Jharkhand High Court
Against The Judgment Of Conviction And ... vs The State Of Jharkhand on 18 January, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Ambuj Nath
Cr. Appeal (DB) No.774 of 2019
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.774 of 2019
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[Against the judgment of conviction and order of sentence dated
17.06.2019 (sentence passed on 24.06.2019) in connection with Sessions
Trial Case No.225/2014, arising out of Barkatha P.S. Case No.32/2011,
corresponding to G.R. Case No.765/2011, passed by Sri Ramesh Kumar,
learned Additional Sessions Judge-I, Hazaribag]
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Suresh Prasad ... Appellant
-Versus-
The State of Jharkhand ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. Anil Kumar Jha, Advocate
For the State : Mr. Manoj Kumar Mishra, Addl.P.P
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C.A.V. On : 03/01/2024 Pronounced On: 18/01/2024
Ambuj Nath, J. Heard the parties.
The appellant Suresh Prasad has filed this appeal against the
judgment of conviction and order of sentence dated 17.06.2019 (sentence
passed on 24.06.2019) in connection with Sessions Trial Case
No.225/2014, arising out of Barkatha P.S. Case No.32/2011,
corresponding to G.R. Case No.765/2011, passed by Sri Ramesh Kumar,
learned Additional Sessions Judge-I, Hazaribag, holding the appellant
guilty of offence under Section 304-B of the Indian Penal Code and
thereby, sentencing him to undergo rigorous imprisonment for life along-
with fine of Rs.10,000/- and in default of payment of fine, he was
further directed to undergo rigorous imprisonment for one year.
The prosecution case was instituted on the basis of written report of
the informant Dwarika Mahto, alleging therein that his daughter Lakhiya
Devi was married to the appellant one year ago as per Hindu rites and
customs. After five months from the date of marriage, the appellant
along-with his family members started torturing her to enforce the
demand of a color television and a motorcycle and on 24.03.2011, she
was found murdered in her matrimonial home.
After investigation, the police found the occurrence to be true and
submitted the chargesheet against the appellant under Section 304-B of
the Indian Penal Code. The cognizance of the case was taken by the
learned Chief Judicial Magistrate, Hazaribag under the aforesaid Section.
The case was committed to the court of learned Sessions Judge by
Smt. Garima Mishra, learned Judicial Magistrate, First Class, Hazaribag
on 17.05.2014, as it was exclusively triable by the Sessions Court.
The charge was framed against the appellant on 26.05.2015 under
Section 304-B of the Indian Penal Code. The contents of the charge was
read over and explained to him in Hindi, to which, he pleaded not guilty
and claim to be tried.
In order to prove its case, the prosecution has adduced both oral
and documentary evidence.
Dr. Rajesh Kumar Gupta P.W.1 is the doctor, who had performed
the postmortem of the deceased Lakhiya Devi. He has proved the
postmortem report, which is Exhibit-1.
Niwas Singh P.W.2 is the Investigating Officer of this case. He has
proved the formal F.I.R which is Exhibit-3. He has also proved the
inquest report, which is Exhibit-4. He has proved the place of occurrence
which is the matrimonial home of the deceased and house of the
appellant.
Janki Devi P.W.3 is the mother of the deceased. She has supported
the prosecution case.
Dwarika Mahto P.W.4 is the informant of this case. He has also
supported the prosecution case. He has proved the written report, which is
Exhibit-2/1.
The statement of the appellant was recorded under Section 313 of
the Cr.P.C. The defence is general denial of occurrence and false
implication.
On the basis of the evidence available on record, learned Trial
Court held the appellant guilty of offence under Section 304-B of the
Indian Penal Code and sentenced him accordingly.
Mr. Anil Kumar Jha, learned counsel for the appellant has
submitted that there is no eyewitness to the occurrence and the
prosecution has failed to prove its case against the appellant under
Section 304-B of the Indian Penal Code. He has relied upon the judgment
of the Hon'ble Apex Court, rendered in the case of State of Madhya
Pradesh Vs. Jogendra & Another, reported in (2022) 5 SCC 401. On this
ground, it was prayed that this appeal be allowed and the appellant be
acquitted of the charge.
