Bijli Mandal vs The State Of Jharkhand
2023 Latest Caselaw 1438 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Criminal Appellate Jurisdiction)
               Acquittal Appeal No. 46 of 2018
                                -------
Bijli Mandal, s/o Shivlal Mandal, r/o village-Karihari, PO-Karihari,
PS-Hirodih, District-Giridih                          ... Appellant

                               Versus
1. The State of Jharkhand
2. Sukhdeo Mandal, s/o late Budhan Mandal
3. Basanti Devi, w/o Sukhdeo Mandal
4. Vikash Mandal, s/o Sukhdeo Mandal
      All r/o village-Chunglotola, Bhoktiyadih, PO-Chunglo, PS-
      Jamua, District-Giridih                   ... Respondents

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant          : Mr. S. K. Murtty, Advocate
For the State              : Mrs. Shweta Singh, APP
                              --------
                                                   ORDER

rd 3 April 2023 Per, Shree Chandrashekhar, J.

Bijli Mandal who is the informant of Jamua PS Case No. 280 of 2015 has preferred this acquittal appeal against the judgment dated 24th March 2018 passed by Additional Sessions Judge-III, Giridih in Sessions Trial No. 98 of 2016.

2. On the basis of a written report given by Bijli Mandal to the police, Jamua PS Case No. 280 of 2015 was registered against 10 persons and some unknown person for committing the offence under section 304-B/201/34 of the Indian Penal Code (in short, IPC). After the investigation, the chargesheet against Sukhdeo Mandal who is the father-in-law, Basanti Devi who is the mother-in-law and Vikash Mandal who is the husband of Priti Devi was laid for committing dowry death and causing disappearance of the dead body of Priti Devi. However, the proceedings against Reena Devi, Mamta Devi, Sabir Mandal and Sanjit Mandal were dropped due to lack of evidence while keeping the investigation pending against Bandhu Mandal son of late Sukar Mandal, Bandhu Mandal son of late Biro Mandal, Karu Mandal and Chakul Mandal.

3. The case of the prosecution is that about one month 2 Acquittal Appeal No. 46 of 2018

after the marriage of Priti Devi with Vikash Mandal the accused persons started abusing and torturing her in connection to demand of Rs.1.5 Lakhs, a Hero Honda motorcycle and a colour Television. On 14th October 2015, Vikash Mandal came to Bijli Mandal and informed him that Priti Devi was traceless whereupon in course of search her dead body was found in a well.

4. During the trial, the prosecution has examined 10 witnesses out of whom PW3 Savitri Devi, PW4 Manju Devi, PW5 Kishun Mandal, PW6 Lalmani Turi, PW7 Amarnath Mandal and PW8 Jharkhandi Mandal were declared hostile at the instance of the prosecution.

5. The case of the prosecution is based on the medical evidence and ocular evidence tendered by PW1 and PW2.

6. The trial Judge has held that the offence under section 302 IPC is not proved against the respondents for the following reasons:

"15. Upon hearing both sides and on scrutinizing the evidence available on record that it appears that PW9 Dr. Pradeep Baitha who had conducted postmortem examination on dead body of deceased has opined that cause of death was asphyxia due to drowning and water found in stomach and also found water bubbles in both lungs. It is almost impossible for water to get into the stomach if a body is submerged after death into water. In view of this medical evidence the prosecution version that accused persons firstly killed the deceased and thereafter thrown her dead body in to well does not found corroboration from medical evidence. PW2 has stated in his evidence that dead body was found in a well which is situated at a distance of ¼ km away from house of accused persons. Prosecution did not bring any such evidence on record to prove that these accused persons were seen either committing murder or throwing dead body of deceased into the well by any witness as material prosecution witnesses have not stated so in their evidence that they himself had seen occurrence of alleged murder and throwing dead body from their own eyes. PW2 has deposed that one Laxman Turi disclosed to him that dead body of deceased was thrown in well after killing her, but no such witness was produced for examination in the court by prosecution. PW1 has stated in his evidence that co-villagers of accused namely Pradeep Turi, Manju Devi etc. disclosed about killing and throwing her dead body but it appears that PW4 Manju Devi was declared hostile and said Pradeep Turi was not examined during trial. Thus, it appears that prosecution in order to establish the alleged murder and throwing dead body in the well has failed to bring any cogent and reliable evidence on record as no body had seen these accused persons committing murder of deceased and no witness has come forward to depose against these accused persons that these accused persons were seen either at the well or near the well on or before the occurrence or even soon after the occurrence. PW2 himself has deposed that well was situated outside the house of accused persons at a distance of ¼ km away from their house. PW2 has admitted in his evidence that dead body was retrieved from the well in his presence and there was no external injury on the dead body.

3 Acquittal Appeal No. 46 of 2018

So, all these material available on record indicates that the prosecution allegation of murder finds no corroboration at all from any corner. PW1 has deposed in his evidence that when they went to the matrimonial house of deceased accused persons shown their ignorance about the occurrence and thereafter all accused persons fled away form their house. In the case of Bipin Kumar Mondal v. State of West Bengal reported in AIR 2010 SC 3638 it was held that mere abscondence can scarcely be held as a determining link in completing the chain of circumstantial evidence. Therefore, in the present case the chain of materiel circumstances is completely absent and vital links are missing therefore the incriminating circumstances to prove the prosecution allegation of murder are absent. Thus, prosecution has failed to bring any circumstances on record against the above named accused persons to prove the charge of offence punishable u/s 302 of IPC. Now the question as to whether it is a case of dowry death because death occurred in circumstances other than natural in matrimonial house of deceased within seven years of marriage is the next aspect to be considered."

