Manorama Devi vs The State Of Jharkhand
2023 Latest Caselaw 1823 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Appellate Jurisdiction)

                      Acquittal Appeal No.79 of 2018
Manorama Devi, w/o late Nakul Singh, r/o village-Phulgo, PO & PS-Dumri,
District-Giridih                                         ...... Appellant
                                 Versus
1. The State of Jharkhand
2. Chandra Shekhar Singh @ Pappu Singh, s/o Kishori Singh, r/o Bhuli 'A'
Block, near Qr. No.43, PO & PS-Bhuli, District-Dhanbad
                                                             ...... Respondents


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

For the Appellant          : Mr. Krishna Prajapati, Advocate
For the State of Jharkhand : Mr. Bishwambhar Shastri, APP
                           --------------
                                                            ORDER

1st May 2023 Per, Shree Chandrashekhar, J.

I.A No.4114 of 2018 I.A No.4114 of 2018 has been filed by the appellant for condonation of delay of 294 days in filing Acquittal Appeal No.79 of 2018.

There is no opposition by the respondents to this application. In view of the averments made in the application, I.A No.4114 of 2018 is allowed.

Acquittal Appeal No.79 of 2018 This acquittal appeal has been filed by Manorama Devi who is the mother of Babli Devi to challenge the judgment of acquittal dated 20 th July 2017 passed in S.T No.374 of 2015 by which her son-in-law has been acquitted of the charge under section 304-B/34 of the Indian Penal Code.

2. Nakul Singh who is the father of Babli Devi gave a written report to the police on 28th May 2015 making a specific allegation of harassment and torture of his daughter at the hands of her husband, father- in-law and mother-in-law, in connection to demand of Rs.3 lakhs and a golden chain. On the basis of his complaint, Dhanbad (Bhuli) PS Case No.549 of 2015 was lodged on 28th May 2015 for causing dowry death of Babli Devi.

3. To prove the charge under section 304-B/34 of the Indian Penal

Code, the prosecution has produced 10 witnesses out of whom Manorama Devi is PW4 but Nakul Singh on whose written report a First Information Report has been lodged was not examined during the trial.

4. Three witnesses have been examined on behalf of the accused to set-up a defence that Babli Devi either committed suicide or has suffered an accidental death.

5. The learned Addl. Sessions Judge-FTC-XVII, Dhanbad has held that there is no evidence on record that soon before her death Babli Devi was subjected to harassment and torture in connection to demand of dowry. The learned trial Judge has further held that the prosecution witnesses have themselves stated in the Court that Babli Devi caught fire while cooking food.

6. The learned trial Judge has appreciated the defence evidence in the following manner:

"22. DW-1 Manish Jaunpuria has proved the certificate issued by his office namely Pushpak Management Services Pvt. Ltd. dated 28.9.2015 which was marked and exhibited as Ext-A. He has stated in his examination-in-chief that he is Director of Pushpak Management Services Pvt. Ltd., its branch was situated in Bankmore Gurudwara Road and this branch was closed in the month of January, 2017. A boy namely Chandra Shekhar Singh was doing work of team leader in this company. He started work in the year 2007 in this company.

23. DW-2 Kanti Patel has proved the attendance register of month of May, 2015, which was marked and exhibited as Ext-B later on it was substituted. He has also proved the pay direct card, which was marked and exhibited as Ext-C. He has also proved the salary statement, which was marked and exhibited as Ext-D. He has stated in his examination-in- chief that he knows about Chandra Shekhar Singh @ Pappu. He was working in his company Pushpak Management Services Pvt. Ltd. Dhanbad as Data Entry of ICICI Bank. He worked till 27th May, 2015. After that he was absent and in register entry of Manish Jaunpuriya has been made who is Director of this company. On 27.5.2015 at 3.15 Pappu Singh proceeded for leave. P.F. of Chandra Shekhar Singh was being deducted and his salary was being paid in the salary pay direct card.

