Jharkhand High Court
The State Of Jharkhand vs Upendra Mehta on 22 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal (DB) No. 1 of 2012
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The State of Jharkhand ... Appellant
Versus
1. Upendra Mehta, s/o Balkaran Mahto, r/o village-Tukbera, PO &
PS-Bishrampur, District-Palamau
2. Balkaran Mahto, s/o Bishunpat Mahto
3. Ajay Mahto, s/o Balkaran Mahto
4. Tejni Devi, w/o Ajay Mahto
5. Kalawati Devi, w/o Balkaran Mahto
Nos.2 to 5 r/o village-Padwa, PO & PS-Paton, District-
Palamau ... Respondents
With
Criminal Appeal (DB) No. 3 of 2012
Amardeo Mahto, s/o late Faudar Mahto, r/o village-Gariadih
Bankheta, PO & PS-Patan, District-Palamau (Jharkhand)
... Appellant
Versus
1. The State of Jharkhand
2. Upendra Mehta, s/o Balkaran Mahto,
3. Balkaran Mahto, s/o late Bishunpat Mahto
4. Ajay Mahto, s/o Balkaran Mahto
5. Kalawati Devi, w/o Balkaran Mahto
6. Tejni Devi, w/o Ajay Mahto
Sl. Nos. 2 to 6 r/o village-Tukbera, Tola-Sakwan, PO-Kanda,
PS-Bishrampur, District-Palamau ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants/State : Mr. Pankaj Kumar, PP
[in Acquittal Appeal (DB) No. 1 of 2012]
Mr. Ajit Kumar Dubey, Advocate
[in Criminal Appeal (DB) No. 3 of 2012]
For the Respondents : Mr. A. K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
[in Criminal Appeal (DB) No. 3 of 2012]
Mrs. Kumari Rashmi, APP
[in Criminal Appeal (DB) No. 3 of 2012]
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JUDGMENT
22nd March 2023
Per, Shree Chandrashekhar, J.
Acquittal Appeal (DB) No. 1 of 2012 has been filed by
the State of Jharkhand and Criminal Appeal (DB) No. 3 of 2012
2 Acquittal Appeal (DB) No. 1 of 2012
with
Criminal Appeal (DB) No. 3 of 2012
has been filed by Amardeo Mahto both against the judgment of
acquittal dated 29th July 2011 passed in Sessions Trial No. 118 of
2010.
2. In Bishrampur PS Case No. 167 of 2009, Upendra
Mehta who is the husband of Rita Devi, Balkaran Mahto who is the
father-in-law, Kalawati Devi who is the mother-in-law, Ajay Mahto
who is the brother-in-law and Tejni Devi who is wife of Ajay Mahto
were made accused on the suspicion that they have committed
dowry death of Rita Devi in furtherance of common intention.
According to the prosecution, after the marriage of Rita Devi which
was solemnized in the year 2004 with Upendra Mehta the accused
persons started ill-treating her in connection to demand of
Rs.4 Lakhs. Amardeo Mahto who is the father of Rita Devi and
informant of this case has also made an allegation against the
accused persons of harassing and ill-treating his daughter because
she was not able to bear a child.
3. On 26th November 2009 at about 6:30 AM, Upendra
Mehta gave an information to the informant that Rita Devi had
become traceless since last night. However, when the informant
visited village Tukbera he found the house of the accused persons
locked. Thereafter he alongwith other villagers went towards the
well in the village where he found slippers of his daughter. The
villagers who apprehended that Rita Devi has fallen into the well
then started searching for her body with an anchor and that is how
the dead body of Rita Devi has been recovered from the well. He
has further stated that at the time of the marriage he had given
articles worth Rs.1,50,000/- to the accused persons but on
account of greed for more dowry they have killed his daughter. The
informant has, therefore, raised a suspicion that the accused
persons have committed dowry death of his daughter.
4. A charge-sheet dated 17th February 2010 was laid
against Upendra Mehta and Balkaran Mahto. Later on, charge-
sheet no. 96 of 2010 was submitted against Ajay Mahto, Tejni Devi
and Kalawati Devi. The records of S.T. No. 236 of 2010 which was
3 Acquittal Appeal (DB) No. 1 of 2012
with
Criminal Appeal (DB) No. 3 of 2012
started on the basis of the charge-sheet no. 96 of 2010 were
amalgamated with S.T. No. 118 of 2010 and a common charge was
framed against the accused persons under section 304-B read with
34 of the Indian Penal Code (in short, IPC), vide order dated 27 th
July 2010.
5. In the trial the prosecution has examined 10 witnesses
out of whom PW9 Jayant Tirky and PW10 Dinesh Toppo are the
investigating officers. On behalf of the accused persons 3 defence
witnesses were examined to prove their innocence. They have also
laid documentary evidence to set-up a defence that Rita Devi has
died an accidental death after seven years of her marriage.