7. While discussing the offence under section 304-B IPC by the respondents, the trial Judge has referred to the judgments in "Bipin Kumar Mondal v. State of W.B" AIR 2010 SC 3638, "Vipin Jaiswal v. State of A.P." (2013) 3 SCC 684, "Rajeev Kumar v. State of Haryana" AIR 2014 SC 227, "Indrajit Sureshprasad Bind & Ors. v. State of Gujarat" (2013) 14 SCC 678 and "Baijnath & Ors. v. State of M.P" (2017) 1 SCC 101 and, on appreciation of the evidence laid before him, came to a conclusion that the prosecution has failed to establish the charge under section 304-B IPC.

8. The trial Judge has held as under:

"22. Here in the present case it is apparent that the prosecution has failed to bring cogent, coherent and persuasive evidence to establish beyond doubt that accused persons demanded dowry and subjected the deceased to cruelty or harassment for or in connection with any demand for dowry. The alleged demand and cruelty sought to be projected by the prosecution if accepted to be true has lingered for almost for a considerable period yet admittedly no complaint was made thereof to any authority by the informant side as admitted by the prosecution witnesses itself. Further it is also admitted by the prosecution witnesses that allegation of cruelty and harassment was not seen by them from their own eyes and the same is founded on hearsay version and on the confidential communication by the deceased to pw1 in particular. In view of the judgment of Baijnath case mentioned herein before the factum of unnatural death in the matrimonial home within seven years of marriage therefor ipso facto not sufficient to bring home the charge u/s 304B IPC.

23. Considering the discussion made here in above as well as upon carefully scrutinizing the evidence available on record I find and hold that the prosecution has miserably failed to prove the charges levelled against above named accused beyond all reasonable doubts. Accordingly above named accused persons are hereby acquitted from the charge of offence punishable u/s 302/304B/34 of IPC and accused namely Sukhdeo Mandal and Basanti Devi are hereby discharged from the liabilities of their bail bonds also."

9. As PW9, Dr. Pradeep Baitha who conducted the 4 Acquittal Appeal No. 46 of 2018

postmortem examination over the dead body of Priti Devi has found blood with froth coming out from the mouth and nostril and general swelling of her body. The doctor has also observed peeling of skin of the dead body. On the basis of these observations, PW9 has rendered an opinion that death had occurred 3-4 days prior to postmortem examination.

10. In his cross-examination, PW9 has also stated that he did not find any antemortem injury over the dead body of Priti Devi. This is also the evidence of PW9 that water bubbles were found in both lungs and stomach of the deceased who was carrying pregnancy of 20-22 weeks.

11. PW2 in whose presence the dead body of Priti Devi was retrieved from a well has stated in the Court that he did not find any external injury over her dead body. This is also the evidence of PW2 that Vikash Mandal came to his house and informed him that Priti Devi was missing whereupon in course of search her dead body was recovered from a well.

12. While so, merely because Priti Devi was missing from house an inference cannot be drawn on a culpability of the accused persons that they have committed murder. There is no evidence of any violence found on her dead body and PW9 has rendered an opinion that death of Priti Devi was caused due to asphyxia on account of drowning.

13. The essential ingredients for constituting the offence punishable under section 304-B IPC are: (i) death within seven years of marriage, (ii) death caused by any burn or bodily injury or otherwise than under normal circumstances, and (iii) soon before the death the victim was subject to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry.

14. In "Baijnath" the Hon'ble Supreme Court has observed as under :

"29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon 5 Acquittal Appeal No. 46 of 2018

the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith."

15. This is well-settled that in a prosecution under section 304-B IPC, one of the essential requirements for constituting the offence under section 304-B IPC is that the prosecution must establish by producing cogent, clear and consistent evidence that soon before her death the woman was subjected to harassment and torture in connection to demand of dowry. However, the trial Judge has rightly held that the prosecution has failed to produce any cogent and consistent evidence as regards demand of dowry and harassment and torture of Priti Devi in connection to demand of dowry soon before her death. In the present case, the prosecution has failed to establish that there was a demand of dowry from PW1 and PW2 on non-fulfillment of which the accused persons have inflicted various acts of harassment and torture upon Priti Devi.

16. This is the case projected through PW1 and PW2 that Priti Devi had informed them about demand of dowry by the accused persons. In paragraph no.1 of his examination-in-chief, PW2 who is the uncle of Priti Devi has admitted in the Court that it was Priti Devi who informed him about demand of Rs.1.5 Lakhs by the accused persons. This statement of PW2 is hearsay because Priti Devi has not made any such statement before the police or in the Court.

17. Under section 32 of the Evidence Act, statements, written or verbal made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are relevant facts when such statements relate to cause of death.

18. In "Inderpal v. State of M.P." (2001) 10 SCC 736 the Hon'ble Supreme Court has held thus:

6 Acquittal Appeal No. 46 of 2018

"7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question..."

19. While so, the evidence produced by the prosecution to prove that soon before her death Priti Devi was subjected to harassment and torture is not admissible evidence and therefore the charge under section 304-B IPC cannot be said to have been proved by the prosecution.

20. In "Mahavir Singh v. State of M.P." (2016) 10 SCC 220 the Hon'ble Supreme Court has observed as under:

"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."

21. Having regard to the aforesaid facts and circumstances in the case, we find no ground to interfere in the judgment passed in Sessions Trial No. 98 of 2016 and, accordingly, Acquittal Appeal No. 46 of 2018 is dismissed.

22. Let the lower Court records be transmitted to the Court concerned, forthwith.

23. Let a copy of the Judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated: 3rd April 2023 Amit N.A.F.R