Jharkhand High Court
Govind Thakur vs The State Of Jharkhand on 1 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.898 of 2018
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(Arising out of judgment of conviction dated 22.05.2018
and order of sentence dated 29.05.2018 passed by Learned
Additional Sessions Judge-II, Spl F.T.C. (C.A.W.), Bermo at
Tenughat, in Sessions Trial No.26 of 2015)
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1. Govind Thakur, son of Shri Bhuneshwar Thakur, resident of
Village Magha, P.O. + P.S. Gomia (Chatrochatti), District
Bokaro, Jharkhand.
2. Daano Devi @ Danwa Devi @ Sunita Devi, wife of Govind
Thakur, resident of Village Magha, P.O. + P.S. Gomia
(Chatrochatti), District Bokaro, Jharkhand.
... ... Appellants
Versus
The State of Jharkhand. ... ... Respondent
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PRESENT : SRI ANANDA SEN
: SRI GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. Santosh Kumar, Advocate
Mr. Sumit Prakash, Advocate
For the State : Mr. Bhola Nath Ojha, Spl. P.P.
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JUDGMENT
By Court, :
01st October, 2024
This Criminal Appeal is preferred on behalf of the
appellants being aggrieved by the judgment of conviction dated
22.05.2018 and order of sentence dated 29.05.2018 passed by
Learned Additional Sessions Judge-II, Spl F.T.C. (C.A.W.), Bermo
at Tenughat, in Sessions Trial No.26 of 2015, whereby and wherein
the appellants have been convicted for offences under Sections
304-B/34 and 498-A/34 of the I.P.C. They were sentenced to
undergo rigorous imprisonment for 10 years under Section 304-
B/34 of the IPC and sentenced to undergo rigorous imprisonment
for 3 years with fine of Rs.5,000/-for the offence under Section
498-A/34 of IPC.
2. Heard learned counsel for the appellants and learned
counsel for the State and perused the material available on record.
3. Learned counsel representing the appellants submits
that none of the ingredients to attract Section 304B of the IPC is
established and proved by the prosecution. The appellant No.1 is
the husband of deceased and appellant No.2 is the first wife of
appellant No.1.
4. It is submitted that the deceased was the second wife
of appellant No.1. The appellant No.1 solemnized marriage with
the deceased on the ground that his first wife i.e. appellant No.2
was unable to bear child from the wedlock. He submits that none
of the witnesses have stated that soon before death there was
demand of dowry and the appellants tortured the deceased for
non-fulfilment of the dowry. In absence of proof of the same, the
appellants cannot be convicted under Section 304B of the IPC.
Learned counsel takes us through the post-mortem report and the
evidence of the Doctor and submits that from the evidence of the
Doctor and also from the post-mortem report, the prosecution
cannot substantiate that the death which had occurred is
otherwise than under normal circumstances.
5. It is further submitted that death was not due to burn
injury or any bodily injury and there is nothing to suggest that the
deceased died otherwise than under normal circumstances. The
Doctor found that the cause of death is pulmonary oedema and
cardiac failure. As per the explanation given by the Doctor,
pulmonary oedema means filling of water in the lungs. The Doctor
also opined that the cardiac arrest can be due to fear of assault or
death also. Injuries were superfluous in nature. Learned counsel
refers to para-11 of deposition of the Doctor where the Doctor
says that the injuries which are present on the body of the
deceased are not sufficient to cause death of anyone.
6. The deceased was the second wife of appellant No.1
during subsistence of the first marriage. The parties are governed
by the Hindu law. Thus, the marriage of appellant No.1 with the
deceased is a void marriage. Thus, neither Section 498A of the IPC
nor Section 304B of the IPC will be attracted in this case. It is
further argued that the questions which were put to the accused
person under Section 313 Cr.P.C. was bad, in as much as,
incriminating circumstances against the appellants which were not
in the evidence against appellant No.2 were also put to her in her
examination under Section 313 Cr.P.C.
7. Alternatively, it is argued that even Section 302 of the
IPC will not be attracted in this case as there is nothing to suggest
that the death was homicidal. He lastly submits that the
circumstances that the appellants were not present at the house
cannot be used against them to come to a conclusion that they
have committed the offence. On this score, he prays for acquittal
of the appellants.
