Rabindra Kumar @ Pinku vs The State Of Jharkhand
2024 Latest Caselaw 10197 Jhar

Jharkhand High Court

Rabindra Kumar @ Pinku vs The State Of Jharkhand on 28 October, 2024

Author: Ananda Sen

Bench: Ananda Sen

                          Criminal Appeal (D.B.) No. 670 of 2002
            Rabindra Kumar @ Pinku, S/o Sri Sita Ram Sao (Barnwal), R/o Village
            Khesmi, New Market, PS Topchanchi, District Dhanbad
                                         ...                 ...    Appellant
                                         -Versus-
            The State of Jharkhand       ...                 ...    Respondent
                                      With
                          Criminal Appeal (S.J.) No. 689 of 2002
            Mandeshwari Devi, W/o Sri Sita Ram Sao, R/o Village Khesmi, New
            Market, PS Topchanchi, District Dhanbad
                                           ...                ...    Appellant
                                           -Versus-
            State of Jharkhand             ...                ...    Respondent

            (Arising out of Judgment of Conviction dated 19.09.2002 and Order of
            Sentence dated 21.09.2002 passed by the Additional Sessions Judge-V,
            Dhanbad in Sessions Trial No. 312 of 1996)
                                           ----
            For the Appellants : M/s Atanu Banerjee & Naresh Pd. Thakur, Advocates
            For the State      : Ms. Nehala Sharmin, Spl.P.P.
                                           ----

            PRESENT:             SRI ANANDA SEN, J.
                           SRI GAUTAM KUMAR CHOUDHARY, J.
                                       ----

                                    JUDGMENT

Dated : 28.10.2024 By Court:

Heard the parties.

Since both the criminal appeals arise out of the same judgment, therefore, they are heard together and are being disposed of by this common Judgment.

1. Both the appellants have preferred these appeals against the Judgment of Conviction dated 19.09.2002 and Order of Sentence dated 21.09.2002 passed by the Additional Sessions Judge-V, Dhanbad in Sessions Trial No. 312 of 1996, whereby the appellants have been held guilty and convicted for the offence punishable under Section 498A, 304B of Indian Penal Code and Sections 3/ 4 of Dowry Prohibition Act and appellant-Rabindra Kumar @ Pinku has been sentenced to undergo rigorous imprisonment for ten years under Section 304B of IPC, three years rigorous imprisonment with a fine of

Rs.5000/- under Section 498A of IPC, two years rigorous imprisonment under Section 3 of D.P. Act and six months rigorous imprisonment under Section 4 of D.P. Act. Further, appellant- Mandeshwari Devi has been sentenced to undergo rigorous imprisonment for seven years under Section 304B of IPC, one year rigorous imprisonment under Section 498A of IPC, one year rigorous imprisonment under Section 3 of D.P. Act and six months rigorous imprisonment under Section 4 of D.P. Act. All the sentences were ordered to run concurrently.

2. Mr. Atanu Banerjee, learned counsel for the appellants in both appeals, submits that there is no material to convict the appellants for committing offence under Section 304B of IPC. It is argued that the prosecution has failed to prove the fundamental ingredient of the offence that the death, was caused otherwise than in normal circumstances or by burn injury. He further submits that there is no evidence to suggest that the deceased was ever tortured mentally or physically which can attract Section 498A of IPC.

3. Learned counsel for the State has defended the impugned judgment of conviction and order of sentence. She submits that within seven years of marriage, death had occurred and the death is unnatural that too in the house of these appellants. There is allegation that there was demand for dowry and the deceased was being harassed in view of said demand. Thus, all the ingredients of Section 304B of IPC have been established by the prosecution. The accused persons have failed to discharge their onus under Section 113B of the Evidence Act. Thus, there is legal presumption against these appellants that they had committed dowry death.

4. After hearing the parties, we have gone through the judgment, documents, records and exhibits. As per the F.I.R (Ext-1), the informant, who is none but the father of the deceased, had stated that there was a demand of Rs.20,000/-

from the side of these appellants by way of dowry. The marriage between the deceased and appellant-Ravindra Kumar @ Pinku was solemnized on 09.12.1993. They received information that the deceased was done to death on 13.03.1996.

