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2023 DIGILAW 703 (JHR)

Rejesh Lal Paswan v. State of Jharkhand

2023-05-16

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 12.05.2003 & 13.05.2005, respectively, passed by the learned XI Judicial Commissioner, Ranchi in Sessions Trial Case No. 270/2001; whereby the appellant was convicted under sections 498A and 304B IPC and sentenced to undergo rigorous imprisonment for seven years for the offence u/s 304B IPC and for two years u/s 498A IPC and both sentences were ordered to run concurrently. 3. The prosecution story in brief as per the informant, who happens to be brother of the deceased, is that the sister of the informant married the appellant on 8th May, 1997. His brother-in-law used to assault her sister physically and often told her to bring money from her father. His sister was fed-up with the appellant-Rajesh Paswan. The father-in-law of deceased always tried to solve the dispute but his son did not obey the command of his father. On 20.08.2000 at about 6 p.m. father-in-law of deceased met with the informant and told him that Sarita committed suicide by burning. The informant went to the house of appellant and found his sister dead due to burn. He had suspicion that appellant has burnt his sister. 4. Mr. A.S.Dayal, Mr. Kumar Vaibhav, & Ms. Shivani Kapoor appearing for the appellant assail the impugned judgment on following grounds: (i) Learned trial court did not consider properly the materials and evidence on the record and has committed error in holding the appellant guilty for offence under section 304B and 498A IPC. (ii) Learned trial court also improperly framed charges under section 304B and 498A of IPC when the investigating officer after thorough investigation has submitted the charge sheet under section 306 IPC and for that cognizance was also taken. (iii) From examination of witnesses from prosecution it is apparent that P.W.s 1 to 5 are all related and highly interested witnesses of the case. (iv) The prosecution witnesses have shown their suspicion that petitioner has burnt; but have not given any specific evidence to show the complicity of appellant. Even in F.I.R. informant has stated about suspicion. (v) The appellant did not deserve to be convicted only on grounds of suspicion. (vi) The doctor has not mentioned the percentage and degree of burn nor has said about any smell about the source which was used for burning. Even in F.I.R. informant has stated about suspicion. (v) The appellant did not deserve to be convicted only on grounds of suspicion. (vi) The doctor has not mentioned the percentage and degree of burn nor has said about any smell about the source which was used for burning. (vii) Total eight witnesses were examined by defense and from their deposition it is clear that the door was broken thus there is no doubt that the deceased committed suicide. (vii) The deceased was having an illicit relation with one local boy and was also caught red handed by them in a room. This fact also supports the postulation that the deceased committed suicide. (viii) There is no cogent evidence brought by prosecution to establish allegation of demand of dowry/money and torture and that too immediately before the occurrence. (ix) Non-examination of I.O. has caused great prejudice to appellant. Relying upon the aforesaid contention learned counsel for the appellant and also both the Amicus contended that the impugned judgment requires interference. xxxxx 6. Learned Addl. P.P. submits that no error has been committed by the learned trial court and the deposition of prosecution witnesses fully supports the prosecution case, as such no interference is required. However, he fairly admits that as per the available record there is no criminal antecedent of the appellant. 7. Having heard learned counsel for the parties and after going through the LCR it appears that the FIR in the instant case was lodged on 20.08.2000 u/s 304B IPC against the Appellant. The Police, after investigation, filed charge-sheet on 17.11.2000 u/s 306 IPC; however, the learned court below framed charges u/s 304B and 498A IPC on 09.07.2001 and the Appellant stood trial for the said offences. The Appellant in his statement u/s 313 Cr.P.C. recorded on 07.08.2002 offered a detailed explanation of all the circumstances leading to suicide by his wife and the Appellant in his defense adduced oral evidence of eight defense witnesses. It is pertinent to mention here that the marriage of the deceased with the appellant was solemnized on 8th May 1997 and they have a son who was 2 years old in 2000 (the date of incident being 20.8.2000). It is pertinent to mention here that the marriage of the deceased with the appellant was solemnized on 8th May 1997 and they have a son who was 2 years old in 2000 (the date of incident being 20.8.2000). In order to hold the Appellant guilty for offences u/s 498A and 304B, the prosecution ought to establish by leading evidence that the deceased was subjected to cruelty by the Appellant for/ in connection with demand for dowry soon before her death. Thus, the core issues that falls for consideration by this Court are as follows : a. Whether the prosecution has proved beyond all reasonable doubt that the death of the deceased is a dowry death which had taken place within 7 years of marriage? b. Whether the prosecution has clearly established that the deceased was subjected to cruelty by her husband- appellant with a view to coheres her meeting a demand for dowry and that caused mental cruelty to her? c. Whether the prosecution has proved beyond all reasonable doubt that “soon before her death” the deceased was subjected to cruelty by her husband in any connection with any demand for dowry or cruelty? 