Jharkhand High Court
Lakhiya Devi @ Lukiya Devi vs The State Of Jharkhand on 16 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 62 of 2023
With
I.A. No. 558 of 2023
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1. Lakhiya Devi @ Lukiya Devi, aged about 53 years, wife of Subhash
Chandra Pandey, resident of Raghunathpur, P.O. and P.S. Nimdih,
District-Seraikella-Kharsawan.
2. Tarak Nath Pandey, aged about 45 years, son of Badri Narayan Pandey,
resident of Village-Podadiha, P.O. and P.S. Santhaldih, District-Purulia,
West Bengal.
3. Kedarnath Pandey, aged about 40 years, son of Badri Narayan Pandey,
resident of Village-Podadiha, P.O. and P.S. Santhaldih, District-Purulia,
West Bengal.
....... Appellants
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. Shekhar Prasad Sinha, Advocate
For the Respondent : Mrs. Nihala Sharmin, Spl. PP
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th
04/Dated: 16 March, 2023
I.A. No. 558 of 2023:
1. The instant application has been filed on behalf of the appellants under
Section 389(1) of the Code of Criminal Procedure for suspension of
sentence passed in consequence of the judgment of conviction and order
of sentence dated 19.12.2022 and 21.12.2022 respectively in connection
with S.T. Case No. 13 of 2016(s) by the learned Additional Sessions
Judge-II, Seraikella.
2. Mr. Shekhar Prasad Sinha, learned counsel for the appellants has
submitted that the case of appellant no.1, namely, Lakhiya Devi @
Lukiya Devi has not conclusively been proved regarding demand of
dowry and as such, no case is made out also against under Section 304-B
of the I.P.C.
It has been submitted that Lakhiya Devi @ Lukiya Devi, being
the mother-in-law of the deceased, cannot be said to be the direct
beneficiary of the demand of dowry rather it is the husband who is solely
responsible for commission of crime so far as it relates to demand of
dowry or commission of offence under Section 304-B of I.P.C.
3. Submission has been made on behalf of appellant nos.2 and 3 that they
being the maternal uncles are not direct beneficiary of the demand of
dowry, as such, they are also entitled for suspension of sentence.
It has further been submitted by referring to the judgment
impugned that no specific allegation has been found in the testimony of
the witnesses so far as it relates to appellant nos. 2 and 3.
4. While on the other hand, Mrs. Nehala Sharmin, learned Spl. PP. has
vehemently opposed the application seeking suspension of sentence filed
on behalf of all the three appellants by submitting that Lakhiya Devi @
Lukiya Devi, being the mother-in-law of the deceased is directly
involved in commission of crime of either demand of dowry or abating
her daughter-in-law for commission of suicide, as such, it is a fit case
where the sentence against the mother-in-law, the appellant no.1, be not
kept suspended.
So far as the appellant no. 2 is concerned, submission has been
made by referring to the impugned judgment wherein direct complicity
has been found as per the description made by the P.W. 1 at para-2; P.W.
6 at para-1 and; P.W. 11 at para-21 wherein it has specifically been
deposed by the said witnesses about the involvement of the appellant
no.2, namely, Tarak Nath Pandey.
The learned State counsel further submits about the complicity
of the appellant no.3, namely, Kedarnath Pandey, since he is also the part
of the family, as such, has been convicted.
5. Learned Spl. PP on the basis of the aforesaid submission has submitted
that this application is fit to be rejected.
6. We have heard the learned counsel for the parties.
7. It appears from the order dated 30.01.2023 that the appeal had been
admitted for hearing and also the lower court records had been called for.
8. We have perused the lower court records.
9. This Court, after considering the judgment of conviction so far as it
relates to appellant no.1, namely, Lakhiya Devi @ Lukiya Devi who
happens to be the mother-in-law of the deceased, has found that the
learned trial court after taking into consideration the ingredient of
Section 304-B of the I.P.C. wherein all the three conditions for attracting
the offence said to have committed under the aforesaid section has been
found to be attributable to the appellant no.1 in the capacity of mother-
in-law.
10. We, although, are not discussing in detail the deposition since the appeal
is pending for final hearing, as such, what we have gathered from the
impugned judgment so far as it relates to the culpability of appellant
no.1, namely, Lakhiya Devi @ Lukiya Devi, is not prima facie satisfied
to pass the order of suspension of sentence reason being that the
culpability casted against the appellant no.1 has been found to be proved
by the learned trial court for attracting the ingredient under Section 304-
B of I.P.C.
11. Accordingly, prayer for keeping the sentence in abeyance so far as it
relates to appellant no.1, namely, Lakhiya Devi @ Lukiya Devi, is
hereby rejected.
12. So far as the appellant nos. 2 and 3 are concerned, we have gone through
paragraph-2 of the testimony of P.W. 1; paragraph-6 of the testimony of
P.W. 6 and; paragraph-21 of the testimony of P.W. 11 wherefrom we
have found so far as it relates to appellant no.2, namely, Tarak Nath
Pandey, that no specific attributality has been alleged save and except the
efforts said to have been taken by the appellant no.2 for conciliation in
between the families.
So far as appellant no.3 is concerned, there is no attributality
having been alleged by any of the witnesses.
13. We are conscious of the proposition laid down by the Hon'ble Apex
Court in Somesh Chaurasia v. State of M.P. and Another [2021 SCC
OnLine SC 480] wherein first proviso to Section 389(1) of the Cr.P.C.
has been elaborately been discussed wherein the Hon'ble Apex Court has
been pleased to lay down the law for providing an opportunity to file
affidavit to the State before passing the order of suspension of sentence.
14. This Court, after taking the said ratio into consideration has asked the
learned State counsel as to whether she intends to file any objection.
15. The learned State counsel is fair enough to submit on the basis of the
LCR that since the LCR is available, as such, there is no reason to file
affidavit in objection.
16. This Court after taking into consideration the fact that no specific overt
act has been levelled against the appellant nos.2 and 3 as also nothing
has come on record that both the appellant nos. 2 and 3 are living
together with the family of the appellant no.1, as such, the sentence so
far as it relates to appellant nos. 2 and 3, namely, Tarak Nath Pandey and
Kedarnath Pandey respectively, deserves to be kept in abeyance.
17. Accordingly, the appellant nos. 2 and 3, namely, Tarak Nath Pandey and
Kedarnath Pandey respectively, are to be released on bail during
pendency of appeal on furnishing bail bond of Rs. 25,000/- (Twenty Five
Thousand only) each with two sureties of the like amount, to the
satisfaction of the learned Additional Sessions Judge-II, Seraikella in
connection with S.T. No. 13 of 2016(s) arising out of Nimdih P.S. Case
No. 32 of 2015 [G.R. No. 720 of 2019].
18. In view thereof, I.A. No.558 of 2023 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
