Jharkhand High Court
The State Of Jharkhand Through ... vs Anthony Francis on 3 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 3 of 2018
The State of Jharkhand through D.C. Dhanbad, PO, PS & District Dhanbad
.... Appellant
Versus
Anthony Francis, s/o late Lazar Francis, r/o Muhalla Hesalong, Lapra,
Mc- Luskiegang, PO & PS Luskieganj, District Ranchi. .... Respondent
------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Appellant-State : Mr. Saket Kumar, APP
For the Respondent : None
--------
ORDER
rd
3 April 2023
Per, Shree Chandrashekhar, J.
The State of Jharkhand is in Appeal under section 378 of the
Code of Criminal Procedure (in short, CrPC) challenging the judgment of
acquittal of Anthony Francis passed in Sessions Trial Case No. 164 of 2008.
2. In a prosecution under section 304-B of the Indian Penal Code
(in short, IPC), the prosecution has examined 9 witnesses out of whom PW5
Abdul Shakoor is the father and PW6 Md. Muzammil Ansari is the brother of
Tabassum Parveen. According to the investigating officer of Jorapokar PS
Case No. 33 of 2008 which was lodged on the basis of a written report given
to the police by Abdul Shakoor on 10 th February 2008, PW1, PW2, PW3,
PW4 and PW7 did not provide any information regarding demand of dowry
by Anthony Francis who is the respondent in the present Acquittal Appeal.
3. The case of the prosecution is that the respondent who was a
tutor had solemnized inter-caste marriage with Tabassum Parveen and on
account of non-fulfillment of his demand of dowry he used to ill-treat and
threaten his wife to kill her. The further case of the prosecution is that the
respondent alongwith his brother Joseph Francis and sister Baby Anthony
have committed murder of Tabassum Parveen on 9th February 2008.
4. Dr. Swapan Kumar Sarak who conducted the postmortem
examination over the dead body of Tabassum Parveen has found a ligature
mark of the size of ½ inch x ¼ inch wide over thyroid on the front of her
neck, running obliquely upwards and backwards on both sides towards ear
lobule on right side and left side of occipital region, with a gap of 6 inch on
back.
5. As PW8, the doctor has rendered an opinion that the aforesaid
external injury was antemortem in nature, subcutaneous tissues beneath
ligature mark were dry white and no abnormality was found over soft tissue
of the neck. PW8 has further found that mucous membrane of trachea and
larynx were found congested, both lungs were also congested and, infact, all
internal organs were found congested.
6. In the opinion of the doctor, Tabassum Parveen had died within
18 to 24 hours of the postmortem examination and her death was due to
asphyxia as a result of hanging.
7. The investigating officer has admitted in the Court that she did
not seize broken bangles, ladder, rassi etc. from the place of occurrence
which is the matrimonial home of Tabassum Parveen.
8. The learned trial Judge has held that PW5 and PW6 were not
consistent on the point of demand of dowry by the respondent. The marriage
of the respondent was solemnized with Tabassum Parveen in the Registrar
Office and, later on, upon insistence of the parents of Tabassum Parveen,
Nikah was also performed.
9. The learned trial Judge has referred to the judgments in
"Baijnath v. State of Madhya Pradesh" (2017) 1 SCC 101 and "Bharat
Bhushan v. State of Madhya Pradesh" (2014) 13 SCC 525 to arrive at a
conclusion that the prosecution has failed to establish that soon before her
death Tabassum Parveen was subjected to harass and torture in connection to
demand of dowry.
10. As regards cruelty and harassment of Tabassum Parveen soon
before her death, the learned trial Judge has held as under:
"27. The evidence regarding commission of cruelty and
harassment to the deceased is also not very consistent and
cogent. No prior report, as aforesaid, has been lodged in this
regard anywhere including the police or the Anjuman
Committee. Simply because the death has been caused within
seven years of the marriage, the presumption of dowry death
U/s 113-B of the Evidence Act will not be attracted. To draw
this presumption, the prosecution has to prove by a cogent,
credible and trustworthy evidence that dowry was demanded
and the deceased was harassed for the same and she was
subjected to torture or harassment soon before her death. If
these ingredients of Sec. 304-B IPC are proved beyond
reasonable doubts, then only the presumption U/s 113-B of
Evidence Act will be attracted."
