Nandlal Keshri vs The State Of Jharkhand
2024 Latest Caselaw 9759 Jhar

Jharkhand High Court

Nandlal Keshri 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.498 of 2018
                                    -----
          (Against the judgment of conviction dated 18.03.2017 and order of sentence
          dated 21.03.2017 passed by learned Additional Sessions Judge-III, West
          Singhbhum at Chaibasa in Sessions Trial No. 172 of 2013)
                                         ----
          Nandlal Keshri, aged about 30 years, son of late Baidyanath Keshri,
          resident of village Raghunathpur-Pokhariya, PO and PS Jhinkpani,
          District West Singhbhum                            ... Appellant(s).
                                  Versus
          The State of Jharkhand                               ... Respondent(s).
                                        ------
                                     PRESENT
                               SRI ANANDA SEN, J.
                      SRI GAUTAM KUMAR CHOUDHARY, J.
                                      ------
          For the Appellant(s)     : Mr. Anjani Kumar, Advocate
          For the Respondent(s) : Mr. Bhola Nath Ojha, Spl. PP
                                     .........

                                JUDGMENT

01st October 2024

Per Ananda Sen, J.: We have heard the learned counsel appearing for the

appellant and the learned counsel for the State at length.

2. This Criminal Appeal arises out of the judgment of conviction dated 18.03.2017 and order of sentence dated 21.03.2017 passed in Sessions Trial No. 172 of 2013 whereby and whereunder learned Additional Sessions Judge-III, West Singhbhum at Chaibasa convicted the appellant under section 304B of the Indian Penal Code and sentenced him to undergo imprisonment for life.

3. By the impugned judgment the appellant who is the husband of the deceased has been convicted for committing offence punishable under section 304B of the Indian Penal Code. The trial Court had framed charge under section 304B of the Indian Penal Code and also under section 302 of the Indian Penal Code but by the impugned judgment appellant has been acquitted of the charge under section 302 of the Indian Penal Code and the conviction is only in respect of section 304B of the Indian Penal Code.

4. FIR is at the instance of PW3 who is brother of the deceased who stated that the deceased was married with this appellant sometime in June 2008. Initially she resided happily with this appellant in her matrimonial home but thereafter demand of Rs. 20,000/- and a motorcycle was made for which she was tortured and harassed. On 22.12.2012 he received an information that his sister has been burnt to death in her matrimonial home.

5. On the basis of the aforesaid fardbeyan, Jhinkpani PS Case No. 38 of 2012 was registered under section 304B of the Indian Penal Code against the appellant.

6. After investigation, the Investigating Officer submitted chargesheet against the appellant for the offence punishable under Section 304B of the Indian Penal. On the basis of chargesheet and material on record cognizance was taken and the case was committed to the Court of Sessions where the trial Court initially framed charge under section 304B of the Indian Penal Code but thereafter amended the charge and added section 302 of the Indian Penal Code also.

7. To prove the prosecution case, altogether 8 witnesses were examined by the prosecution, who are :-

i. PW1 :- Bagun Keshri ii. PW2 :- Jema Keshri iii. PW3 :- Suresh Patro (informant) iv. PW4 :- Dr. Vinod Kumar Pandit v. PW5 :- Chaturgun Oraon, I.O.

vi. PW6 :- Suru Patro (Mother) vii. PW7 :- Sidheswar Keshri viii. PW8:- Udhishthir Mahto, ASI

8. Some documents were exhibited which are :

i. Ext.1 - Signature of informant namely Suresh Patro on fardbeyan.

       ii.     Ext.1/1 - Fardbeyan registration.
       iii.    Ext. 1/ 2 -Signature of Bhola on fardbeyan
       iv.     Ext.1/3 - Signature of officer incharge in fardbeyan
       v.      Ext.2 - Signature of Suresh Patro on inquest report.
       vi.     Ext.3 - Postmortem report of the deceased.
       vii.    Ext.4 - First Information Report (FIR)

viii. Ext.5 - Signature of PW7 Sidheshwar Keshri on seizure list

9. After closure of the evidence statement of the appellant was recorded under section 313 of the Cr.PC where he denied all the allegations which was levelled against him.