Mr. Manoj Kumar Mishra, learned A.P.P on behalf of the State has
submitted that the deceased died within one year of the marriage in her
matrimonial home in an unnatural circumstances. He has further
submitted that the appellant used to demand dowry and to enforce the
demand, deceased was tortured. He has finally submitted that the
appellant has failed to discharge his burden under Section 106 of the
Indian Evidence Act and as such, this appeal be dismissed.
Now, it has to be ascertained whether the prosecution has been able
to prove its case against the appellant beyond all reasonable doubts.
In order to come to the aforesaid finding, it has to be further
ascertained :
Whether the appellant died within seven years of marriage ?
Whether her death was an unnatural death ?
Whether there was demand of dowry, coupled with torture to
enforce the demand just before the occurrence ?, and
If the aforesaid facts are proved then it has to be finally ascertained
whether the appellant has discharged his burden as imposed under
Section 106 of the Indian Evidence Act.
Janki Devi P.W.3 is the mother of the deceased. She has stated that
her daughter Lakhiya Devi was married to the appellant seven years ago
as per Hindu rites and customs. After marriage, she started residing at her
matrimonial home. After five months of marriage, the accused persons
started demanding motorcycle and color television. She has further stated
that after ten months of marriage, her daughter was murdered in her
matrimonial home. The accused persons did not inform them about her
death. She has further stated that on the next day, when she came to know
about the occurrence, she along-with others went to the matrimonial
home of her daughter and found her dead body, lying on a cot. The
accused persons had fled away after locking their house.
She has been cross-examined at length. In her cross-examination,
she has stated that her daughter used to reside in her matrimonial home.
Suggestion has been given that the deceased was suffering from epilepsy,
which she has denied.
Dwarika Mahto P.W.4 is the informant of the case. He has stated
that his daughter Lakhiya Devi was married to the appellant in the year
2010. After marriage, the appellant used to demand a motorcycle and T.V
and to enforce the demand, she was tortured. His daughter used to convey
that she wanted to commit suicide. Few days after Holi, he came to know
that his daughter had died, on which, he went to her matrimonial home
and saw her dead body, lying in the courtyard on a cot. There was sign of
strangulation on her body. In his cross-examination, he has stated that his
daughter informed him about the demand of dowry. He has denied that
his daughter was having illicit relationship with one Kishore Pandit.
From the oral testimony of both these witnesses, it is apparent that
the marriage of the deceased Lakhiya Devi was solemnized with the
appellant. It further appears that she died within a year of her marriage.
They also stated that the appellant used to demand a motorcycle and color
television and to enforce the demand, she was tortured.
Both these witnesses have stated that the deceased Lakhiya Devi
was strangulated to death. Her dead body was lying in her matrimonial
home on a cot and the appellant and other family members had fled away
from there.
Dr. Rajesh Kumar Gupta P.W.1 has performed the postmortem on
the dead body of the deceased Lakhiya Devi. He has stated that on the
postmortem of the deceased Lakhiya Devi, he found the following
injuries :-
Larynx- Some haematoma on back of larynx, more on right size
1 ½" x 3/4". Wall Congested.
Nature of Injuries -Ante-Mortem, grievous and possible for
death in due course. Injury was due to compression over neck
as in smothering.
Internal findings-Brain and spinal cord congested, larynx-wall
congested, Haematoma right back of larynx, Lungs-Bilateral
congested. Heart-Blood right chamber, Stomach-Wall
congested, content - mucoid fluid dirty looking, pungent
smelling approximately four ounces, small intestine, large
intestine, liver, spleen, kidney all congested.
According to this witness, the cause of death of the deceased was
Asphyxia due to smothering over neck. He has proved the postmortem
report, which is Exhibit-1. On perusal of the postmortem report (Exhibit-
1), it transpires that the findings of Dr. Rajesh Kumar Gupta (P.W.1) in
the postmortem report regarding injuries sustained by the deceased
Lakhiya Devi and the cause of her death fully corroborates his oral
testimony, recorded during the trial.