8. Learned Spl. P.P. representing the State submits that
even if the marriage which can be said to be void, but since the
fact which cannot be ignored that the appellant No.1 himself has
admitted that he had married the deceased, the penal provision of
Sections 498A and 304B of the IPC will be attracted. There is
nothing in the Statute to suggest that Section 304B and 498A of
the IPC will be attracted only if there was a valid marriage.
Further, without there being any declaration that the marriage was
void, it cannot be presumed so. In support of his contention, he
refers to the judgment of the Hon'ble Supreme Court rendered in
the case of Koppisetti Subbharao @ Subramaniam Vs. State of
A.P. reported in (2009) 12 SCC 331.
9. It is further submitted that the witnesses have stated
that a Tractor was being demanded by the appellant No.1 which is
in fact a demand for dowry. This demand persisted and on non-
fulfilment of the said demand, the deceased was done to death.
Referring to the medical evidence, he submits that the Doctor
found bruises on the back of the deceased which would suggest
that she was assaulted. He also submits that the prosecution has
been able to prove that the deceased died within 7 years of
marriage. On this ground, he prays that this appeal may be
dismissed.
10. In this case, the F.I.R. is at the instance of Shiv
Shankar Thakur, who is the father of the deceased. He in the
Fardbayan dated 08.08.2014 stated that her daughter aged about
22 years was married to the appellant No.1 about 2 ½ years ago.
At the time of marriage, the appellant No.1 was given one CD
Dawn Motorcycle and Rs.50,000/-. Utensils and other materials
worth Rs.45,000/- were also given at the time of marriage. After
the marriage, the appellant No.1 used to demand a Tractor. The
informant was not in a position to meet the said demand, thus,
the appellant No.1 used to threaten him that he will divorce her
daughter. He also mentioned in the F.I.R. that this appellant No.1
was earlier married to appellant No.2. He further narrated that the
demand and torture started after 3 - 4 months of marriage. Both
the appellant Nos.1 & 2 used to torture her. On 08.08.2014 in the
morning about 04:00 A.M., the Deputy Headman of the village
called him and informed him that his daughter has been
murdered. On receiving the aforesaid information, he went to the
matrimonial house of his daughter and did not find the appellants.
The dead body was lying there. Thus, he came to a conclusion that
the appellants had committed murder of the deceased as the
demand was not fulfilled. The F.I.R. was registered being Gomia
P.S. Case No.108 of 2014 under Section 147/304B of the Indian
Penal Code.
11. The police investigated the matter and filed Charge
Sheet under Section 304B / 34 of the IPC. As the appellants did
not plead their guilt, charges were framed under Section 302,
304B and 498A of the IPC. The appellants were put on trial.
12. To prove the prosecution case, the prosecution has
examined 06 witnesses and some documents were also exhibited.
13. The P.W.-1 namely Ashok Kumar Thakur is the elder
brother of the deceased. He stated that about 4 years ago,
appellant No.1 was married to the deceased and thereafter the
deceased started living in her matrimonial home for 2-3 months.
The Tractor was being demanded by appellant No.1, father of the
appellant No.1, one Bhuneshwar Thakur and others. As the
demand was not fulfilled, the deceased was tortured and
assaulted. On 08.08.2014, he received information that the
deceased has been murdered. They went to the matrimonial house
of the deceased and saw the deceased lying in the cot with blood
dripping from her nose and there were no one present there.
When villagers were not ready to answer their queries, he went to
Police Station and lodged the F.I.R. which was marked as Ext.-1.
He admitted that the deceased was second wife of appellant No.1
and appellant No.2 is the first wife. The marriage was solemnized
because the appellant No.2 did not bear any child. Nothing more
was extracted from his evidence.