5. On the basis of written report, Topchanchi P.S. Case No. 32 of 1996 was registered under Sections 304B of IPC.

6. Police after investigation filed charge sheet against these appellants under Section 304B and charge was framed under Sections 304B, 498A of IPC and Sections 3/ 4 of D.P. Act and they were put on trial.

7. The prosecution in order to prove the case has examined 7 witnesses. The documents were also exhibited on behalf of the defence and the defence has also examined two witnesses to prove that the deceased did not die an unnatural death and there was no demand for dowry and there was no torture.

8. After hearing the parties and going through the record, the Trial Court convicted the appellants under Sections 304B, 498A of IPC and Sections 3/ 4 of D.P. Act and sentenced as aforesaid.

9. At the outset it shall be desirable to extract Section 304B of IPC for better appreciation which reads 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 purposes 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.

10.To bring home charge under Section 304B of IPC, the prosecution has first to prove three facts which are:

i. death within seven years of marriage;

11. death is otherwise than in normal circumstances or caused due to burn or by any other injury; and iii. soon before the death, there was demand and torture which is related to dowry.

11.The prosecution in order to prove the death of the deceased has examined the doctor and has exhibited the postmortem report. The doctor who conducted the postmortem is P.W.6. The doctor stated that he did not found any external or internal wounds upon the dead body of the deceased. He further stated that some brownish fluid with no particular smell was found in the stomach. The viscera were preserved. From his evidence, it is clear that he did not opine as to

how the deceased died. Admittedly, this is not a case of burn injury. Since the viscera were preserved, we have gone through the F.S.L report which is Ext.-5. As per the viscera report, the dark brown fluid could be decomposed tissue of viscera. It was further found that metallic, alkaloidal, glycosidal, pesticidal or volatile poison could not be detected in the dark brown fluid. Thus, it is clear that it is not a case of poisoning. From the evidence, we find that the prosecution has not been able to prove that the deceased died an unnatural death.

12.It is settled the principle of law that all the three ingredients of Section 304B of IPC have to be simultaneously established by the prosecution. On failure to establish any one of them the presumption under Section 113B of the Evidence Acts cannot be drawn against the accused. In this case, since the prosecution has not been able to prove the homicidal death or the death had caused otherwise than normal circumstances, conviction of these appellants under Section 304B of IPC is bad and cannot be sustained. Thus, they are acquitted of the charge under Section 304B of IPC.

13.So far as Section 498A of IPC and the demand of dowry are concerned, we find that PWs. 1 and 2 have stated that there was demand of dowry and even PW 5 has submitted that there was demand of Rs.20,000/-. PW 1 had stated that the deceased was tortured. Cumulative effect of these evidences is sufficient to prove the offence under Section 498A of IPC. Thus, we find that the conviction of the appellants under Section 498A of IPC cannot be doubted and hence the same is affirmed.

14.So far as the sentence is concerned, since the occurrence had taken place sometime in the year 1996 and nearly 29 years have elapsed and since the appellant- Rabindra Kumar @ Pinku has remained in custody for about two years, four months and thirteen days and appellant- Mandeshwari Devi has remained in custody for about eleven months and eleven days. Considering the age of lady, who is nearly 87 years today and also that of appellant- Rabindra Kumar @ Pinku, we reduce the sentence to the period which they have already undergone.

Both these Criminal Appeals are allowed in part by acquitting the appellants under Section 304B of IPC and modifying the sentence under Section 498A of IPC and Section 4 of D.P. Act to the period which they have

already undergone. Charge under Section 3 of D.P. Act fails and the conviction and sentence under it is set aside.

Since both the appellants are already on bail, they are discharged from the liabilities of the bail bonds and so are the bailors.

Pending I.A., if any, stands disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.

(Ananda Sen, J.)

(Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 28th October, 2024 AKT/Satendra