PW-5 as well as PW-7 show that after the marriage while accused were tortured the deceased, the informant sold his land gave Rs. 20,000/- to the deceased husband through PW-5 and PW-8. After passing of sometimes accused persons again tortured the deceased for their demand. On which PW-5 and PW-8 went her in laws house and convinced the accused persons and returned on 6/7th January 2012 and 4th February 2012, they got information the murder of deceased was committed by the accused persons. 20,000/- to the deceased husband through PW-5 and PW-8. After passing of sometimes accused persons again tortured the deceased for their demand. On which PW-5 and PW-8 went her in laws house and convinced the accused persons and returned on 6/7th January 2012 and 4th February 2012, they got information the murder of deceased was committed by the accused persons. The appreciation of above evidence shows that the deceased was subjected to cruelty by her husband and his elder brother and cruelty was perpetrated on the deceased soon before the death in connection with demand for dowry, investigating officer PW-7 also found scratch on the neck of deceased and the evidence of doctor PW-6 shows that death caused by asphyxia due to throttling i.e. unnatural death. Thus, from the discussion of above evidence, I find and hold that prosecution has able to prove that the unnatural death of Usha Sahu had occurred within 1 year her marriage in her in laws house by asphyxia due to throttling her neck by the accused persons for non-fulfillment of their dowry demand. Thus, the prosecution is able to prove the circumstances set out in Section 304-B I.P.C. then presumption u/s. Section 113-B of the Indian Evidence Act begins to operate the court has no option but to presume that the accused had caused dowry death unless the accused person dispute it in terms of Section 4 of the Evidence Act. The accused can discharge such burden either by eliciting answers through cross-examination of the prosecution witnesses or by adducing evidence on the defence side or by both. No evidence led by the defence and there is nothing in cross-examination of the prosecution witnesses on the basis of which defence could able to rebut the presumption laid down u/s. 113-B of the Indian Evidence Act.” 5. In Sessions Trial Case No. 132 of 2012, the appellants are convicted and sentenced to RI for life with a fine of Rs. 5,000/- each under section 304-B/34 of the Indian Penal Code. 6. Several arguments were raised by Mrs. Vani Kumari, the learned counsel for the appellants and finally she would contend that maximum sentence of RI for life under section 304-B of the Indian Penal Code cannot be inflicted upon the appellants and moreover there is no evidence on complicity of Yogeshwar Sahu or that he shared common intention to cause dowry death of Usha Sahu. Vani Kumari, the learned counsel for the appellants and finally she would contend that maximum sentence of RI for life under section 304-B of the Indian Penal Code cannot be inflicted upon the appellants and moreover there is no evidence on complicity of Yogeshwar Sahu or that he shared common intention to cause dowry death of Usha Sahu. 7. Besides special nature of the offence of dowry death created under section 304-B of the Indian Penal Code, we need to take special care in this case because there is no direct evidence available on record. By Amendment Act 43 of 1986 a new offence under section 304-B was inserted in the Indian Penal Code and at the same time a corresponding amendment was made in the Indian Evidence Act to incorporate section 113-B. To constitute the offence under section 304-B of the Indian Penal Code the prosecution must establish the following facts: (i) death within 7 years of marriage; (ii) death of a woman otherwise than under normal circumstances and (iii) soon before her death the woman was subjected to cruelly or harassment by her husband or any relative of the husband for, or in connection with demand of dowry. 8. The case of the prosecution against the appellants is based on circumstantial evidence and therefore the prosecution must establish by leading cogent evidence that cumulative effect of all the circumstances taken together is that it was the accused and accused alone who has committed the crime. In Sukhram vs. State of Maharashtra, (2007) 7 SCC 502 the Hon'ble Supreme Court has held that the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. 9. In Sukhram vs. State of Maharashtra, (2007) 7 SCC 502 the Hon'ble Supreme Court has held that the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused. 9. In Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 the Hon'ble Supreme Court has observed as under: “9.......When a case tests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.....” 