P.W.-2 namely Shiv Shankar Thakur is the father of the
deceased, who also stated that 3 - 4 years ago, the marriage had
taken place. 3 - 4 months after the marriage, a Tractor was being
demanded by this appellant No.1. As this informant was financially
poor, they were not in a position to meet the said demand. He
stated that he went to the house of this appellant No.1 and tried
to convince the appellant No.1 and his relatives. He stated that
verbal altercation had taken place amongst her daughter,
appellant No.1 and appellant No.2 and her daughter had also been
assaulted. On 08.08.2014, he received an information about the
death of his daughter and when they went there, they found these
appellants missing. He identified his signature in the Fardbayan
which was marked as Ext.1/1. He stated that after divorce of
appellant No.1 with appellant No.2, the marriage was solemnized
but he does not have any document in proof of the said divorce.
He stated that the appellants and the deceased were residing
together. He could not say name of Village Mukhiya who informed
him about the death.
P.W.-3 namely Smt. Kalawati Devi is the mother of the
deceased. She also stated in the same line as deposed by P.W.-1
and P.W.-2. Rather, she stated that divorce between appellant No.1
and 2 had not taken place. There is no other different statement
which can be taken note of.
P.W.-4 namely Bishwanath Thakur. He stated that
Govind Thakur (appellant) and his first wife both had assaulted the
second wife of this appellant No.1. At night, there was hue and cry
when he came to know that appellant Nos.1 & 2 had assaulted the
deceased. On the next date, he went to the house of this appellant
and saw the dead body and the rest of the rooms were locked and
the appellants were not present there. He stated that as per the
knowledge, the relationship between the deceased and the
appellants was cordial.
P.W.-5 namely Shyam Lal Dongo is the Investigating
Officer, who investigated the crime. He stated that the Fardbayan
was identified by him and was signed by him also. The entire
Fardbayan was marked as Ext.1/2. He drew of the formal F.I.R.
under Section 147 and 304B IPC which was marked as Ext.2. He
recorded the statement of the informant and other witnesses. He
inspected the place of occurrence and found the dead body of the
deceased. There were two rooms in the house and he gave the
details of the boundary of the house. He obtained the post-
mortem report and finding the case to be true, submitted charge
sheet under Section 304B / 34 of the IPC. Nothing much was
extracted from his cross-examination.
P.W.-6 namely Dr. Nirose Jojo, who has conducted the
post-mortem on the body of the deceased. The Doctor found
bleeding from the nose. Externally, he found a cut injury present
in the lower lip, multiple bruises present in the back and abrasion
on forehead being 4" x 2" X skin, which suggest that it is merely a
skin abrasion. Internally, he found fluid in the lungs and the lungs
were swollen and was frothy with fibrosis in some part of the
lungs. The brain was congested and brain membrane contained
haemorrhagic spots. Though, he mentioned that all the injuries
are ante-mortem in nature but the Doctor opined that the cause of
death is due to pulmonary oedema and cardiac failure. He
explained that pulmonary oedema means filing of water in the
lungs. He also stated that cardiac arrest may be possible due to
sudden incident like some accident and also stated that due to fear
of assault or death, there can be cardiac failure. In para-11, he
categorically stated that in ordinary course, the injuries which
were found on the body are not sufficient to cause death of any
person.
14. In this case, the appellants have been convicted for
committing offence under Section 304B of the IPC. Section 304B is
quoted herein below:-
―304B. Dowry death.- 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.‖
15. In order to convict an accused for offences punishable
under Section 304 IPC, the following essential ingredients needs to
be satisfied at the first instance, which reads as follows:-
i. the death of a woman must have been caused by
burns or bodily injury or otherwise than under
normal circumstances;
ii. such death must have occurred within seven years
of her marriage;
iii. soon before her death, the woman must have been
subjected to cruelty or harassment by her husband
or any relatives of her husband;
iv. such cruelty or harassment must be for, or in
connection with, demand for dowry.‖
16. When the above ingredients are established by cogent
evidence, such death is called a dowry death and husband and
relatives are deemed to have caused such death. If the
aforementioned ingredients are attracted, in view of the special
provision, the Court shall presume and shall record such fact and
proof unless and until it is disputed by the accused. It is open for
the accused to adduce evidence for disputing such conclusive
presumption as the burden is unmistakably upon him and he can
discharge such burden by getting an answer through cross-
examination of the prosecution witnesses or by adducing the
evidence.
