Jharkhand High Court
Rohit Pandey vs The State Of Jharkhand on 15 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.783 of 2017
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(Against the judgment of conviction dated 03.04.2017 and order of sentence
dated 06.04.2017 passed by learned Additional Sessions Judge-XII,
Hazaribagh in Sessions Trial No. 163 of 2013)
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Rohit Pandey, son of Indrajeet Pandey, resident of village Mangarh,
PO Lohandi, PS Chouparan, District Hazaribagh, Jharkhand
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
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PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant(s) : Mr. Sunil Kumar, Advocate
For the Respondent(s) : Mr. Abhay Kumar Tiwari, APP
.........
JUDGMENT
15th October 2024
By Court: I.A. No. 10317 of 2023
Since this criminal appeal has been taken up for final
hearing, I.A. No. 10317 of 2023 filed for suspending the sentence
and to release the appellant on bail, is dismissed.
Criminal Appeal (D.B.) No.783 of 2017
2. We have heard the learned counsel appearing for the
appellant and the learned counsel for the State at length.
3. This Criminal Appeal arises out of the judgment of
conviction dated 03.04.2017 and order of sentence dated
06.04.2017 passed in Sessions Trial No. 163 of 2013 whereby and
whereunder learned Additional Sessions Judge-XII, Hazaribagh
convicted the appellant under section 304B and 498A of the
Indian Penal Code and sentenced him to undergo imprisonment
for life with fine of Rs. 5,000/- for the offence under section 304B
of the IPC and RI for 3 years with fine of Rs. 3,000/- for the
offence under section 498A of the IPC.
4. The learned counsel for the appellant submits that the
appellant has been convicted under section 304B of the IPC but
there is no evidence to suggest that soon before death either
there was any demand for dowry or the deceased was being
tortured for dowry. He submits that in absence of one of the
basic ingredients of section 304B of the IPC, which the
prosecution has not been able to establish, the appellant could
not have been convicted under the aforesaid section. He further
submits that though the death may be unnatural but in fact it is
doubtful whether the deceased had herself consumed poison or
she was administered poison. It is submitted that the evidence
led by the doctor suggests that there was no injury on any part of
the body which would suggest that if at all poison was
administered, she consumed it herself without any external
force. Further he submits that the relationship was cordial which
would be evident from the cross-examination of the informant
wherein he stated that after the girl child was born it is this
appellant and other family members who used to take care of the
deceased.
5. The learned APP opposes the prayer of the appellant and
submits that the death had occurred within seven years of
marriage and it has come in evidence that motorcycle was
demanded as dowry. He further submits that the FSL report
proves that the deceased died due to poisoning as organo-
phosphorus was detected in the viscera. He submits that since all
the three ingredients are established by the prosecution, it was
the duty of the appellant to prove his innocence which he has
failed. Thus, his conviction needs to be sustained.
6. The FIR is at the instance of PW8 who is the brother of the
deceased. He stated that marriage of the appellant was
solemnized with the deceased sometime in the year 2008. There
was demand of dowry and torture was perpetrated upon his
sister. Matrimonial suit was also filed by this appellant and the
same was amicably settled as the deceased returned to her
matrimonial house. Thereafter the informant received
information that the deceased had died in her matrimonial
house. The informant went to the matrimonial house and
suspected that the deceased died due to poisoning as froth was
coming out from her mouth.
7. On the basis of the aforesaid written report, Chouparan PS
Case No. 237 of 2012 was registered under sections
498A/304B/34 of the Indian Penal Code against the appellant.
8. After investigation, the Investigating Officer submitted
chargesheet against the appellant for the offence punishable
under Section 498A and 304B/34 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 and
the trial proceeded.
9. As the appellant pleaded not guilty charges were framed.
It is pertinent to mention that an alternative charge under section
302 of the Indian Penal Code was also framed against the
appellant.
10. The appellant was put on trial in which 9 witnesses were
examined by the prosecution. After considering the evidence,
both oral and documentary, the trial Court convicted the
appellant for committing offence punishable under sections 498A
and 304B of the Indian Penal Code. There is no conviction under
section 302 of the Indian Penal Code.
11. We have already narrated the prosecution story which has
been mentioned in the First Information Report. In this case there
are nine prosecution witnesses examined, who are :-
i. PW1 :- Vyas Rana
ii. PW2 :- Bishundhari Dangi
iii. PW3 :- Ramadhin Pandey
iv. PW4 :- Veenita Devi
v. PW5 :- Deepak Rana
vi. PW6 :- Shahdeo Sao
vii. PW7 :- Dr. Kapildeo Prasad
viii. PW8:- Krishna Upadhyay
xi. PW9:- Sikandar Prasad Singh
PW1 and PW2 have been declared hostile.
PW3 is the grandfather-in-law of this appellant who stated
that the deceased died due to cold. In paragraph no. 3 he stated
that there was matrimonial suit which was amicably settled and
a girl child was also born out of the same wedlock. It is pertinent
to mention here that he was not declared hostile by the
prosecution.
PW4 is the sister-in-law of the deceased who stated that the
deceased used to bath 3 to 4 times in evening as a result of which
she caught cold thereafter she died. She stated nothing more. She
was also not declared hostile.
