Sona Devi @ Piyaso Devi vs The State Of Jharkhand
2024 Latest Caselaw 523 Jhar

Jharkhand High Court

Sona Devi @ Piyaso Devi vs The State Of Jharkhand on 18 January, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                          Cr. (Jail) Appeal No. 896 of 2012

     (Against the judgment of conviction dated 23.06.2012 and order of sentence dated
    09.07.2012 passed by learned 1st Addl. Sessions Judge, Palamau at Daltonganj in S.T.
                                      No. 369 of 2007)
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1. Sona Devi @ Piyaso Devi

2. Gudiya Kumari ... .... Appellants Versus The State of Jharkhand ... .... Respondent

PR ES ENT CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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    For the Appellants     : Ms. Vani Kumari, Amicus Curiae
    For the State          : Mr. P.K. Chatterjee, Spl. P.P.
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By Court :
         Heard the parties

1. This appeal is directed against the judgment of conviction dated 23.06.2012 and order of sentence dated 09.07.2012 passed by learned 1st Addl. Sessions Judge, Palamau at Daltonganj in S.T. No. 369 of 2007, whereby and whereunder, the appellants have been convicted for the offence under Sections 304B and 201/34 of the IPC and sentenced to undergo rigorous imprisonment for seven years under Section 304B of Indian Penal Code and six months under Section 201/34 of Indian Penal Code and to pay a fine of Rs.1000/- each and in default, the appellants have also been sentenced to undergo rigorous imprisonment for three months. All the sentences shall run concurrently.

2. As per the F.I.R. lodged by father of the deceased, his daughter Savita Devi was married with one Sanjay Mali in 2003. It is alleged that after the marriage, her mother-in-law, sister-in-law Guriya Kumari, brother-in-law Guddu Mali and her husband Sanjay Mali started making dowry demand. The informant somehow persuaded his daughter to stay in her matrimonial home, but she was constantly harassed by her in-laws. On 08.09.2006, he received information that his daughter had been murdered and thrown into a pond. On this information, they came to her matrimonial home at village Kishunpur. They found dead body, who was indiscriminately assaulted and killed by her in-laws named above.

3. Palamau Patan P.S. Case No.152/2006 under Sections 304B/201/34 of the IPC was registered on the written report. After investigation, originally charge sheet no.221/2006 was filed against husband-Sanjay Mali on 08.12.2006 and supplementary charge sheet no.121/2007 was against these appellants. The appellants were jointly charged and put on trial.

4. It is submitted by learned Amicus Curiae appearing for the appellants that falsity of the FIR is well demonstrated by the postmortem examination report. As per the FIR, the deceased was assaulted and then she was thrown in the pond. However, from the postmortem examination report, it will be apparent that it was a case of suicide by consuming poison and no external injury was found. The Autopsy Surgeon reserved his opinion regarding the cause of death and Viscera was sent for chemical analysis to Forensic Science Laboratory. The report of Forensic Science Laboratory has been adduced as evidence and marked as Ext.-3, wherein it has been stated that Organo-Cloro-Pesticide was found in the Viscera of the deceased.

5. On the point of dowry demand, the prosecution has come out with shifting and contradictory version. In the FIR it has not been stated that what was the amount of dowry demand made by the in-laws. However, PW-3 has deposed in his examination in chief in para 2 that husband Sanjay Mali used to make demand sometime of Rs.1000/- and sometime of Rs.2000/-. In para 3, a demand of Rs.50,000/- is said to have been made by her husband. In his cross-examination, he has, however, deposed that the accused persons made a demand sometime of Rs.1000/-, 2000/- and sometime of Rs.50,000/-

6. The main argument on behalf of the appellants is that the presumption under Section 113B of the Evidence Act cannot be drawn unless foundational facts are proved by the prosecution. In the present case, the evidence of the postmortem report and the report of FSL suggest that it was a case of suicide by consuming poison. On the dowry demand, in the FIR no specific amount has been mentioned, and witnesses have given conflicting statements regarding the amount that was demanded and from whom the said demand was made.

7. Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that unnatural death took place admittedly within seven years of marriage, and the witnesses have deposed that there was dowry demand. On these materials, presumption of causing dowry death can be drawn, witnesses have rebut the presumption of causing dowry death.

8. Having considered the submissions advanced on behalf of both sides and on combined reading of the testimony of the witnesses, indisputably the death of Savita Devi (deceased) was suicidal in nature. The Autopsy Surgeon did not find any external or internal injury on the dead body and pesticide was found in the decomposed tissues of Viscera. On these materials learned trial Court has rightly

recorded a finding that poison was self consumed and not forcibly administered to the deceased.

9. However, in the absence of any cogent and consistent evidence of dowry demand soon before the death, only on wobbly statement of witnesses the trial Court was drawn a presumption Section 113B of the Evidence Act. In the present case, FIR alleges the dowry demand, but does not state whether it was cash or any article which was demanded by the accused persons. What was the amount that was demanded which has also not been disclosed in the FIR.

10. Altogether eight witnesses have been examined on behalf of the prosecution and as stated by learned Amicus Curiae appearing on behalf of the appellants, there are shifting and contradictory version regarding the said demand. The informant puts sometime Rs.1000/-, Rs.2000/- and sometime Rs.50,000/-. These demands were admittedly not made directly from the informant or his family members but is alleged to have been made from the deceased. From para 3 of the deposition of PW-3, it appears that a demand of Rs.50,000/- was made by the husband of the deceased whereas the present appellants are the mother-in-law and sister-in-law. PW-2 who happened to be the maternal-grand-father of the deceased, has deposed that no amount was demanded from him by the accused persons. PW-5, who happened to be the uncle of the deceased, has deposed in para 4 that a demand of Rs.10,000/- as dowry was made by the husband of the deceased. He has not made any allegation of demand against other in-laws. PW- 6, another uncle of the deceased, states that the demand of Rs.50,000/- was made by the husband and his family members. In para 9 of the cross- examination, he has deposed that he got information regarding the dowry demand from the informant. PW-7 in para 2 of the examination-in-chief has deposed that Rs.50,000/- was demanded by the husband and in-laws, however, in para 5 he states that the said demand was made by the husband. On these contradictory and conflicting evidences regarding dowry demand, this Court is of the view that a presumption under Section 113B of the Evidence Act cannot be drawn. Admittedly, there is no direct eye witness to the incidence and the allegation of assault has been falsified by the postmortem examination report.

11. In view of the gaping hole in the prosecution story with regard to dowry demand and the persons who made the said demand, allegation of dowry demand cannot be accepted. There is no direct or circumstantial evidence to prove the charge of causing dowry death.

Under the circumstance, the appellants are entitled to benefit of doubt. The

judgment of conviction and order of sentence, passed against the appellants, is set aside. Since the appellants are on bail and their conviction has been set aside, they are discharged from the liability of their bail bonds. Criminal Appeal is allowed.

Before parting with this order, I wish to record that I have been ably assisted by learned Amicus Curiae Ms. Vani Kumari. Member Secretary, JHALSA, Ranchi to make payment of the prescribed remuneration to her.

Let a copy of this order be sent to the Member Secretary, JHALSA, Ranchi, for needful.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, the 18th January, 2024 NAFR/ AKT/Satayendra