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2024 DIGILAW 398 (JHR)

Kapil Ravidas v. State of Jharkhand

2024-04-12

GAUTAM KUMAR CHOUDHARY

body2024
JUDGMENT : Gautam Kumar Choudhary, J. 1. Judgment of conviction under Section 304B of the Indian Penal Code and sentence of rigorous imprisonment for seven years with a fine of Rupees Five Thousand, is under challenge in the instant criminal appeal. 2. As per the FIR, sister of the informant was married on 21.05.2011 with Kapil Ravidas. At the time of marriage, Rs.1,51,000/-cash and valuables were given, but after marriage, Rs.40,000/-was demanded and due to non-fulfillment, her husband and in-laws started torturing her. On 21.08.2011 at 11.45 p.m. he received information on his mobile that his sister is admitted in Chauparan Government Hospital. When he was coming from Hazaribag to Chauparan, he again received call on his mobile to come to his house. He arrived at Rampur at 1.30 a.m. and saw that his sister was lying dead on cot. 3. On the written report, Chauparan P.S Case No.75/11 was registered under Section 304 B of the IPC against the appellant and in-laws. Police on investigation, submitted charge sheet against all named accused persons and they were put on trial for offences under Sections 304 B/34 and Sections 302/34 of the IPC. 4. Altogether twelve witnesses were examined and relevant documents were adduced into evidence and marked as exhibits. 5. Judgment of conviction and sentence has been assailed on the ground that P.Ws. 1 to 5, 6, 8 and 9 are relatives of the deceased. P.Ws.3, 4, & 7 were independent witnesses of Rampur village which was the matrimonial home of the deceased and they have not supported the prosecution case. P.W.-4 was declared as hostile. P.W.-4 and P.W. 7 have not supported the case of prosecution that accused persons were demanding ? 40,000. Other co-accused persons on similar allegations and evidence, have been acquitted of the charges under Sections 304 B and 302 of the IPC . 6. On the point of sentence, it is submitted that the appellant was only 19 years of age at the time of incidence and has already served more than five years eight months imprisonment. 7. Learned A.P.P. has defended the judgment of conviction and sentence. 8. 6. On the point of sentence, it is submitted that the appellant was only 19 years of age at the time of incidence and has already served more than five years eight months imprisonment. 7. Learned A.P.P. has defended the judgment of conviction and sentence. 8. In order to prove the charge under section 304B IPC, the prosecution need to establish the following essential ingredients of the offence: a. the death of a woman must have been caused by burns or bodily injury or occurs otherwise than under normal circumstances; b. such death must have occurred within seven years of marriage; c. soon before her death, a woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband; d. such cruelty or harassment must be for or in connection with the demand for dowry. 9. Under Section 113 B of the Evidence Act, presumption cannot be drawn unless there is some evidence to substantiate the allegation that there was demand of dowry soon before the death. It has been held in State of Rajasthan v. Teg Bahadur & Others, (2004) 13 SCC 300 “18. Our attention was drawn to Section 113-B of the Evidence Act and Section 304-B of the Penal Code, 1860 by the learned counsel appearing for the accused. A conjoint reading of Section 113-B of the Indian Evidence Act and Section 304-B of the Penal Code, 1860 shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. For the above proposition, learned counsel appearing for the accused, cited the judgment of this Court in the case of Hira Lal v. State (Govt. of NCT), Delhi [ (2003) 8 SCC 80 : 2003 SCC (Cri) 2016] . In that case this Court observed thus: (SCC pp. 86-87, para 9) “The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. 86-87, para 9) “The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. ‘Soon before’ is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression ‘soon before’ is not defined. A reference to the expression ‘soon before’ used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession’. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.” 10. Mere bald assertion of dowry demand will not suffice, there should be consistent evidence regarding the nature of demand, whether it was in cash or in kind. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.” 10. Mere bald assertion of dowry demand will not suffice, there should be consistent evidence regarding the nature of demand, whether it was in cash or in kind. If there was allegation of demand in cash, then what was the amount and who made the demand, need to be stated. Further, such demand should have been made soon before the death. The need of consistent and cogent evidence in this regard is necessary for the reason that such deaths, legally termed as dowry death, occur usually within the confines of the matrimonial home, and in the absence of any direct evidence, statutory presumption is raised under Section 113 B of the Evidence Act. Such a statutory presumption, is a departure from the general principles of criminal jurisprudence of presumption of innocence of the accused, therefore, it has to be carefully applied. There is no dearth of instances, where the entire family of the husband are falsely implicated in criminal cases out of spite and grudge to wreak vengeance. 