24. DW-3 Jaldhar Singh has stated in his examination-in-chief that he knows about Chandra Shekhar Singh @ Pappu Singh. He was married with Babli Devi in the year 2011. Relation between husband and wife was good. Her marriage took place in temple without dowry. He has not heard any kind of complain in respect of husband and wife. During preparation of food Babli died. Babli died in course of treatment in Bokaro Hospital. On the place of occurrence he reached after burning and she stated with him she burnt in course of preparation of food. No one has set on fire. On the day of incident husband of Babli was on duty. All rites were performed by her husband. he knows about the marriage of Chandra Shekhar @ Pappu because he is neighbour.

32. DW-1 has stated in his cross-examination that Chandra Shekhar Singh is working from May, 2007 till the incident. He was

working after 15 days of the incident. He was stating about the burning of his wife. Leave application was not written, rather oral. I have no register regarding leave. He was on leave for a period of 10 days. Later on he was removed. DW-2 has stated in his cross- examination that he has came to give evidence on the direction of his Director Manish Jaunpuriya. DW-3 has stated in his cross- examination that he does not know when Babli burnt but he reached on the place of occurrence at 2 p.m."

7. In "Ganpat v. State of Haryana, (2010) 12 SCC 59 the Hon'ble Supreme Court has held that there is no limitation on the powers of the appellate Court to review the evidence upon which the order of acquittal is based and to come to its own conclusion. However, a word of caution has been indicated by the Hon'ble Supreme Court to the effect that an order of acquittal can be interfered by the appellate Court only when there are compelling and substantial reasons for doing so.

8. Having examined the materials on record, we do not find sufficient ground to interfere with the judgment of acquittal recorded by the learned trial Judge in S.T No.374 of 2015. While recording this, we have also in our mind that in Ganpat" the Hon'ble Supreme Court has indicated that if the judgment of acquittal is unreasonable then that can be a compelling reason for interference - there is none in the present case.

9. PW10 Dr. Bikas Kumar has tendered evidence in the Court that eyes and mouth of Babli Devi were closed, her tongue was inside and rigor mortis was present. In his cross-examination, the doctor has stated that there was no smell over the dead body and there was no external injury except the burn injuries. He has further stated that such type of burn injuries may be caused during preparation of food.

10. PW10 has found the following injuries on the person of Babli Devi:

(i) General examination - Rigor mortis present, eye & mouth closed, tongue inside.

(ii) External injury - Burn over 95%, scalp hair, all over face, front and back of the neck, front and back of chest both side, all over abdomen, both shoulders and forearm, both thighs and both legs all injuries are ante-mortem in nature.

(iii) On dissection - Skull intact, brain NAD. Hyoid bone intact, trachea larynx congested, heart, right chamber full of blood and left chamber empty, lungs lines, spleen kidneys congested, stomach contains digested food, bladder about 40 ML in urine, uterus small in size.

11. PW10 did not observe any external injuries or damage to hyoid bone, trachea or larynx. PW10 has rendered a specific opinion that the cause

of death was cardio-respiratory failure on account of burn injuries and death of Babli Devi was caused within 24 hrs. of the postmortem examination. Modi in "Textbook of Medical Jurisprudence and Toxicology" (26th edition) writes that in case of homicidal death by strangulation or throttling the eyes and mouth of the victim would be open and the tongue may be protruded. No such post-death characteristic has been observed by PW10 while conducting autopsy over the dead body of Babli Devi.

12. This is also of significance that PW10 has not observed any external injuries or damage to hyoid bone or larynx and trachea.

