Jharkhand High Court

Sharwan Bhagat @ Sharwan Kumar ... vs The State Of Jharkhand on 16 August, 2023

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Cr. Revision No. 654 of 2022
1. Sharwan Bhagat @ Sharwan Kumar Bhagat.
2. Manoj Bhagat @ Manoj Kumar Bhagat.
3. Sumitra Devi.                        ... ...Petitioners
                     Versus
The State of Jharkhand                  ... ...Opp. Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

For the Petitioners : Mr. Rajeeva Sharma, Sr. Advocate.

: Mr. Om Prakash, Advocate.

For the State : Mr. Subodh Kumar Dubey, A.P.P. For the Informant : Mr. Vikas Pandey, Advocate.

: Ms. Diksha Dwivedi, Advocate.

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Order No. 11/ dated 16.08.2023

Learned Sr. Counsel Mr. Rajeeva Sharma on behalf of

petitioners and on behalf of State, learned A.P.P. Mr. Subodh

Kumar Dubey and also on behalf of O.P.No.2 learned Counsel

Mr. Vikas Pandey are present.

2. The learned Counsel for the petitioners has submitted

that by way of this Cr. Revision, the impugned order dated

28.04.2022 passed by the learned Principal Sessions Judge,

Pakur in S.T.No. 117 of 2021, arising out of Pakuria P.S. Case

No. 06 of 2021 has been assailed whereby the trial court has

been pleased to add the charge under Section 302 of I.P.C. along

with the charge of 304 B read with 34 of I.P.C. and Section 4 of

D.P. Act.

3. It is also further submitted that initially the F.I.R. was

lodged under Section 304 (B) and Section ¾ of D.P. Act, 1961.

The cognizance was taken for the same Section and the case

was committed to the court of sessions for trial. The trial court

framed charge under Section 304 (B) read with 34 of I.P.C. and

Section ¾ of Dowry Prohibition Act and subsequently the

charge under Section 302 of I.P.C. was also added.

4. The learned Counsel for the petitioners has submitted

that there is no evidence against the petitioners to frame charge

under Section 302 of I.P.C. Only one witness was examined.

Rest of the charge-sheeted witnesses were left to be examined

and on the basis of the testimony of only one witness who was

examined before the trial court, the charge was framed under

Section 302 of I.P.C. and from his testimony no charge under

Section 302 of I.P.C. is made out and contended that the

impugned order passed by the court-below is based on perverse

finding.

5. The learned Counsel for the informant and the learned

A.P.P. on behalf of State opposed the contentions made by

learned Counsel for the petitioners and contended that the

charge could be altered at any stage of the trial. There was

sufficient evidence against the accused persons for adding the

charge under Section 302 of I.P.C.

6. From the perusal of the F.I.R., it is found that the

informant gave the written information with the Police Station

concerned with these allegations that the sister of the informant

was married in the year 2015 with Shrawan Bhagat according

to Hindu rites and rituals and out of wedlock two issues were

born and matrimonial life was going on well and happily for four

years. After two years of marriage the husband of his sister i.e.

brother-in-law and mother-in-law began to torture her for

demand of dowry. She used to complain for the same over the

phone to him. In the meantime, the demand of some rupee was

also fulfilled by him. Again on 18.02.2021 the amount of

50,000/- rupees was demanded. The informant had also

deposited 10,000/- rupees in the account of his sister as part

payment. Still his sister was subjected to cruelty for non-

fulfilment of the alleged demand. On 16.03.2021 at 7:20 of

morning his sister had also made complaint in regard to the

torture being given to her for non-fulfilment of the demand and

on the very day at 11:20 information was received that his sister

died. Accordingly, the F.I.R. was lodged for the dowry death

against the accused Shrawan Bhagat, Manoj Bhagat and

Sumitra Bhagat. The charge-sheet was also filed for the offence

under Section 304 (B) read with 34 of I.P.C. and ¾ of D.P. Act

against all the three accused with the Magistrate concerned.

7. The trial court also framed the charge for the very offences

for which the charge-sheet was also filed and cognizance was

also taken. Subsequently witness Kundan Kumar Bhagat the

brother of the informant was examined before the trial court.

The testimony of this witness is annexed Annexure No.3 of this

petition. This witness in his Examination-in-chief reiterated the

prosecution story as given in the F.I.R. and also stated that on

16.03.2021 after receiving phone call from his sister in regard

to demand of dowry and harassing her for non-fulfilment of the

same at 11:20 on the very day Shrawan Bhagat the husband of

her sister told that his sister had hanged herself in the

matrimonial house and on receiving the information he reached

to the Hospital and found his sister dead. It was also deposed

by this witness that it appeared that his sister was strangulated

to death. In cross-examination this witness denied the

suggestion that his sister was not strangulated to death and

also denied the suggestion given on behalf of the defence in

regard to demand being made on behalf of the accused persons.

8. From the testimony of this witness there is nothing new so

as to alter the charge only the statement of this witness that his

sister was strangulated to death came in his testimony which

was not in the F.I.R. itself

9. So far as the offence under Section 304 (B) of I.P.C. is

concerned, there are following ingredients to the make out the

offence:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected soon before her death.

10. As the death caused under such circumstances shall be

called dowry death caused by the husband or relatives.

11. In view of the allegations made in the F.I.R. the marriage

was solemnized in 2015 and the dowry death was caused on

16.03.2022. As such the dowry death was caused within 7 years

of marriage. In the F.I.R. itself the demand of dowry and for

non-fulfilment of the same, the harassment caused is also

alleged. So far as the death is concerned, same was not natural

but as per post-mortem report the cause of death is cardio

respiratory failure due to strangulation and in external injuries

ligature mark over the neck and hyoid bone is shown fracture.

Even in view of the post-mortem report the offence for which the

charge-sheet was filed and the charge under Section 304 (B)

read with 34 of I.P.C. was initially framed is still made out. On

the basis of the post-mortem report there cannot be any ground

to add the charge under Section 302 of I.P.C.

12. The Hon'ble Apex Court has held in Rajbir vs. State of

Haryana (2010) 15 SCC 116:

7. We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304-B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to the Registrars General/Registrars of all High Courts, which will circulate it to all trial courts.

13. In view of the above case law as held by Hon'ble Apex Court

the alternate charge could have been framed while framing the

charge under Section 304 (B) of I.P.C.; but both the charges

could not be framed simultaneously. The impugned order

passed by the court-below adding the charge 302 of I.P.C. is

modified to the extent that this charge under Section 302 of

I.P.C. shall be the alternate charge of 304 (B) of I.P.C.

14. Accordingly, this Cr. Revision is allowed partly and the

impugned order passed by the court-below is modified to the

extent that the charge under Section 302 of I.P.C. shall be

alternate charge of Section 304 (B) of I.P.C.

15. It is also made clear herein that any observation made by