8. It emerges from record that the P.W.1, P.W.2, P.W.4 and P.W.5 are all interested and related witnesses who have deposed in a tutored manner about the demand of dowry by the appellant; none of whose depositions are corroborated by any independent witness or by any other circumstance. The evidence of such related witnesses does not prove the case of the prosecution beyond reasonable doubt. In this regard, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Yogesh Singh v. Mahabeer Singh & ors. reported in [ (2017) 11 SCC 195 , paragraph 28], wherein it has been held- “A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case…….” Moreover, none of the above-mentioned witnesses have given any exact detail of any incident of cruelty/demand for dowry and the statements are vague and ambivalent being general testimonies not supported by any other documentary evidence; that doesn’t establish their contention. In fact, there is no prosecution evidence showing the demand for dowry as there is no mention about any previous complaint made to that effect or any medical treatment undertaken by the deceased. At this stage, it is also important to refer the deposition of P.W.8- Manju Devi, who in her cross-examination has specifically stated that the appellant and the deceased used to live properly. Further, as per the prosecution evidence, neither any legal action was taken nor any panchayati was held regarding the demand of dowry and/or harassment of the deceased by the appellant. Further, none of the defense witnesses, who are mostly neighbors, deposed anything about any incident of such cruelty for demand of dowry meted out by the appellant to his deceased wife. The statements of the prosecution witnesses are thus appearing to be concocted and not sufficient to establish that the deceased was subjected to cruelty and/or harassment for dowry by the appellant and thus the basic postulants to fix liability are not satisfied. Thus, the entire evidence of the prosecution qua the demand of dowry is rendered improbable. Hence, convicting the appellant under Section 498A IPC appears to be erroneous and the benefit of doubt may be extended to the appellant. 9. So far as the conviction for charge under Section 304B IPC is concerned; as discussed in the preceding paragraph that none of the PWs have given any exact detail of any incident of cruelty/demand for dowry and the statements are imprecise and vague being general testimonies not supported by any other documentary evidence and also the fact that P.W.8- Manju Devi, in her cross-examination has precisely stated that the appellant and the deceased used to live properly; the prosecution has been unable to prove all the ingredients of section 304B IPC and thus the presumption under section 113B of the Indian Evidence Act, 1872 will not be attracted against the appellant. It is well settled principle of law as also discussed in the case State of Madhya Pradesh and Jogendra & Anr., reported in (2022) 5 SCC 401 , that there must be a clear nexus between demand of dowry, cruelty or harassment, based upon such demand and date of death. The test of proximity has to be applied based on the facts and circumstances of each case to take a pragmatic and sensitive view within the confines of law. 10. The test of proximity has to be applied based on the facts and circumstances of each case to take a pragmatic and sensitive view within the confines of law. 10. In the instant case, the prosecution has miserably failed to establish that the deceased was subjected to cruelty/ harassment by the Appellant for/ in connection with demand for dowry soon before her death. It transpires from LCR that the Appellant in his statement u/s 313 Cr.P.C. offered a probable explanation to the incident that the deceased committed suicide after she was caught red-handed by the Appellant with another man named Khatru. In fact, D.W. 4 (Mahendra Ram, neighbor) and D.W.5 (Kanti Devi, neighbour) has also clearly deposed about the affair of the deceased with the said person and that the deceased was caught with him on the day of the occurrence also; thus, corroborating with the statement made by the appellant under Sec 313 Cr.P.C. Moreover, it is not disputed by the prosecution that the door was locked from inside and it was broken by some local boys when they saw smoke coming out from the room. On breaking the door, they found the deceased in a burnt state, though it was found that the room was in order and no objects were disturbed and the room was found burnt only at one place. It is also not denied that the appellant was not at home and came with his son only to find the dead body of the deceased. 11. In view of the admitted scenario, it can be safely held that the prosecution has failed to prove beyond reasonable doubt that “soon before her death” the deceased was subjected to cruelty by her husband in any connection with any demand for dowry or cruelty and thus the essential ingredients under Sec 304 B IPC read with Sec 113B of the Indian Evidence Act are clearly not established. The learned trial court simply brushed aside the defense of the Appellant on a mere presumption that having not attacked Khatru after finding him with the deceased, the conduct of the Appellant is unnatural and hence cannot be believed. Moreover, the learned trial Court denied the depositions of the defense witnesses and the defense story on absolutely erroneous grounds based on mere assumptions which do not find support in any of the evidences produced by the prosecution. Moreover, the learned trial Court denied the depositions of the defense witnesses and the defense story on absolutely erroneous grounds based on mere assumptions which do not find support in any of the evidences produced by the prosecution. Thus, the learned trial court failed to consider the statement of the Appellant u/s 313 Cr. P.C in the entire conspectus of the prosecution evidence and thus failed to take into consideration the explanation of the incriminating circumstances offered by the Appellant, and hence the same would vitiate the conviction of the Appellant. Reliance in this regard may be made to the judgment of the Hon’ble Apex Court in the case of Premchand v. State of Maharashtra [Criminal Appeal No. 211/2023, judgment dt. 03.03.2023] wherein the Hon’ble Court has summarized the settled legal principles as regards section 313 Cr.P.C. The