PW5 and PW6 have been declared hostile by the
prosecution. Nothing important has been extracted from them
which needs to be taken note by this Court.
PW7 is the doctor, who was member of the medical board,
conducted the postmortem of the deceased and found the
followings:
1. Rigor mortis present on neck upper and lower extremity.
No external injury present on the body.
2. Face pale, both eyes closed, mouth semi open, white froath
coming from nostrils, conjunctiva congested mucous
membrane slightly congested.
3. Exploration of chest and abdomen, heart congested-left
chamber empty, right chamber having thick black clotted
blood. Lungs, liver, kidneys and spleen congested.
He stated that no external injury was present in the body of
the deceased. So far as cause of death is concerned it was
mentioned that the same cannot be ascertained and the viscera
was preserved for clinical examination.
PW8 is the informant. He is the brother of the deceased. He
stated that the deceased was married sometime in the year 2008
and died on 13.11.2012. He received information that the
deceased died in her matrimonial home. He also stated that there
was a matrimonial dispute between the appellant and the
deceased and the appellant had filed a matrimonial suit but the
same was not for seeking divorce. On receiving information he
went to the house of the appellant and found the deceased lying
dead and froth was coming out of her mouth which led to the
conclusion that the deceased was poisoned. He further stated
that when the deceased was alive, in-laws were demanding
motorcycle and cash in form of dowry. He further stated that
due to non-fulfillment of the demand, the deceased was done to
death. In his cross examination in paragraph no. 12 he
mentioned that he cannot say the date and time when the
demand was made. In paragraph no. 11 he stated that a girl child
was born and after the birth of the child the deceased was looked
after by her husband (appellant) and the other family members.
PW9 is the investigating officer who conducted the
investigation.
12. Several documentary evidences were also exhibited which
are as follows:
i. Ext.1 - Postmortem report.
ii. Ext.2 - Written report.
iii. Ext.3 - Formal FIR.
iv. Ext.4 - FSL report.
13. One of the important documents is Exhibit-4 which is FSL
report. As per the FSL report, organo-phosphorus pesticide was
found in the viscera of the deceased. Finding of organo-
phosphorus pesticide in the viscera suggests that the death of the
deceased is due to consumption of said pesticide thus the death
cannot be said to be normal or natural. It is definitely otherwise
than in normal circumstances. Thus the prosecution has been
able to prove that the deceased died otherwise than in normal
circumstance, which is one of the ingredients which the
prosecution has to establish in a case involving section 304B of
the Indian Penal Code.
14. So far as the period of death is concerned, we find that the
same has occurred within seven years of marriage. The defence
has also no disputed the same. Thus, the prosecution has also
established that the deceased died within seven years of her
marriage.
15. Now one of the main ingredients which the prosecution
needs to establish is that there was demand of dowry and torture
for the said demand soon before death.
16. From the evidence led by the prosecution, we find that
except PW8 there was no one who had whispered about demand
of dowry. Even PW8 though had stated that motorcycle and cash
were demanded but he could not spell out the time and date or
even the period when the same were demanded. The statement
made by this witness so far as demand of dowry is concerned is
vague. Thus, we conclude that the prosecution has not been able
to establish that soon before death there was demand for dowry
and the deceased was tortured for that.
17. It is well settled that to convict an accused under section
304B of the Indian Penal Code, the prosecution has to prove the
three ingredients, which 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 make the
offence punishable under section 304B of the Indian Penal Code.
18. 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)."
Section 113B of Evidence Act will be attracted only when
the prosecution successfully establishes existence of all the three
ingredients of section 304B of the Indian Penal Code. If the
prosecution fails to establish any one of them, the reverse burden
under section 113B of the Evidence Act cannot be applied.
19. In this case, we find that though the prosecution has been
able to prove two of the ingredients but the other i.e. demand of
dowry soon before death and torture on account of demand of
dowry has not been established by the prosecution. When the
prosecution has failed to establish this ingredient, there is no
applicability of section 113B of the Indian Evidence Act in this
case. We thus conclude that the prosecution has not been able to
prove the charge under section 304B of the Indian Penal Code
against the appellant.
20. So far as section 498A of the Indian Penal Code is
concerned, we find that PW8 has stated that there was demand
for motorcycle and cash but the said statement is a vague
statement without there being any corroboration. There is
nothing to suggest that she was being tortured by the appellant,
rather the evidence of PW8 suggests that after the child birth the
deceased was taken care of by her husband. Further there is no
mark of injury upon the deceased as per the postmortem report.
Thus, we conclude that the prosecution has not been able to
prove the charge under section 498A of the Indian Penal Code
also.
21. Considering what has been held above, we are inclined to
allow this Criminal Appeal and acquit the appellant.
22. The conviction of the appellant under Section 304B and
498A of IPC vide judgment of conviction dated 03.04.2017 passed
by learned Additional Sessions Judge-XII, Hazaribagh in
Sessions Trial No. 163 of 2013, is hereby set aside and,
accordingly, the sentence awarded by the learned Trial Court
vide order of sentence dated 06.04.2017 is also set aside.
23. This Court directs the above named appellant to be
released forthwith from custody, if not required in any other
case.
24. 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 : 15/10/2024
Tanuj/
.A.F.R.
