Jharkhand High Court
Munshi Tudu vs The State Of Jharkhand on 8 February, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 286 of 2012
[Against the judgment of conviction and order of sentence dated 29.08.2011 passed by
learned 2nd Additional Sessions Judge, Godda in Sessions Case No.206 of 2008]
Munshi Tudu .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant
: Mr. Manoj Kumar Sah, Advocate
For the State: Ms. Priya Shrestha, Special P.P.
-----
PRESENT : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
1. The judgment of conviction and sentence under Section 304B of the Indian
Penal Code is under challenge in this appeal.
2. The appellant is the husband and the case of the prosecution as set out in the
fardbeyan of Bihu Lal Soren, the brother of the deceased is that his sister Leena Soren
was married to the appellant in 2007. He used to frequently meet his sister at her
matrimonial home and during those meetings it was informed by her that the appellant
and his brother Babu Ram Tudu used to subject her to cruelty. On 02.05.2008, he
received information that his sister has been done to death by forcibly administering
poison by the appellant and his brother and sister.
3. On the basis of the fardbeyan, Poraiyahat P.S. Case No.77/2008 was registered
under Sections 328, 304B/34 of the Indian Penal Code against the appellant and his
brother Babu Ram Tudu and his sister Angali Tudu @ Balko Tudu.
4. Police, on investigation, found the case true and submitted charge sheet against
named accused persons, and they were put on trial for the offence under Sections
328/34 and 304B of the Indian Penal Code.
5. Altogether six witnesses including the autopsy surgeon were examined.
Thereafter, the statement of the accused persons were recorded under Section 313 of
the Cr.P.C. The defence is of plain denial. The marriage has been denied by the
appellant, but no evidence was led in this regard. The learned trial Court acquitted the
co-accused Angali Tudu @ Balko Tudu and Babu Ram Tudu while convicting the
appellant.
6. The judgment of conviction and sentence has been assailed by the learned
counsel on behalf of appellant on the ground that there is no direct eye witness to
support the allegation that the appellant administered poison to the deceased. Out of
five material witnesses, co-villager P.W. 2- Miru Lal Tudu and P.W. 3-Mohan Tudu
have not at all supported the prosecution case. The Village Pradhan Suleman Kisku,
who has been examined as P.W. 4, has expressed his ignorance about the cause of
death of deceased. The entire prosecution case rest on the testimony of P.W.1-mother
of the deceased and P.W. 5, who is the informant of the case.
7. It is further argued that none of these witnesses are the direct eye witness and
the presumption of dowry has been drawn on sketchy and insufficient evidence of
demand of dowry. There is no whisper in the FIR that there was any dowry demand
and for the first time, P.W. 1 has stated that the appellant had demanded one watch and
cycle as dowry which laid to the dispute. This part of testimony of P.W. 1 is
uncorroborated as the informant has not stated about the demand of either in the FIR or
in his testimony.
8. Learned A.P.P. has defended the judgment of conviction and sentence. It is
submitted that the death took place within seven years of the marriage and the mother
of the informant has specifically stated about the dowry demand therefore, the
presumption of dowry death has been drawn under Section 113-B of the Evidence Act.
8. Having considered the submissions advanced on behalf of both sides, there can
be little doubt that the death was caused due to poison as opined by Doctor (P.W. 6),
who conducted post-mortem over the dead body. Although report of viscera was not
received, but the Doctor stated that all the features suggests poisoning.
9. Law is settled that in the event, dowry demand has been made soon before the
unnatural death of the deceased, the presumption under Section 113-B of the Evidence
Act can be drawn. The necessity to draw the said presumption arise because the
offence is committed within the domestic confines of the household, there can be little
direct evidence in such cases.
It has been held in Supriyo Mandal Vs State of West Bengal, 2023 SCC
OnLine 1387
"The presumption under Section 113B of the Indian Evidence Act, 1872 (for
short 'the Evidence Act') will not come to the rescue of prosecution as the
said presumption can be invoked only when it is proved that the women has
been subjected by the accused to cruelty or harassment for, and in
connection with, the demand for dowry soon before her death. Therefore, the
appellants could not have been convicted with the aid of Section 113B of
the Evidence Act".
10. In the present case, deceased died due to poisoning as per the post-mortem report.
Prosecution case of forcibly administering poison has been disbelieved as the other
accused persons have been acquitted of the charges. Admittedly, there is no direct eye
witness to the incidence of poisoning and therefore, the presumption of dowry death
has been invoked to return conviction under Section 304 B of the IPC.
11. This Court is of the view that the presumption of dowry death cannot be drawn
in the facts and circumstance of the case. Such a presumption can be drawn when there
is evidence regarding dowry demand soon before death of the deceased. FIR is
completely silent to any dowry demand. Furthermore, the informant also does not state
that any dowry demand had been made. The co-villagers, who were examined in this
case, have been declared hostile. In this circumstance, the statement of mother (P.W. 1)
that cycle and watch had been demanded, remains un-corroborated and cannot be
made sole basis for drawing presumption against the appellant.
The judgment of conviction and sentence under Section 304-B cannot be
sustained and is accordingly, set aside.
The appeal is allowed. The appellant is on bail and he shall be discharged from
his liability of bail bond.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated, 8th February, 2024
NAFR/Anit