relevant extracts from the said judgment are as under: “15. What follows from these authorities may briefly be summarized thus: a. section 313, Cr. 03.03.2023] wherein the Hon’ble Court has summarized the settled legal principles as regards section 313 Cr.P.C. The relevant extracts from the said judgment are as under: “15. What follows from these authorities may briefly be summarized thus: a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence; b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him; c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court; d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences; e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him; f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s); g. statements of the accused in course of examination undersection 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case; h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction. 16. 16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.” 12. At the cost of repetition, in the case at hand, it clearly transpires that there are several deficiencies in the prosecution case i.e., non-examination of the investigating officer, no scientific examination of the place of occurrence, etc. as such; benefit of which ought to inure to the Appellant. Moreover, the learned trial court in the impugned judgment has accepted the defense of the Appellant, inter alia recording at paragraph-9 “Considering the defense evidence and case of prosecution, it is found that Sarita Devi committed suicide by setting fire on her....” Even then the Learned Trial Court has convicted the appellant u/s 304B and Sec 498A IPC without satisfying any of the ingredients of both the sections as mandated by law. It has been laid down in a catena of judgments including the case Umakant and Another vs. State of Chattisgarh, reported in (2014) 7 SCC 4053 wherein the Hon'ble Apex Court has laid down the law in para 27 which reads as under- "27. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.” 13. It further appears that the impugned judgment is completely non-observant to the mandate of section 354 of the Cr.P.C. The learned trial court has not at all recorded its findings based on evidence, rather has recorded conclusions based on conjectures, surmises and presumptions. In this regard, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Mukhtiar Singh & Anr. v. State of Punjab reported in [ (1995) 1 SCC 760 ] wherein the Hon’ble Supreme Court has held as under:- “10............... The trial Court appears to have been blissfully ignorant of the requirements of Section 354(i)(b) Cr.P.C. Since, the first appeal lay to this Court, the trial Court should have reproduced and discussed at least the essential parts of the evidence of the witnesses besides recording the submissions made at the bar to enable the appellate Court to know the basis on which the 'decision' is based. A 'decision' does not merely mean the "conclusion" – it embraces/ within its fold the reasons which form the basis for arriving at the "conclusions". The judgment of the trial Court contains only the "conclusions" and nothing more.” 14. Having regard to the aforesaid discussions the impugned judgment warrants interference by this Court as the appellant is entitled for benefit of doubt. Reliance is placed on the judgment of the Hon’ble Apex Court in the case of State of Haryana vs. Angoori Devi & Another, reported in (2020) 18 SCC 773 , the operative portion of which is quoted hereunder- “15. Considering the evidence, the Court did not find the evidence strong enough to hold the respondents guilty. We agree with the High Court that the evidence is weak, and not sufficient for conviction. 16. It is true that the victim died of burns. The death was otherwise than under normal circumstances and within 7 years of marriage. However, to attract Section 304B of the Indian Penal Code, the prosecution has to establish that soon before the death the deceased was subjected to cruelty and harassment in connection with demand for dowry. The High Court rightly found that the evidence did not show any proximate connection between the demand of dowry and the act of cruelty of harassment and or the death. The High Court rightly found that the evidence did not show any proximate connection between the demand of dowry and the act of cruelty of harassment and or the death. The prosecution has not been able to prove that the victim was subjected to cruelty or harassment soon before her death in connection with any demand for dowry. 17. Under Section 304B of the Indian Penal Code, the prosecution cannot escape from discharging its burden of proving that the harassment or cruelty was related to demand for dowry soon before death. In this case, the High Court has been swayed by the fact that the evidence of the complainant, being the father of the victim, did not evince direct knowledge of demand of dowry. The judgment and order under appeal is not liable to be interfered with.” Before concluding, it is relevant to mention that for convicting any person for the charge under section 304 B IPC though the presumption lies on the accused but the prosecution will have to show that all the three ingredients are present in the commission of trial. In the instant case there is no nexus between death and the cruelty. This Court cannot ignore the deposition of the doctor being P.W.9 who has categorically stated that he did not find any mechanical injury on the deceased and for this reason also non-examination of I.O. has affected this case as he was the person who could have thrown light in the background of defense version. 15. Consequently, the instant appeal is allowed and the impugned judgment of conviction and order of sentence dated 12.05.2003 and 13.05.2003, respectively is quashed and set aside. 16. Let a copy of this order be communicated to the court below as well as Secretary, Jharkhand High Court Legal Services Committed for quantifying the fee learned Amici. 17. Let the lower court record be sent to the court concerned forthwith.