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2023 DIGILAW 580 (JHR)

Bhuneshwar Mahto v. State of Jharkhand

2023-04-26

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 12.06.2003 and 13.06.2003, respectively, passed by learned 9th Additional Sessions Judge, Hazaribag corresponding to S.T. No. 257 of 97, whereby the appellant was convicted for the offence under Section 304 B of the IPC and sentenced to undergo R.I. for a period of Eight years. 3. The prosecution case in short is that the marriage of Padma Devi, niece of the informant was solemnized, with Taleshwar Mahto and at the time of marriage Rs. 30,000/- with household articles were given. After the marriage, the appellant (Fufa Sasur) harassed the victim with a direction to bring Rs. 20,000/- as balance of dowry otherwise he would murder her. The victim whenever came to the parental house has complained about the harassment made with her in her sasural. This affair continued after marriage and on 14.11.1996 all the accused persons administered poison with the intention to kill her. Thereafter, she was taken to the RMCH for treatment where she died on the same day. 4. Mr. Niraj Kishore, learned counsel appearing for the appellant made the following submissions: (i) For the same set of evidences, the other accused persons have been acquitted including the husband but the appellant being uncle (Fufa Sasur) has been convicted for the offence under Section 304(B) IPC. (ii) No specific date or month has been given so far as demand of dowry is concerned and the learned trial court has given finding that it appears that it was a continued offence. This finding of the learned trial court is perverse in nature, inasmuch as, proximity of demand soon before the death is a sine qua non and if it has not been proved by the prosecution then the benefit of doubt should be given to the appellant. Further, no information with respect to harassment of the victim by the appellant has been ever given to the neighbors and/or to the police. (iii) Even otherwise, the appellant being uncle (Fufa Sasur) cannot be involved in the demand of dowry. Further, no information with respect to harassment of the victim by the appellant has been ever given to the neighbors and/or to the police. (iii) Even otherwise, the appellant being uncle (Fufa Sasur) cannot be involved in the demand of dowry. (iv) The cause of death has been shown to be due to Aluminium Phosphate and the learned trial court himself has admitted that the same is used in agriculture; as such there can be a possibility that the victim might have touched part of Aluminium Phosphate and thereafter consumed the food. (v) Even otherwise, PW-1, who is uncle of the victim, has admitted in his cross-examination that the victim was suffering from epilepsy. Relying upon the aforesaid submission he submits that the impugned judgment be set aside. 5. Learned APP has supported the judgment and submits that there is no error or perversity in the impugned judgment. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR and looking to the comprehensive facts and circumstances of the case, it appears that no specific date or month has been stated by either of the PWs in their deposition. The evidence of PW-1 and PW-2 was not on the point of death or demand of dowry. PW-3 in his examination deposed that “daughter died in RMCH, Ranchi, Dr. Upendra Thakur has stated in his presence at Gola that she was administered poison” however during cross examination he deposed that “I did not go to doctor” and admitted that he gave hearsay evidence and he got information of demand of dowry from father of victim. Further PW-5 deposed that the daughter narrated the occurrence of torture to him and family members however he could not remember the month or year of assault. From perusal of the deposition of PWs it clearly transpires that no specific date or month has been brought on record regarding torture in relation to demand of dowry by the appellant. Hon'ble Apex Court in the case of Baijnath vs. State of Madhya Pradesh, (2017) 1 SCC 101 has laid down the essential ingredients of dowry death: “25. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are: (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances. Whereas in the offence of dowry death defined by Section 304-B of the Code, the ingredients thereof are: (i) death of the woman concerned is by any burns or bodily injury or by any cause other than in normal circumstances. (ii) is within seven years of her marriage. (iii) that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry.” 7. From the postmortem report it transpires that there was no evidence of any mechanical injury either external or internal. This shows that death of deceased by bodily injury and burn has not been found, however it is found that the internal organs of the victim was congested, this may fall in expression “death other than normal circumstance.” From the facts it is also clear that the death occurred within seven years of marriage. However, regarding proximity of time, prosecution has miserably failed to prove that the victim was subjected to cruelty in connection with demand of dowry soon before her death. 8. Hon'ble Apex Court in case of Rajeev Kumar vs. State of Haryana, (2013) 16 SCC 640 has categorically held that one of the essential ingredient of dowry death under section 304-B is that the accused must have subjected the women to cruelty in connection with the demand of dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death under section 304-B of the Act. The relevant paragraph is quoted herein-below: “18........One of the essential ingredients of the offence of dowry death under Section 304-B IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death under Section 113-B of the Evidence Act. As this ingredient of Section 304-B IPC has not been established by the prosecution, the trial court and the High Court were not correct in holding the appellant guilty of the offence of dowry death under Section 304-B IPC.” Tested on the judicially adumbrated parameters as above, I am of the firm opinion that the prosecution has failed to prove beyond reasonable doubt the cruelty or harassment to the deceased for or in connection with any demand for dowry as contemplated in either of the provision of the Code under which the appellant had been charged. Noticeably, the alleged demand centres around a demand of Rs. 20,000/- which as the evidence of the prosecution witnesses could not remember the date or month. Noticeably again, the demand and torture meted out to victim, as sought to be projected by the prosecution, if accepted to be true had lingered for months. Yet admittedly, no complaint was made thereof to anyone, far less the police. Apart from the general allegations in the same tone ingeminated with parrot-like similarity by the prosecution witnesses, the allegation of cruelty and harassment to the deceased is founded on the confidential communications by her to her parents and family members and is not supported by any other quarter. A cumulative consideration of the overall evidence on the facet of dowry, leaves me unconvinced about the truthfulness of the charge qua the appellant. The prosecution in my estimate, has failed to prove this indispensable component of the offence beyond reasonable doubt. The factum of unnatural death in the matrimonial home and that too within seven years of marriage therefore is thus ipso facto not sufficient to bring home the charge under Sections 304-B of the Code against him. Last but not the least, the learned trial court should have appreciated that the cause of death has been shown to be due to Aluminium Phosphate and the learned trial court himself has admitted that the same is used in agriculture; as such there can be a possibility that the victim might have touched part of Aluminium Phosphate and thereafter consumed the food. 9. Having regard to the discussions made herein above, the judgment of conviction dated 12.06.2003 and order of sentence dated 13.06.2003 passed by learned 9th Additional Sessions Judge, Hazaribag corresponding to S.T. No. 257 of 97, is hereby, quashed and set aside. 10. 9. Having regard to the discussions made herein above, the judgment of conviction dated 12.06.2003 and order of sentence dated 13.06.2003 passed by learned 9th Additional Sessions Judge, Hazaribag corresponding to S.T. No. 257 of 97, is hereby, quashed and set aside. 10. The appellant is discharged from the liability of their bail bonds. 11. Accordingly, the instant criminal appeal, is hereby, allowed. Pending I.A. if any, is also closed. 12. Let a copy of this order be communicated to the court below and the lower court record be sent to the court concerned forthwith.