17. Section 113B of The Indian Evidence Act, 1872 also
speaks about presumption of dowry death. Section 113B of The
Indian Evidence Act, reads as follows:-
―[113B. 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 304B of the Indian Penal Code (45 of 1860).]‖
It is well established that at first the prosecution has to
prove the basic ingredients of Section 304B IPC. If they are
successful, then only the burden shifts upon the accused persons.
Reference is made to the judgment passed in the case of Maya
Devi & Anr. Vs. State of Haryana reported in (2015) 7 SCC 403.
Considering the aforesaid proposition of law, now let us consider
the evidence and see as to whether the prosecution has able to
prove the ingredients of Section 304B of the IPC or not.
18. Before dealing with the ingredients, first let us deal
with one of the objection raised by the appellants. Their case is
that since the deceased was the second wife and the marriage had
taken place during the subsistence of the first marriage, as per the
Hindu law the said marriage is void. Thus, there cannot be any
application of Section 304B IPC or Section 498A IPC. This point
raised by the appellants has already been answered by the Hon'ble
Supreme Court of India rendered in the case of Koppisetti
Subbharao @ Subramaniam Vs. State of A.P. reported in (2009)
12 SCC 331. In the aforesaid judgment, the Hon'ble Supreme
Court in para-8 has held as follows:-
―8...................................
18. The concept of ‗dowry' is intermittently linked
with a marriage and the provisions of the Dowry Act
apply in relation to marriages. If the legality of the
marriage itself is an issue, further legalistic problems
do arise. If the validity of the marriage itself is under
legal scrutiny, the demand of dowry in respect of an
invalid marriage would be legally not recognisable.
Even then the purpose for which Sections 498-A and
304-B IPC and Section 113-B of the Evidence Act,
1872 (for short ‗the Evidence Act') were introduced,
cannot be lost sight of. Legislation enacted with some
policy to curb and alleviate some public evil rampant
in society and effectuate a definite public purpose or
benefit positively requires to be interpreted with a
certain element of realism too and not merely
pedantically or hypertechnically. The obvious
objective was to prevent harassment to a woman who
enters into a marital relationship with a person and
later on, becomes a victim of the greed for money.
Can a person who enters into a marital arrangement
be allowed to take shelter behind a smokescreen to
contend that since there was no valid marriage, the
question of dowry does not arise? Such legalistic
niceties would destroy the purpose of the provisions.
Such hair-splitting legalistic approach would
encourage harassment to a woman over demand of
money. The nomenclature ‗dowry' does not have any
magic charm written over it. It is just a label given to
demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is
not only the husband but also his relations who are
covered by Section 498-A. The legislature has taken
care of children born from invalid marriages. Section
16 of the Marriage Act deals with legitimacy of
children of void and voidable marriages. Can it be
said that the legislature which was conscious of the
social stigma attached to children of void and
voidable marriages closed its eyes to the plight of a
woman who unknowingly or unconscious of the legal
consequences entered into the marital relationship. If
such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be
against the concern shown by the legislature for
avoiding harassment to a woman over demand of
money in relation to marriages. The First Exception to
Section 494 has also some relevance. According to it,
the offence of bigamy will not apply to ‗any person
whose marriage with such husband or wife has been
declared void by a court of competent jurisdiction'. It
would be appropriate to construe the expression
‗husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed
or feigned status of husband subjects the woman
concerned to cruelty or coerces her in any manner or
for any of the purposes enumerated in the relevant
provisions--Sections 304-B/498-A, whatever be the
legitimacy of the marriage itself for the limited
purpose of Sections 498-A and 304-B IPC. Such an
interpretation, known and recognised as purposive
construction has to come into play in a case of this
nature. The absence of a definition of ‗husband' to
specifically include such persons who contract
marriages ostensibly and cohabit with such woman, in
the purported exercise of their role and status as
‗husband' is no ground to exclude them from the
purview of Section 304-B or 498-A IPC, viewed in the
context of the very object and aim of the legislations
introducing those provisions...................................