11. In the present case, there is not a shade of doubt that death occurred within seven years of the marriage. Marriage took place on 21st day of May, 2011 and she died on 21.08.2011 as per the consistent evidence led by the prosecution. 12. It is also established from the post-mortem examination and viscera report that death was due to poisoning caused by organo phosphorus pesticide. 13. On dowry demand, as per the FIR, Rs.40,000/-was being demanded and the deceased was being harassed in reference to the said demand by her husband and in-laws. P.W.-1 resident of Rampur (village of the matrimonial home of the deceased) has stated about dowry demand, but is silent about the nature of demand. In cross-examination, it has been deposed that he was on litigating term with the family of the accused persons, and therefore, can be called an interested witness. P.W.-2 is resident of Village Rampur, has deposed that trouble arose due to dowry demand of Rs.40,000/-. P.W.-3 is resident of Village Rampur, has not supported the prosecution case that dowry demand was made, rather deposed that she was living happily in her matrimonial home. This witness has also not been declared hostile. P.W.-2 is resident of Village Rampur, has deposed that trouble arose due to dowry demand of Rs.40,000/-. P.W.-3 is resident of Village Rampur, has not supported the prosecution case that dowry demand was made, rather deposed that she was living happily in her matrimonial home. This witness has also not been declared hostile. P.W.-4 is resident of Village Rampur, has also not supported the prosecution case and was declared hostile. P.W.-5 is not a resident of Village Rampur, but he has supported the prosecution case of demand of Rs.40,000/-by the in-laws. P.W.-6 is not a resident of Village Rampur, but he has supported the prosecution case of demand of Rs.40,000/-by the in-laws. P.W.-7 is a resident of Village Rampur and has not supported the prosecution case of dowry demand and harassment in reference to it. She has however not been declared hostile. P.W.-8 is the informant of the case and the brother of the deceased. He has deposed that after 10-15 days of the marriage, the appellant raised a dowry demand of Rs. 40,000/-. Her in-laws also started making the demand. P.W.-9 is the mother of the deceased. She has deposed that Rs.40,000/-was being demanded by the husband and in-laws which was told by her daughter. She has deposed that information was received that her daughter had been assaulted and done to death by the in-laws. The allegation of assault and murder has not been substantiated by the post-mortem examination report which is specific about the cause of death by poisoning. P.W.-10 is the brother of the deceased who has deposed that demand of Rs. 40,000/-was made soon after the marriage by the in-laws and husband. 14. A bare perusal of the above oral evidence, will go to show that there is contradictory evidence on the point of dowry demand and harassment of the deceased in reference to it. P.Ws-3, 4 & 7 who are all resident of the village of the matrimonial home of the deceased, have not at all supported the prosecution case of dowry demand and out of them, P.W.-3 & P.W. 7 have not even been declared hostile. Only P.W. 1 and P.W. 2 of Village Rampur, have supported the allegation of dowry demand. P.W. 1 was on inimical term with the family of the accused persons, therefore he can be imputed with motive to falsely implicate the accused persons. 15. Only P.W. 1 and P.W. 2 of Village Rampur, have supported the allegation of dowry demand. P.W. 1 was on inimical term with the family of the accused persons, therefore he can be imputed with motive to falsely implicate the accused persons. 15. Matter for consideration is whether on these contradictory evidence led by the prosecution on dowry demand, conviction of the Appellant for causing dowry death can be sustained. 16. This Court is of the view that on these contradictory evidence, allegation of dowry demand cannot be accepted. In appreciation of evidence, consistency of evidence is one of the attribute of truthfulness, and contradiction in prosecution evidence creates doubt, the benefit of which should certainly go to the accused. In the absence of proof of dowry demand, presumption under Section 113 B of the Evidence Act cannot be raised. Under the aforesaid facts and circumstance of the case and for the reasons as discussed above, the appellant is entitled to benefit of doubt. Judgment of conviction and sentence is set aside. Sureties are discharged from the liability of bail bond. Appeal is allowed.