Tulsi Prasad Sah vs The State Of Jharkhand
2022 Latest Caselaw 4250 Jhar

             Cr. Appeal (D.B.) No. 315 of 2013
[Against the judgement of conviction dated 24.08.2012 and the order of
sentence dated 29.08.2012 passed by Sri Manoj Srivastava, learned
District and Additional Sessions Judge -II, Dumka in Sessions Case No.
234 of 2009]
                                ...........

Tulsi Prasad Sah                              ... ... Appellant
                             Versus
The State of Jharkhand                        ... ... Respondent
                             ...........
 For the Appellant            : Mrs. Jasvindar Mazumdar, Advocate
 For the State                : Mr. Saket Kumar, A.P.P.

                       PRESENT
       HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
              HON'BLE MR. JUSTICE AMBUJ NATH
                         ...........
C.A.V. on 08.09.2022            Pronounced on 18.10.2022

Heard Mrs. Jasvindar Mazumdar, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 24.08.2012 and the order of sentence dated 29.08.2012 passed by Sri Manoj Srivastava, learned District and Additional Sessions Judge -II, Dumka in Sessions Case No. 234 of 2009 whereby and whereunder the appellant has been convicted for the offences punishable under Sections 302/201 of the Indian Penal Code read with Section 34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 of the Indian Penal Code along with a fine of Rs. 5,000/- and rigorous imprisonment for five years for the offence under Section 201/34 of the Indian Penal Code and in default of payment of fine he shall undergo imprisonment for further six months. All the sentences have been directed to run concurrently.

3. A written report was submitted by Shiv Shankar Prasad on 01.04.2009 in which it has been stated that the marriage of his sister Beena Devi was solemnized with Tulsi Prasad Sah (appellant) in the year 2004. About one year after the marriage, his sister was kept properly by her husband and in-laws but thereafter on various pretexts she was started to be tortured. Demand was made of Rs. 50,000/- cash, fridge, Godrej almirah etc. which could not be fulfilled due to the economic condition of the informant as a result of which his sister was subjected to assault. A Panchayat was also held but the accused persons refused to abide by the decision taken in the Panchayat. It has

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been alleged that on 01.04.2009 an information was received that his sister has died and when he went to her matrimonial house he found his sister lying on the ground and a rope was found tied to her neck.

Based on the aforesaid allegations Shikaripara P. S. Case No. 30 of 2009 was instituted for the offences punishable under Sections 304B/34 of the Indian Penal Code against four accused persons. On completion of investigation, charge-sheet was submitted against all the four named accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Case No. 234 of 2009. Charge was framed against the accused persons under Sections 302/34 of the Indian Penal Code and alternatively under Section 304B/34 of the Indian Penal Code and Section 201/34 of the Indian Penal Code which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. Vide the impugned judgement three of the accused namely Kamla Devi, Santosh Prasad Sah and Soni Devi have been acquitted by the learned trial court.

4. In course of trial the prosecution has examined as many as fourteen witnesses in support of its case.

5. P.W.1 (Rekha Devi) has deposed that the deceased Beena Devi was her sister. Her marriage was solemnized with Tulsi Prasad Sah in the year 2004. She does not know about the relationship between her sister and brother-in-law. On the date of occurrence, all the four accused had committed the murder. The villagers had disclosed about such fact. She has stated that after marriage she was kept well for some time but thereafter quarrel started between them. A Panchayat was held but she had not attended the Panchayat. She does not know the reason for the quarrel between the husband and wife.

In her cross-examination, she has deposed that the brother of Tulsi Prasad Sah namely Santosh had informed them at around 4-5 p.m. She was not questioned by the police. The relationship between Beena and her husband was cordial.

6. P.W.2 (Dinesh Prasad Sah) and P.W. 3 (Rambabu Sah) did not support the case of the prosecution and were declared hostile by the prosecution.

7. P.W.4 (Rajesh Kumar Sah) has stated that he does not know anything about the incident.

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In his cross-examination, he has deposed that the relationship of Tulsi with his wife was cordial.

8. P.W.5 (Pradeep Kumar) did not support the case of the prosecution and was declared hostile by the prosecution.

9. P.W.6 (Mahabir Prasad Bhagat) has deposed that his niece Rekha Devi had told him on phone that Beena Devi has been murdered. The marriage of Beena Devi was solemnized with Tulsi Prasad Sah on 23.05.2005 and after one year of marriage she was subjected to assault and a demand of money was also made. In 2007 a Panchayati was held and all the three brothers had accepted about the assault committed upon Beena Devi. When he went to the place of occurrence he found Beena Devi lying on the floor. He came to know that in the night by committing assault Beena Devi was murdered and they had projected it as suicide by hanging.