13. From the aforesaid observations of PW10, it is quite apparent that Babli Devi has not suffered a homicidal death.

14. On appreciation of the materials on record, the learned trial Judge has held as under:

"34. In this case PWs-4, 5, 6 & 7 have not seen the occurrence rather all the witnesses have reached after intimation given by the accused over telephone. PWs-5, 6 & 7 are hearsay witnesses and all the witnesses including PW-4 has stated stereo type that after marriage accused persons were not keeping to the Babli in proper way and they were committing Marpit and the accused and in-laws were demanding Rs.3,00,000/- cash and golden chain as a dowry and due to non-fulfillment of the said demand of dowry they drove out her from the house, but no any witness has stated on which particular date demand of dowry was made with the deceased and Marpit was committed with her and it was continued till her death. After death of deceased accused intimated to the informant and PW-4 over telephone. Further it is material to state here that after lodging the written report by informant Nakul Singh, he died within 10 days of the incident, but he has not given the source from which he has received the information. All the witnesses have stated that informant alongwith other witnesses i.e. PWs-4 to 7 went to the house of the accused after that they all went to PMCH Dhanbad and thereafter they went to BGH, Bokaro. There is major discrepancy in the evidence of informant and PW-4. The prosecution has failed to prove that cash of Rs.3,00,000/- and golden chain was demanded from deceased, as such, in the facts and circumstances of the case the pronouncement of Hon'ble High Court in 2014 (4) AJR 156 is fully applicable. It is admitted fact that the deceased died within 7 years of her marriage and death was otherwise than under normal circumstances. PW-8 who is I.O. of this case has stated in para-5 of his cross-examination that during investigation he has not received any letter or paper regarding demand of dowry or torture before her death. He has further stated in para-6 of his cross-examination that no any witness has stated about setting her on fire and in the same way PW-9 who is I.O, of this case has stated in para-4 of his cross- examination that nothing came in light regarding demand of dowry before the incident and witness Bikash Kumar has stated with him that his sister has set on fire and witness Birendra Singh has stated in his evidence that Babli has set on fire. It is very much clear from Ext-3 written report that it was lodged on 28.5.2015 at 16.30 and Ext-4 inquest report was prepared on 28.5.2015 at 10.50. The

inference could be that investigation has already commenced and subsequent statement could be hit by section 162 of the Cr.PC. as such in the facts and circumstances of the case pronouncement in Hon'ble High Court in 2012 (2) East Criminal Case 726 (Patna) is applicable. It is very much clear from the evidence of all the witnesses those have been examined that no any witness has stated that Babli has stated about the incident with them. On behalf of prosecution it has been stated that Panchayat was held but no any member of Panchayat has been examined on behalf of prosecution to prove that the Panchayat was held and any paper regarding the Panchayat was prepared. The accused has a baby, with the deceased meaning thereby that the relation of the accused with deceased was good, There is no any material that soon before death of the deceased she was subjected to cruelty or harassment by the hands of husband or any relative of the husband, therefore, in the facts-and-circumstances of the case the pronouncement of Hon'ble Supreme Court in 2017 (2) JBCJ 230 Supreme Court is applicable. Since the prosecution has failed to prove its case beyond all reasonable doubts, therefore, I am not taking the evidence of defence in which he has taken the plea of alibi (AIR 2016 Supreme Court 253)."

15. 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 shall be presumed to have committed dowry death. In the context of the offence of dowry death, this is well-remembered that through the Amendment Act, 43 of 1986 this new offence has been incorporated in the Indian Penal Code by inserting section 304-B. Simultaneously, the legislature has incorporated section 113-B in the Indian Evidence Act to raise a presumption of dowry death wherever a woman is shown to have died on account of cruelty or harassment caused to her soon before her death.

16. In "Kamesh Panjiyar v. State of Bihar" (2005) 2 SCC 388 the Hon'ble Supreme Court has held that the expression "soon before her death" needs to be examined in the peculiar facts and circumstances of the case and no strait-jacket formula can be evolved to find with certainty whether the woman was subjected to harassment and torture in connection to demand of dowry soon before her death. The expression "soon before her death" does not mean immediately before the death and what needs to be ascertained is whether there was any live nexus between the death of a married woman and demand of dowry and her harassment and torture at the hands of the accused persons.

17. In "Kamesh Panjiyar" the Hon'ble Supreme Court has

observed as under:

"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."