10. Mrs. Priya Shreshtha and Mrs. Niki Sinha the learned Spl. PP/APP have contended that the accused have maintained complete silence in their examination under section 313 of the Code of Criminal Procedure and therefore an adverse inference under section 106 of the Indian Evidence Act must be drawn against them. 11. In Shambu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404 the Hon'ble Supreme Court has held that section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. 12. Most of the prosecution witnesses have turned hostile but there is no explanation how Usha Sahu has suffered a homicidal death in her matrimonial house. The informant who is father of the victim died before the trial commenced. The cross-examination of PW-1, PW-2 and PW-4 by the prosecution would indicate that these witnesses had gone to Jhargaon with the informant and seen the dead-body of Usha Sahu in the courtyard. The informant who is father of the victim died before the trial commenced. The cross-examination of PW-1, PW-2 and PW-4 by the prosecution would indicate that these witnesses had gone to Jhargaon with the informant and seen the dead-body of Usha Sahu in the courtyard. PW-3 Ratnakar Sahu though a hearsay witness has affirmed in the Court that Usha Sahu has died in her matrimonial home and he has seen her dead-body lying on the ground in the courtyard. In his cross-examination this witness has admitted that he has no personal information how Usha Sahu has died but from his evidence which has remained not challenged by the defence this much is established that the other co-villagers had also gone to the house of the accused at Jhargaon. PW-5 and PW-8 both have stated in their examination-in-chief that the informant sold his land and gave Rs. 20,000/- to his son-in-law. Both these witnesses have stated that Rs. 20,000/- was given to Pradeep Sahu and except a general allegation contained in one sentence that Yogeshwar Sahu was also making demands of dowry there is no evidence against this accused. The Investigating Officer has stated in the Court that he arrested Pradeep Sahu and Yogeshwar Sahu on 04.02.2012 who were present at the place of occurrence. This evidence however would not indicate that Yogeshwar Sahu was living with his brother in the same house. There is no positive evidence laid by the prosecution that Yogeshwar Sahu was living together with Pradeep Sahu in the same house and on the date of occurrence he was present in the house or seen there. Moreover, we find that there is no evidence to establish a prima-facie case of dowry death against him to raise an adverse inference under section 106 of the Indian Evidence Act. 13. The explanation to section 113-B of the Indian Evidence Act provides that the expression “dowry death” shall have the same meaning as in section 304-B of Indian Penal Code. In Kunhiabdulla vs. State of Kerala, (2004) 4 SCC 13 the Hon'ble Supreme Court has observed that expression “soon before” would normally imply that interval should not be much between the concerned cruelty or harassment and the death. 14. In Baijnath vs. State of M.P. (2017) 1 SCC 101 the Hon'ble Supreme Court has observed as under: “29. In Kunhiabdulla vs. State of Kerala, (2004) 4 SCC 13 the Hon'ble Supreme Court has observed that expression “soon before” would normally imply that interval should not be much between the concerned cruelty or harassment and the death. 14. In Baijnath vs. State of M.P. (2017) 1 SCC 101 the Hon'ble Supreme Court has observed as under: “29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.” 15. Death of a young girl has occurred. She died a homicidal death is proved from the evidence of the doctor. PW-6 has found extravasations of blood on anterior part of neck beneath the bruise and there was hemorrhage of larynx. These features on the dead-body are characteristic of strangulation of Usha Sahu. PW-6 has also rendered a definite opinion that Usha Sahu has died due to asphyxia caused by throttling. PW-8 was won over by the defence is quite apparent. In his examination-in-chief, PW-8 has tendered evidence on harassment and torture of Usha Sahu - he himself appears to be a witness on this point. However, after his examination-in-chief his further examination was adjourned at the instance of the defence. PW-8 was cross-examined after five days and his statement in the cross-examination that whatever he has stated in the examination-in-chief is apparently contradictory to his previous statement. Nonetheless, we are inclined to accept his evidence on harassment and torture of Usha Sahu at the hands of her husband. There was a motive on the part of the husband to commit murder of his wife. The defence has not challenged that Usha Sahu has died in her matrimonial house within seven years of her marriage. There is no attempt by the husband to offer any explanation how his wife has died in his house. There was a motive on the part of the husband to commit murder of his wife. The defence has not challenged that Usha Sahu has died in her matrimonial house within seven years of her marriage. There is no attempt by the husband to offer any explanation how his wife has died in his house. The relationship between the husband and wife is so intimate that in all probability he must know how his wife has died, unless he has some plausible and acceptable explanation. 