In cross-examination, he has deposed that he had gone to the matrimonial house of Beena Devi when she was assaulted at the first instance. He cannot say the date on which money was demanded. After the Panchayat, the Bidai of Beena Devi was done and she was taken back to her matrimonial house. His statement was recorded in the police Station. He has stated that he had not given a statement that Beena Devi was subjected to assault and there was a demand of money.

10. P.W. 7 (Laxmi Prasad) has deposed that Beena Devi was his niece. After the marriage, Beena Devi remained at her matrimonial house for four years. There used to be quarrel between Beena Devi and her husband as well as in-laws. For this twice Panchayati was held at Kushpahari. He had also attended the Panchayat. He has stated that the accused persons had given an assurance in the Panchayat that Beena Devi will be properly kept. Tulsi Prasad Sah had later on developed an illicit relationship with an Adivasi girl. On 31.03.2009 he had received an information that Beena Devi has died. He along with others had gone to the matrimonial house of Beena Devi and had seen that a rope was tied in the neck of Beena Devi.

In cross-examination, he has deposed that the relationship between husband and wife turned bitter from the day Tulsi Prasad Sah had developed an illicit relationship with an Adivasi girl. His statement was not recorded by the police and he is giving his statement for the first time in the court.

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11. P.W. - 8 (Ramprasad Sah) did not support the case of the prosecution and has been declared hostile by the prosecution.

12. P.W. - 9 (Shivshankar Prasad) is the informant and the brother of Beena Devi whose marriage was solemnized with Tulsi Prasad Sah in the year 2005. His sister Rekha Devi had telephonically informed him that Beena Devi has been murdered. He had taken a train to Rampur Hat and thereafter he had gone to Kushpahari. He was taken inside the house and he had seen his sister lying dead on the ground. He has stated that Tulsi Prasad Sah used to demand an amount of Rs. 50,000/-. He used to also assault his sister. He has proved his hand writing on the written report which has been marked as Exhibit - 4.

In cross-examination, he has deposed that he cannot say the date on which Rs. 50,000/- was demanded by Tulsi Prasad Sah. His sister was never assaulted in his presence. No complaint was ever made with respect to the assault committed. He had not seen the occurrence but on suspicion regarding the marks on her body, the case was instituted. He does not know as to whether Tulsi had an illicit affair with an Adivasi girl or not.

13. P.W. - 10 (Manoj Kumar Sah) did not support the case of the prosecution and was declared hostile by the prosecution.

14. P.W. 11 (Deepak Kumar Sah) has deposed that the incident is of one and half years back. The incident was informed to him by his sister Rekha Devi. She had disclosed that Beena Devi has been murdered. Tulsi used to torture his sister for money and also used to assault her. He had gone to his sister's matrimonial house on 2-3 occasions and she had denied that she was assaulted. When he had gone from to the house of his second brother-in-law to the house of Beena, he had seen the husband and mother-in-law assaulting her. When the door was unlocked he went inside and saw Beena Devi was crying. On being asked the reasons for her crying, she had disclosed about the assault committed upon her by her husband and mother-in-law. When he was going to Sikaripara P.S. to lodge a complaint, Tulsi Prasad Sah and the villagers stopped him and pleaded with him that such incident will not occur in future. A Panchayati was also held in the Village. He has stated that Tulsi used to torture Beena Devi since he was having an illicit affair with another girl. When he had gone to the house of Beena Devi, he had seen a rope tied on her neck and blood was oozing out from her

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eyes and mouth.

In cross-examination, he has deposed that after one year of marriage he came to know about the torture committed upon his sister. On the day when he came to know about the incident he was at Farakka. He has stated that the police had not questioned him.

15. P.W. - 12 (Ganesh Mandal) did not support the case of the prosecution and was declared hostile by the prosecution.

16. P.W. - 13 (Ram Kishun Yadav) was posted as Sub Inspector of Police at Sikaripara P.S. He has identified the hand writing and signature of the Officer In-charge Ram Prawesh Kumar in the endorsement on the written report which has been marked as Exhibit

- 1/1. He has also proved the formal FIR which has been marked as Exhibit - 2. He had taken charge of the investigation on 01.04.2009 and thereafter had recorded the restatement of the informant. He inspected the place of occurrence which is at Village - Kushpahari in the house of Tulsi Prasad Sah. The body of Beena Devi was found in the middle room lying on the ground. A rope was found tied on the neck near the lips of the deceased. In course of investigation, he had recorded the statement of Laxmi Prasad Sah, Mahabir Prasad Bhagat, Deepak Kumar, Ramprasad Sah, Rekha Devi, Rajesh Prasad Sah, Dinesh Prasad Sah, Manoj Kumar Sah, Rambabu Sah and others. He has proved the inquest report which has been marked as Exhibit - 3. On completion of investigation, he had submitted charge-sheet against four accused persons. Several witnesses had stated that Tulsi Prasad Sah used to assault his wife and was having an illicit affair with a Santhali girl.