10. The trial Court thereafter considering the evidence, convicted the appellant for committing the offence under section 304B of the Indian Penal Code and acquitted the appellant from the charge under section 302 of the Indian Penal Code.

11. Section 304-B of the Indian Penal Code reads as follows:

"304B. 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 purpose 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."

The statute thus provides deeming provision. There are three conditions in the aforesaid section and if those three conditions are fulfilled then it shall be deemed that the husband

or the relative had caused the death of the lady. Three conditions which have been culled out from section 304B are as follows:

i. The death caused by burn or bodily injury or occurs otherwise then under normal circumstance. ii. Death occurred within seven years of her marriage. iii. It has been shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.

All these conditions must simultaneously exist to bring the offence under provision punishable under section 304B of the Indian Penal Code. In this context we may also refer to section 113B of the Indian Evidence Act, 1872. The said provision 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)."

12. As per the aforesaid provision of law the presumption is against the accused if it is established that soon before death, the woman was subjected by such person to cruelty or harassment in connection with any demand of dowry. If it is proved that the death is in connection with demand for dowry and there was harassment of the woman, the Court has to presume guilt of the accused person. Then the question of reverse burden would be applied in the cases where the accused has to establish and prove his innocence but section 113B of the Indian Evidence Act, 1872

can only be applied if all the conditions laid down under section 304B of the Indian Penal Code is established and proved by the prosecution. Keeping the aforesaid proposition of law in mind we now proceed to analyze the evidence.

13. The prosecution evidence undoubtedly suggests that the date of marriage of the deceased with the appellant was June 2008. It is also established and proved that the deceased died on 22.12.2012. This evidence clearly suggests that death occurred within seven years of marriage the deceased. Thus one of the ingredients that death was within seven years from the marriage has been established by the prosecution.

The next issue which would fall for consideration is the cause of death. The doctor is PW4. He has conducted postmortem on the dead body of the deceased. He has found the following injuries on the dead body:-

External examination :

i. Tongue protruded and bitten. There is blood in mouth and nostril.

ii. Whole body charred and black, texture dry scalp hair and eyebrow burnt. There is no live reaction underneath the charred skin. There is no blub formation, no edema of skin.

Internal Examination :

i. Trachea - there is blood and mucous in trachea. Shoot or carbon particles present in trachea. ii. Lungs - congested.

iii. stomach undigested rice present.

iv. Uterus - small in size and non-gravid.

The doctor opined that the death is caused due to Asphyxia either by strangulation or throttling which may be due to smothering. The burn injury is postmortem in nature.

14. It is not a case that the deceased committed suicide by hanging. The postmortem report also unequivocally suggests

that the deceased was killed and thereafter she was burnt so that the evidence can be destroyed. Thus, the second ingredient of section 304B has also been proved by the prosecution.

15. Now on the point of dowry and torture soon before death, we find though PW3 had stated that there was demand for Rs. 20,000/- and a motorcycle but the mother of the deceased in paragraph no. 7 had stated that this appellant never demanded Rs. 20,000/- or motorcycle from her or her husband. There is also no evidence that this appellant demanded dowry soon before death of the deceased. Thus we come to the conclusion that the prosecution has failed to establish and prove the ingredients of demand of dowry and torture soon before death. In absence of anyone of the ingredients, the appellant would not have been convicted under section 304B of the Indian Penal Code, thus his conviction under section 304B is bad.

16. When we proceed further, we find that the charge was framed under section 302 of the Indian Penal Code also. The trial Court has acquitted the appellant only on the ground that the Court has convicted the appellant under section 304B of the Indian Penal Code.

17. The trial Court has not recorded finding on charge under section 302 of the Indian Penal Code. Conviction under one charge doesn't mean automatic acquittal in other charge. It was incumbent on the learned trial Court to record its finding on the charge of murder against the accused.