16. In Madhu vs. State of Karnataka, (2014) 12 SCC 419 the Hon'ble Supreme Court has observed thus: “25. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not the chain of circumstances is complete. [Vide: Musheer Khan vs. State of M.P. and Sunil Clifford Daniel].” 17. In Phula Singh vs. State of H.P. (2014) 4 SCC 9 the Hon'ble Supreme Court has observed thus: “11. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. [Vide: Ramnaresh vs. State of Chhattisgarh, Munish Mubar vs. State of Haryana and Raj Kumar Singh vs. State of Rajasthan].” 18. Having examined the records of the case in the background of the above legal position, we hold that the prosecution has failed to establish charge or dowry death against Yogeshwar Sahu who is the appellant in Cr. Appeal (DB) No. 1044 of 2016 and, accordingly, his conviction is set-aside. 19. Insofar as conviction of Pradeep Sahu who is the appellant in Cr. Appeal (DB) No. 1381 of 2016, is concerned, the same is hereby affirmed. 20. Mrs. Appeal (DB) No. 1044 of 2016 and, accordingly, his conviction is set-aside. 19. Insofar as conviction of Pradeep Sahu who is the appellant in Cr. Appeal (DB) No. 1381 of 2016, is concerned, the same is hereby affirmed. 20. Mrs. Vani Kumari, the learned counsel for the appellants has referred to the judgment in Hem Chand vs. State of Haryana, (1994) 6 SCC 727 to press hard upon us that the sentence of RI for life under section 304-B of the Indian Penal Code inflicted upon the husband is not proper. We find substance in this submission. 21. In Hem Chand the Hon'ble Supreme Court has held as under: “7. Now coming to the question of sentence, it can be seen that Section 304-B IPC lays down that: “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani PW-6 and Dr. Indu Lalit PW-7 gave one opinion. According to them no injury was found on the dead-body and, that the same was highly decomposed. On the other hand, Dr. Dalbir Singh PW-13 who also examined the dead-body and gave his opinion, deposed that he noticed some injuries at the time of re-post-mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B IPC would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 IPC have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” 22. The facts and circumstances which may not be relevant for the conviction can be considered on the question of sentence. Though we have upheld the conviction of Pradeep Sahu under section 304-B of Indian Penal Code, non-examination of family members of the informant and mistakes committed by the Investigating Officer during the investigation are such factors which persuade us to interfere with the order of sentence dated 29.08.2016 passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in Sessions Trial Case No. 132 of 2012. 23. Accordingly, while affirming the judgment of conviction under section 304-B/34 of the Indian Penal Code dated 26.08.2016 the order of sentence of RI for life and a fine of Rs. 5,000/- for the offence under section 304-B/34 of the Indian Penal Code dated 29.08.2016 against the appellant, namely, Pradeep Sahu in Cr. Appeal (DB) No. 1381 of 2016 is set-aside. 24. The appellant, namely, Pradeep Sahu in Cr. Appeal (DB) No. 1381 of 2016 is convicted and sentenced to RI for ten years with a fine of Rs. 5,000/- under section 304-B of the Indian Penal Code. 25. Mrs. Priya Shreshtha, the learned Spl. P.P. states that the appellant, namely, Pradeep Sahu who has served the sentence of ten years and six months, with remission, is in custody. 26. Accordingly, the appellant, namely, Pradeep Sahu in Cr. Appeal (DB) No. 1381 of 2016 shall be set free forthwith, if not wanted in connection to any other case. 27. Mrs. Priya Shreshtha, the learned Spl. P.P. states that the appellant, namely, Pradeep Sahu who has served the sentence of ten years and six months, with remission, is in custody. 26. Accordingly, the appellant, namely, Pradeep Sahu in Cr. Appeal (DB) No. 1381 of 2016 shall be set free forthwith, if not wanted in connection to any other case. 27. Mrs. Niki Sinha, the learned APP states that the appellant, namely, Yogeshwar Sahu in Cr. Appeal (DB) No. 1044 of 2016 was granted bail by a co-ordinate Bench of this Court vide order dated 16.05.2017. 28. Accordingly, the appellant, namely, Yogeshwar Sahu who is on bail shall be discharged of liability of the bail bonds furnished by him. 29. Cr. Appeal (DB) No. 1044 of 2016 is allowed. 30. Cr. Appeal. (DB) No. 1381 of 2016 is partly allowed in the aforesaid terms. 31. Let lower Court records be transmitted to the Court concerned forthwith. 32. Let a copy of the Judgment be transmitted to the Court concerned through FAX.