In cross-examination, he has deposed that Tulip Prasad Sah was arrested from his house.

17. P.W. - 14 (Dr. Ashok Kumar Gupta) was posted at Sadar Hospital, Dumka and on 01.04.2009 he had conducted autopsy on the dead body of Beena Devi and had found the following injuries on her body:-

"i) Bleeding from both angle of mouth.

ii) Nose Swollen.

iii) Ear normal, neck is normal, shoulder joint-normal and upper limbs normal, abdomen in normal condition. Waist and lower limb, long abrasion on both sides of thigh 6" long in each side on middle side of thigh. Sex organ normal, skull and head - no injury, eyes was swollen with surrounding area and some bleeding from right eye. Cheek and chin - NAD, Sex organ in Vagina NAD. And chest no injury. On dissection:

i) Neck: all the cartilage of trachea and hyoid bone NAD. No

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ii) Skull: all the chamber are normal and empty.

iii) Chest: Lungs and head NAD and heart chamber are full of blood Intestine NAD. Liver - Kidney NAD, Spleen: Ruptured causing Intra-abdominal hemorrhage, Uterus normal in size.

The cause of death was opined to be due to cardio respiratory failure caused by intra-abdominal hemorrhage and spleen damage caused by hard and blunt substance. He has opined that spleen injury may be caused by lathi. He has proved the post mortem report which has been marked as Exhibit - 4.

In cross-examination, he has deposed that spleen injury may be caused by fall on hard substance.

18. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his involvement in the incident.

19. Mrs. Jasvindar Mazumdar, learned counsel for the appellant has submitted that there are no eye-witnesses to the occurrence. The circumstantial evidence sought to be highlighted by the prosecution does not point to the guilt of the appellant. There is no evidence that the deceased was assaulted by the appellant with a lathi which led to a ruptured spleen.

20. Mr. Saket Kumar, learned A.P.P. has submitted that the deceased had died in the house of the appellant and injures were also found on her person which has not been suitably explained by the appellant as such the learned trial court has rightly convicted the appellant for the offence under Section 302 of the Indian Penal Code.

21. We have heard the learned counsel for the respective sides and have also gone through the Lower Court Records.

22. The genesis of the case is the death of the wife of the appellant within four years of marriage at her matrimonial house in an unnatural circumstance.

23. The charge was framed under Section 302/34 of the Indian Penal Code and alternatively under Section 304B/34 of the Indian Penal Code. The Learned trial court while coming to the conclusion that Section 304B IPC is not attracted has relied upon the fact that the prosecution has not led any evidence to show that soon before her death, she was harassed and tortured by the appellant and with respect to the demand of dowry the evidence is vague in nature.

24. It is not in dispute that the deceased had died in her matrimonial

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house and there is no denial that the appellant was present in the house. The dead body of Beena Devi was found lying on the ground in the middle room of the house of Tulsi Prasad Sah as per the evidence of P.W. - 13 (Investigating Officer). The autopsy report indicates that nose was found to be swollen, there was bleeding from both angles of mouth, long abrasions on both sides of thighs, bleeding from right eye and spleen was found ruptured. The inquest report reveals that a rope was also found tied on the neck of the deceased. The appellant has failed to explain the injuries found on the person of the deceased.

25. In the case of Sabitri Samantaray v. State of Odisha reported in 2022 SCC online SC 673 it has been held as follows:-

"18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an indi- vidual is on that individual. Although the Section in no way exoner- ates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circum- stances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a dif- ferent intention than the facts are specially within his knowledge which he must prove.

19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully es- tablished by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circum- stantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a re- sponse which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kir- kan v. State of Maharashtra, (2006) 10 SCC 681]"

26. So far as the present case is concerned, as has been noted above, the prosecution has successfully proved the chain of circumstances and the burden of proof has, therefore, shifted to the appellant but the appellant has failed to discharge his burden as envisaged under Section 106 Evidence Act. The learned trial court has considered the entire aspects of the case while convicting the appellant for the offences under Sections 302/34 and 201/34 of the Indian Penal Code vide judgment of conviction dated 24.08.2012 and order of sentence dated 29.08.2012 and having found no reasons to conclude otherwise, this

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appeal fails and the same is, hereby, dismissed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated 18.10.2022.

Umesh/-NAFR