Thus, from the aforesaid observation of the Hon'ble
Supreme Court, we are of the view that the appellant No.1 in this
case can be prosecuted for committing offence punishable under
Section 498A IPC and also Section 304B even if his first marriage
has not been dissolved. The evidence of the father, mother and the
brother of the deceased clearly suggest that the marriage of this
appellant No.1 with the deceased had taken place 2 ½ years ago
from the death of deceased. Further, from the evidence, it is also
quite clear that there is no allegation attributed to appellant No.2
that she demanded any material by way of dowry. There is no
contrary evidence laid by the defence nor they had denied the
aforesaid fact, thus, the prosecution has proved that the death of
the deceased had occurred 2 ½ years of marriage. So far as the
evidence on the point that dowry was demanded soon before
death and there was torture for non-payment of dowry is
concerned, we find that both the father, mother and brother of
the deceased stated that the demand was made after six months
of the marriage. This period after six months will be two years
prior to the date because they stated that the marriage had taken
place 2 ½ years before the death had taken place. There is
nothing to suggest that during this intervening period i.e. before
the death and 3 months after the first demand was made, there
was any persisting demand. All these witnesses have stated about
the demand of Tractor made by this appellant No.1 that too, after
3 to 4 months after the marriage. There is no evidence led by the
prosecution to suggest that soon before death there was any
demand of dowry. There is also no evidence to suggest that soon
before death there was torture or harassment of the deceased.
19. Thus, we hold that the prosecution has not been able to
prove that soon before death, the appellants have demanded
dowry or had tortured the deceased for non-payment of the same.
The prosecution has also to prove that the death had occurred in
an unnatural circumstances, either by burn or bodily injury or
otherwise than under normal circumstances. Admittedly, it is no
one's case that the deceased died of a burn injury. From the post-
mortem report, we find that there was some bodily injury i.e. cut
on the lips and skin abrasion on the forehead and a mark of
assault on the back but the Doctor who conducted the post-
mortem categorically stated that these injuries cannot be the
cause of death and no person can die by these injuries. Thus, it is
clear that the death has not been caused because of any bodily
injury. The Doctor had stated that the death is caused due to
pulmonary oedema and cardiac failure. The pulmonary oedema
means the lungs are filled with water. The Doctor also found that
lungs was filled with fluid and there was fibrosis in the lungs. Thus,
the cause of death has been substantiated i.e. by cardiac failure
and pulmonary oedema. This death can happen in normal course
also. We thus, hold that the prosecution has not been able to
prove that either the death was by burn or by bodily injury or
otherwise than under normal circumstances.
20. From what has been held above, we find that out of
these four ingredients which have to be proved simultaneously by
the prosecution, they have failed to establish at least three of
them. Since they have failed to prove the circumstances, the onus
will not shift upon the defence to prove their innocence. So far as
the ground of abscondance of the appellants is concerned, we find
that the same cannot be taken as a circumstance against the
appellants as the case is under Section 304B IPC, where the
prosecution first has to prove all the ingredients as mentioned in
the aforesaid Section. Further so far as the alternative charge
under Section 302 IPC is concerned, we find that the prosecution
has also not been able to prove the same as we have already
observed that the defence has been able to create a doubt about
the unnatural death. As per them, the death is natural and we also
feel that there is probability that the death is natural in view of the
post-mortem report.
21. Considering what has been held above, we find that the
appellants have made out a good case for acquittal. Accordingly,
this Criminal Appeal stands allowed. The impugned judgment of
conviction dated 22.05.2018 and order of sentence dated
29.05.2018 passed by Learned Additional Sessions Judge-II, Spl
F.T.C. (C.A.W.), Bermo at Tenughat, in Sessions Trial No.26 of
2015, are hereby set aside. The appellants are acquitted of the
charges.
22. It has been submitted during the course of argument
that the appellant No.1 has already served the sentence and he
has been released from custody, thus, it is not necessary to pass
any order for his fresh release and further it has been submitted
that the appellant No.2 is on bail. Thus, she is discharged from the
liabilities of the bail bond, so are the bailers.
23. Trial Court Record be transmitted back to the Court
concerned.
24. Pending I.A. if any, stands disposed of.
(ANANDA SEN, J.)
(SRI GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 01/10/2024
AFR / Prashant