From the aforesaid oral and documentary evidence, it transpires
that the deceased Lakhiya Devi died because of Ashpysia due to
smothering. It is apparent that the deceased Lakhiya Devi died homicidal
death. Both Janki Devi P.W.3 and Dwarika Mahto P.W.4 have stated that
when they came to know about the death of the deceased, they went to
her matrimonial home and found her dead body, lying on a cot and the
appellant and other family members after locking the house had fled
away.
Niwas Singh P.W.2 is an Investigating Officer of the case, who has
proved the place of occurrence. He has stated that the place of occurrence
is the house of the appellant Suresh Prasad, situated in Village-Turkbad,
Barkatha, Hazaribag. He has given the boundary of the place of
occurrence. In his cross-examination, he has stated that he had inspected
the place of occurrence on the same day at about 12:30 noon.
From the aforesaid oral and documentary evidence, it is apparent
that the prosecution has been able to show that the deceased Lakhiya
Devi was married to the appellant Suresh Prasad about one year prior to
her homicidal death. The prosecution has also been able to show that the
appellant used to demand a motorcycle and color television and to
enforce the demand, the deceased was tortured. The prosecution has
further been able to prove that the deceased died homicidal death in her
matrimonial home.
Once the aforesaid facts have been proved, Section 113-B of the
Indian Evidence Act, 1872 comes into play.
Section 113-B of the Indian Evidence Act deals with presumption
as to dowry death, which reads as under :-
113-B. Presumption as to dowry death- "When the question is
whether a person has committed the dowry death of a woman and it is
shown that soon before her death such woman had been subjected by
such person to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such person had
caused the dowry death.
Explanation-For the purposes of this section, "dowry death", shall
have the same meaning as in section 304-B of the Indian Penal Code
(45 of 1860)."
The provision of Section 113-B of the Indian Evidence Act, 1872
manifests the intention of legislature making mandatory application on
the part of the Court to presume that death has been committed by a
person who had subjected her to cruelty and harassment in connection
with demand of dowry. Once the basic ingredient of Section 304-B of the
Indian Penal Code is proved by the prosecution then the Court will
presume the guilt of the accused. At this stage, the burden shift upon the
accused as per the provision of Section 106 of the Indian Evidence Act to
rebut this presumption of guilt and to prove his innocence.
Statement of the appellant was recorded under Section 313 of the
Cr.P.C. Apart from stating that he had not demanded dowry nor he had
committed the murder of the deceased, he has not brought any material
on record to rebut the basic presumption of his guilt and to prove his
innocence. The fact that the appellant and his family members fled away
from the place of occurrence, leaving behind the dead body of the
deceased, further weighs the scale of evidence against the appellant.
From the aforesaid facts and circumstances, it transpires that the
prosecution has successfully proved its case against the appellant under
Section 304-B of the Indian Penal Code and the appellant has failed to
discharge his burden as envisaged under Section 106 of the Indian
Evidence Act.
Accordingly, we come to the finding that the learned Trial Court
has rightly held the appellant guilty for the offence under Section 304-B
of the Indian Penal Code.
From perusal of the record, it transpires that the appellant is in
custody since 06.12.2012, i.e., he has remained in custody for about
eleven years. The offence under Section 304-B of the Indian Penal Code
is punishable for the period between seven years to imprisonment for life.
Learned Trial Court has imposed the maximum sentence on the appellant
without discussing the mitigating and aggravating circumstances against
him. Considering the entire facts of this case and the period of custody
undergone by the appellant, the sentence imposed by the learned Trial
Court directing the appellant to undergo imprisonment for life along-with
a fine of Rs.10,000/- and in default of payment of fine, to further directed
to undergo R.I for one year is hereby, set aside.
The appellant is sentenced to period already undergone by him
during the trial and during the pendency of this appeal. The appellant
shall pay the fine amount as directed by the learned Trial Court, failing
which, he shall further undergo simple imprisonment for two months.
Accordingly, this appeal is partly allowed with modification of
sentence.
Pending I.A, if any, also stands disposed of.
(Ratnaker Bhengra, J.)
(Ambuj Nath, J.)
Jharkhand High Court, Ranchi
Dated : 18/01/2024
N.A.F.R./BS