18. PW1 Gopal Kumar Singh has stated that when he was on duty he received an information that Babli Devi has suffered burns. She was brought to PMCH for treatment and thereafter BGH, Bokaro for better treatment where she died. He denied that any Panchayati was held at her in- laws' house. PW2 Kailash Kumar Gupta is a neighbour of Babli Devi who has deposed in the Court that in course of preparation of food Babli Devi caught fire and later on died. He has stated that his statement was not recorded by the Investigating Officer. PW3 Laxman Singh has stated that the incident took place on 27th May 2015 when on hearing that Babli Devi had caught fire he went to see her and found that she was alive. He has also stated that in course of preparation of food Babli Devi got burn injuries. He has stated that the husband of Babli Devi brought her to PMCH for treatment and then took her to Bokaro Hospital where she died. He has further stated that last rites of Babli Devi was performed by her husband and has denied that Babli Devi had any trouble in her in-laws' house.

19. PW4 Manorama Devi who is the mother of Babli Devi has stated about ill-treatment of her daughter at the hands of her in-laws for

demand of Rs.3 lacs cash and a golden chain as dowry. She has further stated that due to non-fulfillment of demand of dowry in-laws of her daughter drove her out of the house after committing maarpit. She has further stated that demand of dowry was continuing till the death of her daughter in the year 2015. During her cross-examination, she has stated that relation of her daughter with Chandra Shekhar Singh @ Pappu Singh was co-ordial and out of the wedlock her daughter gave birth to a female child who is now living with her father. PW5 Bikas Kumar Singh is the brother of Babli Devi. He has supported PW4 in the Court. He has also alleged harassment of his sister at the hands of her husband and in-laws due to non-fulfillment of demand of dowry. But in the cross-examination, he has stated that relation between her sister with Chandra Shekhar Singh @ Pappu Singh was co-ordial and a female child was born out of their wedlock who is living with her father. He has admitted that his mother told him that the expenses for the treatment of her sister was borne by Chandra Shekhar Singh @ Pappu Singh and he has performed her last rites. PW6 Ranjit Singh who is the maternal uncle and PW7 Birendra Singh who is cousin brother of Babli Devi have deposed in the Court that on an information received by PW4 over telephone that Babli Devi has got burn injuries they along with PW4 and the father of Babli Devi went to her in-laws' house to see her. They have corroborated the statement of PW4 given in the Court about demand of dowry and death of Babli Devi due to non-fulfillment of the said demand. However, in their cross-examination, these witnesses have also stated that the expenses for the treatment of Babli Devi was borne by her husband and in-laws and her last rites was performed by her husband. They have also stated that the female child of Babli Devi is living with her grandfather and grandmother.

20. On the demand of dowry and torture upon the deceased, PW4, PW6 and PW7 have stated that after marriage marpit was committed by her mother-in law, father-in law and husband and they were demanding Rs.3 lacs cash and a gold chain as dowry. They have further stated that on non-fulfillment of demand of dowry, they drove her out of the house and torture was continuing till her death. But none of these witnesses is an eyewitness to the demand of dowry and harassment and torture of Babli Devi at the hands of the accused.

21. It is well-remembered that the law regarding admissibility of hearsay evidence is almost absolute and except under the circumstances as provided under section 6, section 8 and section 32 of the Evidence Act hearsay evidence cannot be looked into to record a finding of guilt against the accused person. Babli Devi is not alive and therefore her statement allegedly made before the related witnesses cannot be tested through cross- examination. Had Babli Devi herself made a statement before the police before her death, that could have been saved under section 32 of the Evidence Act which provides that 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 fact when it relates to cause of death. Furthermore, PW1 has deposed in the Court that Babli Devi caught fire while cooking food in the kitchen. PW2 and PW3 though declared hostile by the prosecution have stated in the Court that while cooking food Babli Devi accidentally caught fire and suffered burn injuries. PW4 who is none else than the appellant has deposed in the Court that her son-in-law got her daughter treated and after her death he has performed her last rites. She has also admitted that her minor grandchild is in the custody of and living with her son-in-law. In our opinion, the prosecution evidence itself probablize the defence version that Babli Devi has suffered an accidental death.

22. Having regard to the aforesaid facts and circumstances in the case, Acquittal Appeal No.79 of 2018 is dismissed.

23. Let a copy of the order be transmitted to the Court concerned.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 1st May 2023 Sudhir/AFR