11. In a prosecution under section 304-B of IPC, it is necessary for
the prosecution to prove such facts to establish the following ingredients:
(i) death within 7 years (ii) death otherwise than under normal circumstances
and (iii) soon before her death woman was subjected to harass and torture in
connection to demand of dowry.
12. 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 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."
13. The prosecution has established that Tabassum Parveen has died
unnatural death inasmuch as the medical evidence clearly establish that
Tabassum Parveen has committed suicide.
14. The presence of ligature mark running obliquely upwards and
backwards on both sides clearly established that it was a case of suicide and
not a homicidal death (refer: Textbook of Medical Jurisprudence and
Toxicology by Modi 26th Edition). The death of Tabassum Parveen has
occurred within 7 years of marriage has also been established by the
prosecution. However, there is no evidence on the record that soon before her
death Tabassum Parveen was subjected to harassment and torture in
connection to demand of dowry. No doubt there is no fixed time-frame to
find whether soon before her death the woman was subjected to harassment
and torture. But then, the prosecution must show that there was a live-link
between the demand of dowry and death of the woman. As noticed above, the
prosecution has miserably failed to establish that soon before her death
Tabassum Parveen was subjected to harassment and torture in connection to
demand of dowry.
15. The expression "soon before the death" is not defined in the
statutes and as held in "Kamesh Panjiyar v. State of Bihar" (2005) 2 SCC
388 the expression "soon before" is a relative term and it would depend
upon the circumstances of each case.
16. As PW5, the father of the victim girl has deposed in the Court
about assault upon his daughter by the respondent, his brother Joseph Francis
and sister Baby Anthony in connection to demand of dowry. He has further
stated in the Court that his daughter used to inform him about her
ill-treatment at the hands of the accused persons and her husband would beat
her in drunken state. However, in his cross-examination, PW5 has admitted
that he did not make any allegation of demand of dowry in his written
complaint given to the police; he has not made any allegation about demand
of Rs.5,000/- or Rs.20,000/- and; he did not make any allegation of demand
of motorcycle by the respondent. PW6 who is the brother of the victim girl
has also made statements in the Court regarding harassment and ill-treatment
of his sister in her matrimonial home. At the same time, PW6 has admitted in
his cross-examination that he did not inform the police about demand of
Rs.5,000/- and Rs.20,000/- by the respondent. He has also stated that after
payment of Rs.20,000/- his sister was treated properly in her matrimonial
home for few days.
17. The statements made by PW5 and PW6 in the Court regarding
demand of Rs.5,000/- and Rs.20,000/- by the respondent are definitely
improvements by them in the Court inasmuch as these witnesses have
admitted in the Court that they did not make such statements before the
police.
18. This is a well-accepted proposition in law that the judgment of
acquittal recorded by the learned trial Court is not interfered with by the High
Court on some minor mistakes in appreciation of the evidence and, that, the
view taken by the learned trial Court must be accorded precedence.
19. In "Sambasivan v. State of Kerala" (1998) 5 SCC 412 the
Hon'ble Supreme Court has observed as under:
"7. The principles with regard to the scope of the powers of
the appellate court in an appeal against acquittal, are well
settled. The powers of the appellate court in an appeal
against acquittal are no less than in an appeal against
conviction. But where on the basis of evidence on record two
views are reasonably possible the appellate court cannot
substitute its view in the place of that of the trial court. It is
only when the approach of the trial court in acquitting an
accused is found to be clearly erroneous in its consideration
of evidence on record and in deducing conclusions therefrom
that the appellate court can interfere with the order of
acquittal....."
20. Having examined the materials on record, we find no ground to
interfere in this matter and, accordingly, Acquittal Appeal No. 3 of 2018 is
dismissed.
21. Let the lower Court records be transmitted to the Court
concerned, forthwith.
22. Let a copy of the judgment be transmitted to the Court
concerned through FAX.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
High Court of Jharkhand, Ranch
Dated: 3rd April 2023
RKM/
NAFR