6. PW1 Sudarshan Mahto, PW2 Santosh Kumar Mehta
and PW8 Giriwar Mahto are sons of the informant and PW5 Lakho
Devi is his wife. These witnesses are related witnesses who
according to Mr. A. K. Kashyap, the learned senior counsel for the
respondents are interested witnesses. PW1, PW2, PW4, PW5 and
PW8 are not the eyewitness to the actual occurrence in which Rita
Devi has died. These witnesses have tendered evidence on demand
of dowry but the information about demand of dowry was given to
them by Rita Devi. 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. However, there is no
direct evidence on demand of dowry by the accused persons and
these related witnesses have given hearsay evidence. These
witnesses stating in the Court that Rita Devi gave information to
them about demand of Rs.4 Lakhs is hearsay and not admissible in
evidence inasmuch as this part of their testimony is not covered
under section 32 of the Evidence Act, being not spoken by Rita
Devi herself. However, the statement made by these witnesses that
Rita Devi gave information about demand of dowry is usable by the
4 Acquittal Appeal (DB) No. 1 of 2012
with
Criminal Appeal (DB) No. 3 of 2012
prosecution to show that Rita Devi had made such statements
before them. But then, on such evidence it is not possible to
conclude that the accused persons inflicted various acts of
harassment and torture upon Rita Devi in connection to demand of
dowry. Therefore, the prosecution has failed to establish one of the
essential ingredients for constituting the offence under section
304-B IPC.
7. Section 304-B IPC is extracted as under :
304-B. Dowry death.--(1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand
for dowry, such death shall be called "dowry death", and such
husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry"
shall have the same meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.
8. Section 304-B IPC provides that where the death of a
woman is caused by burns or bodily injury or occurs otherwise
than under normal circumstances, within seven years of her
marriage, and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative
of her husband for, or in connection with any demand of dowry,
the accused has committed dowry death.
9. In "Baijnath v. State of M.P." (2017) 1 SCC 101 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."
10. In "Kamesh Panjiyar alias Kamlesh Panjiyar v. State of
Bihar" (2005) 2 SCC 388" the Hon'ble Supreme Court has observed
as under:
5 Acquittal Appeal (DB) No. 1 of 2012
with
Criminal Appeal (DB) No. 3 of 2012
"11. ... Prosecution is obliged to show that soon before the occurrence
there was cruelty or harassment and only in that case presumption
operates. Evidence in that regard has to be led by prosecution. "Soon
before" is a relative term and it would depend upon the circumstances
of each case and no strait-jacket formula can be laid down as to what
would constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of
dowry death as well as for raising a presumption under Section 113-
B of the Evidence Act. The expression "soon before her death" used in
the substantive Section 304-B IPC and Section 113-B of the Evidence
Act is present with the idea of proximity test. No definite period has
been indicated and the expression "soon before" is not defined. A
reference to the expression "soon before" used in Section 114
Illustration (a) of the Evidence Act is relevant. It lays down that a
court may presume that a man who is in the possession of goods soon
after the theft, is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession. The
determination of the period which can come within the term "soon
before" is left to be determined by the courts, depending upon the
facts and circumstances of each case. Suffice, however, to indicate
that the expression "soon before" would normally imply that the
interval should not be much between the cruelty or harassment
concerned and the death in question. There must be existence of a
proximate and live link between the effects of cruelty based on dowry
demand and the death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to disturb mental
equilibrium of the woman concerned, it would be of no consequence."
11. The postmortem over the dead body of Rita Devi was
conducted by the Medical Board consisting of PW6 Dr. Anil Kumar
Shrivastava, Dr. Sanjay Kumar and PW7 Dr. Awadhesh Singh
which gave the following opinion:
"(i) No external injury was detected on the dead
body
(ii) No external injury was detected on neck
(iii) Fine froth coming out from nostril
(iv) Eyes were not congested, face not congested.
On internal examination head and skull were
normal. Neck trachea, fine froth in trachal lomes.
Chest-Lung voluminous with blood stained froth
coming out on cut section. Heart-right heart was
full. Left heart is empty. Abdomen-stomach was
full of water (volume 750 mi. approx)."
12. It was opined by the Medical Board that cause of death
was drowning and time since death within 24 hours.
13. Having examined the materials on record, we are of the
6 Acquittal Appeal (DB) No. 1 of 2012
with
Criminal Appeal (DB) No. 3 of 2012
opinion that the judgment of acquittal passed in Sessions Trial
No. 118 of 2010 does not warrant interference by this Court.
14. 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."
15. Accordingly, Acquittal Appeal (DB) No. 1 of 2012 and
Criminal Appeal (DB) No. 3 of 2012 are dismissed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 22nd March 2023
Amit
N.A.F.R