18. Now we proceed as to whether the appellant can be convicted under section 302 of the Indian Penal Code. PW3 and PW6 has categorically stated that the appellant was torturing the deceased. Though PW6 had stated that the appellant and the deceased used to visit their house and used to stay there happily and she used to return to their matrimonial house happily but

there is evidence which would suggest that the marital life was not cordial. This would be evident from paragraph no. 6 of the cross examination of PW6 where she stated that though no assault had taken place in her presence, yet over phone she would come to know about the assault made on the deceased which is evident from paragraph no. 8 where she stated that her daughter had narrated on mobile phone that she was being assaulted by this appellant. There was some discord between the appellant and deceased which is also apparent from the paragraph no. 14 of the statement of PW6, wherein she stated that her daughter wanted to live in Kitadih in a rented house, whereas the appellant wanted to stay in his village. PW3 who is the brother also stated that there was regular torture perpetrated upon this deceased, by the appellant. In paragraph nos. 1 he stated about the torture. He also stated that Rs. 20,000/- was being demanded as dowry at the initial stage. From the evidence of these two witnesses, we find that there was matrimonial discord among the appellant and the deceased.

19. Now the next question which fall for consideration is about presence of the appellant at the time of occurrence. The appellant referring to cross-examination of PW6 and the testimony of investigating officer, had taken a stand that hand of the appellant was also burnt while saving the deceased. On this question these witnesses showed their ignorance. The fact which would emerge from this question, which had been put to the appellant is that he admittedly was present in the house and tried to save the deceased i.e. his wife from burning and some part of the his body was also burnt. Logically appellant was supposed to be with his wife, in the absence of any contrary plea and evidence.

Suggestion put on behalf of the defence that hand of the appellant was burnt while saving the deceased, establishes that

he was present with the deceased at the relevant time of incidence. The postmortem report clearly suggests that the burn was postmortem. When the burn is postmortem, there is no occasion to save the deceased from getting burnt. This suggests that after the death of the deceased the appellant tried to burn the dead body so that the evidence can be wiped out.

20. The prosecution has thus been able to prove the presence of the appellant at the place of occurrence and also proved that the death being homicidal. They have also proved that after the death, dead body was burnt.

21. The place of occurrence is undisputed which has also been proved by the prosecution. It is the house of this appellant. All the witnesses including the investigating officer had clearly stated that the dead body was found in the house of this appellant.

22. When all these aforesaid circumstances have been proved, Section 106 of the Indian Evidence Act comes to the play. Section 106 of the Indian Evidence Act reads as follows:

106. Burden of proving fact especially within knowledge. - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

23. The death of the deceased in the house of this appellant which is unnatural, thereafter postmortem burn is a fact, which was especially within the knowledge of this appellant, thus, the appellant has the burden of proving the fact. When we go through his statement under Section 313 of Cr.P.C, we find that he has simply denied the circumstances. The denial of the fact which was within his special knowledge is another circumstance which will go against the appellant.

24. The Hon'ble Supreme Court in the case of "Anees vs State Govt. of NCT" reported in 2024 SCC OnLine SC 757, has dealt with Section 106 of the Evidence Act and held that this provision has been enacted only to deal with these types of circumstances where the offence has taken place within the four corners of the wall and within a closed door. In this case we find that the appellant has failed to discharge the burden which has been casted upon him in terms of Section 106 of the Evidence Act.

25. We are holding this because we find that the prosecution has been able to discharge the initial burden of establishing the prima facie guilt of this appellant that he had committed the offence.

26. In the absence of evidence of demand of dowry and cruelty soon before death Judgment of conviction under Section 304B is set aside. For the reasons discussed in foregoing paragraphs appellant is convicted for the offence under Section 302 of IPC.

The appellant will not at all be prejudiced as because he was already facing a charge under Section 302 of IPC and he has led evidence considering the charge. He knew what is the charge against him and the facts of this case, thus, he will not be prejudiced.

27. Considering the aforesaid fact, we convict the appellant under Section 302 of IPC. Accordingly, the instant criminal appeal is dismissed with modification in the judgment of conviction dated 18.03.2017. However the sentence of imprisonment for life is not interfered but the same is inflicted under section 302 of IPC now.

28. I.A. No. 11072 of 2023 has been filed to suspend the sentence and release this appellant on bail. Since we have already dismissed this appeal on merit itself, I.A. No. 11072 of 2023 is dismissed as infructuous.

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

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.)

High Court of Jharkhand, Ranchi Dated : 01/10/2024 Tanuj/

.A.F.R.