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2023 DIGILAW 351 (JHR)

Pramod Sao v. State of Jharkhand

2023-03-20

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant appeal has been preferred by the appellants against the judgment of conviction dated 04.09.2003 and the order of sentence dated 05.09.2003, passed by the learned Sessions Judge, Simdega, in S.T. No. 126 of 2001, arising out of G.R. No. 158 of 2001, whereby the appellants were convicted and sentenced to undergo rigorous imprisonment for 7 years each under Section 304 (B) of the Indian Penal Code. 3. The prosecution story in a nutshell is that on April 26, 2001, the informant's sister Geeta Devi (now deceased) was married to accused Pramad Sao, and all necessary gifts except palang were given in the marriage and she was harassed because of that. When she returned to naihar she narrated about the cruelty and harassment meted out to her by her husband and her in-laws to her mother. The informant came to know about the cruelty meted out to his sister after her death from his mother. Accordingly, informant submitted written report at Kolebira Police station. On the basis of said written report FIR was drawn up against the accused persons. 4. Learned counsel for the appellants submits that the instant case is not a case of bride burning; rather it is only a chance that the deceased died of burning due to fire caused by the Dhibri. Learned trial court has acquitted the father-in-law of the deceased on the same set of evidence. There is no deposition of the effect that just before her death victim has suffered cruelty or harassment by any of the in-laws. Though the allegation made by the mother of victim is omnibus in nature, that there was demand of dowry, however, father and brother of the victim did not support the aforesaid version and in the case of dowry death there has to be a demand of dowry just before the death. As per the evidence/deposition by the prosecution witnesses especially the mother of the deceased that there was a demand of wooden cot (Palang) but it is not proved that there was a record of demand for the same. As per the evidence/deposition by the prosecution witnesses especially the mother of the deceased that there was a demand of wooden cot (Palang) but it is not proved that there was a record of demand for the same. Last but not the least, there is also no allegation with respect to dowry even prior to the marriage as it appears from the FIR that no demand was made in consideration of the marriage and all items which were given to the appellant No.1 was on free will and with consent, as such since there was no independent witness to the occurrence it would not be safe to convict a person for dowry death. The learned trial court has though referred the fact of UD case which was lodged by brother-in-law (Devar) of the deceased, however, no cognizance was taken on that UD case and the trial court has not given any finding. 5. Learned APP supported the judgment of the learned trial court and submits that there was a demand of wooden cot though she was unable to say any particular date or event or such demand was made just before the date of occurrence. She fairly submits that the demand of wooden cot was in general, in view of the deposition of the mother of the victim that the victim came to her maternal place (maike) and told that the family members of her husband are demanding palang. However, there is no statement of any of the prosecution witness that if the wooden cot will not be given to them she will face dire consequences. However, there is an allegation that due to wooden cot there was harassment of the victim. 6. Having heard learned counsel for the parties and after going through the judgment passed by the learned trial court and lower court records it appears that so far as the death of the victim is concerned, it happened just after 53 days of marriage. From the deposition of the entire prosecution witness it does not transpire that there was any demand of dowry just before the death of the victim, however, it is proved that wooden cot was demanded. It further transpires that the time of occurrence was somewhere in the evening, inasmuch as, the FIR suggests that the burn was caused due to dhibri. It further transpires that the time of occurrence was somewhere in the evening, inasmuch as, the FIR suggests that the burn was caused due to dhibri. It further transpires that the P.W. 2 who is father of the victim has deposed that at the place of occurrence one dhibri was lying there on the floor. Here it is relevant to observe that lighting of dhibri is not safe due to its design. At this stage, it is also relevant to mention here that though the brother-in-law (Devar) of the victim has informed to the police as a precautionary measure by lodging a UD case but the prosecution has not proceeded in the said case and they have not given any logical conclusion to the UD case. It further transpires that even the trial court has though referred to the UD case but did not give any finding. Further, it is also relevant to refer that in the village normally dhibri/ lantern/ candle are used at the night time and certainly as aforesaid, they are not very safe. It further transpires from record that only after 53 days of marriage the occurrence took place. Had there been demand of dowry to the extent that torture will lead to the bodily injury or death, demand of wooden cot does not appear to be of such a grave intent that a person either will be driven to commit suicide or will be burnt only due to non fulfilment of demand of wooden cot. At this stage it is also relevant to refer the fact that the husband of the victim was agent of Sahara India and as per the defence version he was not at the place of occurrence. However, the learned trial court has not given any finding on the alibi of this appellant. Admittedly, there was an incident that too within two months of the marriage but since the prosecution witnesses have failed to prove that there was a demand of wooden cot soon before the death of the victim and she was subjected to cruelty or harassment by the husband or any relative in connection with the said demand, as such, all the ingredients of 304 B of the IPC is not fulfilled in the instant case and as a result, the appellant is liable to be given benefit of doubt in absence of corroborating evidence. 7. 7. It goes without saying that actual time of occurrence is not reflected anywhere: neither in the FIR nor in the deposition, however, from the postmortem report which was conducted and signed at around 4.30 P.M indicates that the death has occurred within 24 hours, as such it is inferred that the allegation of dhibri is correct but it would be very difficult to infer that only for the demand of palang/ cot a person can be killed. Further, the independent witnesses who were neighbours to the in-laws place have been declared hostile because they have not supported the prosecution case. Reference in this regard may be given to para 2 of P.W. 9 who has been declared hostile has said that the behavior of the in-laws were nice with the victim girl. 8. Lastly, it is necessary to observe that 1st Investigating Officer has not been examined in this case who conducted the main examination. Further, in the FIR there is no allegation that the victim girl was harassed for the demand of dowry. Even from the postmortem report no external injury of assault or any sign of struggle was found by the doctor. Further, no article has been seized from the place of occurrence. In the case of Ravishwar Manjhi and others versus State of Jharkhand reported in (2008) 16 Supreme Court Cases 561 the Hon’ble Apex Court has held at para 27 as under: “27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution as necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor.” 9. At the cost of repetition, the statement of co-villagers i.e. P.Ws. 6, 9 & 10 were not believed by the learned court making the order perverse. It appears that the learned trial court has misdirected itself only by going through the time and manner of death that the death occurred within two months of marriage; however, he has not appreciated that there can be an accident due to dhibri. 6, 9 & 10 were not believed by the learned court making the order perverse. It appears that the learned trial court has misdirected itself only by going through the time and manner of death that the death occurred within two months of marriage; however, he has not appreciated that there can be an accident due to dhibri. When the 1st I.O. who has conducted entire investigation has not been examined, it would be very difficult to come to the conclusion that whether the said lamp/dhibri was with glass or without glass. As such, I find that prosecution has not been able to prove its case and the appellant deserves benefit of doubt. 10. With the aforesaid observations and discussions, the instant criminal appeal stands allowed and the judgment of conviction dated 04.09.2003 and the order of sentence dated 05.09.2003, passed by the learned Sessions Judge, Simdega, in S.T. No. 126 of 2001, arising out of G.R. No. 158 of 2001, is hereby quashed and set aside. 11. The appellants shall be discharged from the liability of their bail bonds. 12. Let the copy of this order and the lower court record be sent to the court concerned forthwith.