Jharkhand High Court
Surendra Khirwar vs The State Of Jharkhand on 30 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1701 of 2017
-----
(Against the judgment of conviction dated 19.07.2017 and order of
sentence dated 20.07.2017 passed by learned District & Additional
Sessions Judge-II, Dumka in Sessions Trial No. 193 of 2014).
----
Surendra Khirwar, S/o Late Jagarnath Khirwar, R/o Village
Hathnaga, P.O. & P.S.-Jama, District- Dumka, Jharkhand
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
------
PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
------
For the Appellant(s) : Mrs. Bandana Kr. Sinha, Advocate
For the Respondent(s) : Mr. Manoj Kr. Mishra, APP
.........
JUDGMENT
By Court:
(30.09.2024)
We have heard the learned counsel appearing for the
appellant and the learned counsel for the State.
2. This Criminal Appeal arises out of the judgment of conviction
dated 19.07.2017 and order of sentence dated 20.07.2017 in Sessions Trial
No.193 of 2014 whereby and whereunder learned District & Additional
Sessions Judge-II, Dumka convicted the appellant under Section 302 of the
Indian Penal Code and sentenced him to undergo imprisonment for life with
fine of Rs. 20,000/-.
3. Counsel for the appellant submits that the conviction is under
Section 302 of the Indian Penal Code, though the charge was framed under
Section 498A/304B and 302 of the Indian Penal Code, since the demand of
dowry and torture for non-payment of dowry was not substantiated. She
further argues that there is no eye witness to the said occurrence and the
only circumstances to convict the appellant is that he is the husband of the
deceased and the occurrence had taken place in the house of this appellant.
As per the counsel for the appellant, when admittedly there were other
inmates of the house present there, this appellant being the husband could
not have been solely convicted leaving the others, more so when there is
nothing specific that this appellant was only involved in this occurrence.
She further argues that none of the prosecution witnesses have
supported the prosecution case. She lastly argues that admittedly there is
no dying declaration of the deceased in this case, thus there is no
material against this appellant to convict him.
4. Counsel for the State submits that admittedly the appellant is
the husband of the deceased and it has come in evidence that there was
marital discord and the death is unnatural i.e. by burn, thus this appellant
being the husband is liable to be convicted.
5. The FIR is at the instance of P.W. 4, who is the father of the
deceased. He stated in the fardbeyan that after the marriage of the
deceased with this appellant, his daughter lived happily only for two
years. Thereafter a child was born and dispute started between the
husband and the wife as well as with the other family members. They
were bent upon to drive out the deceased from their house, for which, she
was often abused and tortured. He received information that his daughter
was burnt to death by sprinkling kerosene oil by the family members of
the appellant, thereafter he went the matrimonial home of his daughter
and saw the deceased in burnt condition. He also found a container of
kerosene oil at the place of occurrence. The deceased was taken to
Jarmundi Hospital and from there she was referred to Deoghar Hospital,
where she died in course of treatment.
On the basis of this statement, FIR being Jarmundi P.S. Case No. 90
of 2014 was registered under Sections 498A and 302/34 of the Indian
Penal Code. After investigation, the police submitted chargesheet under
Sections 498A/302/34 of the Indian Penal Code against this appellant.
Accordingly, cognizance of the offence was taken and the case was
committed to the Court of Sessions for trial. As the appellant pleaded not
guilty, charges were framed against him for the aforesaid section.
6. To prove the prosecution case, altogether six witnesses were
examined by the prosecution, who are as follows:-
P.W.-1 Nakul Mandal
P.W.-2 Pappu Mandal
P.W.-3 Dr. Paul Hansda
P.W.-4 Baikund Mandal, informant of this case
P.W.-5 Suresh Prasad Rajak, Investigating Officer
P.W.-6 Brijkishor Shukla
7. The following documents were also exhibited by the
prosecution:-
Exhibit-1: Signature of Nakul Mandal (P.W.-1) on
seizure list.
Exhibit-1/1: Signature of Pappu Mandal (P.W.-2) on
inquest report.
Exhibit-2: Postmortem report
Exhibit-3: Signature of Baikund Mandal on fardbeyan
Exhibit-4: Formal FIR
Exhibit-5: Handwriting and signature of S.I. Ramawatar
Yadav
Exhibit-6: Endorsement
Exhibit-7: Carbon copy of inquest report
Exhibit-8: Map of place of occurrence
Exhibit-9: Seizure list
Exhibit-10: Memo of arrest
Exhibit-11: Forwarding letter
8. The prosecution has also produced material in support of its
case, which are as follows:-
Material Exhibit-I: Lantern Green colour without cap and
mirror.
Material Exhibit-II: Empty Plastic bottle with cap.
9. After completion of prosecution evidence, the statement of the
appellant was recorded under Section 313 Cr.P.C.
10. The Trial Court thereafter considering the evidences had
convicted the appellant for committing the offence and sentenced as
aforesaid.
11. P.W.-1 is the neighbour, who stated that in the evening, he
heard the commotion near the house of this appellant. He reached there
and found that the wife of this appellant was burnt but she was alive.
Police came thereafter and sent the injured to the hospital. One lantern
and one bottle were recovered. He is the witness to the said recovery and
identified his signature on it, which is marked as Exhibit-1. He further
stated that his statement was not recorded by the police and he came to
know by the villagers that the wife of Surender got burnt. He further stated
that villagers were saying that she had burnt herself.
P.W.-2 is the brother of the deceased, who stated that this appellant
used to torture and assault the deceased and demand money. On
05.04.2014, the deceased was assaulted by this appellant and thereafter
was burnt after sprinkling kerosene oil. He received the information from
someone of the village of the appellant, then he along with his father,
brother and mother went to the house of this appellant and saw his sister
lying in burnt condition. With the help of Ambulance, she was sent to the
hospital but she died on the same day. He further stated that police came
to the hospital, prepared the document of dead body and he put his
signature as witness which was marked as Exhibit-1/1. He is deposing for
the first time in the Court, he also narrated that in his presence also
money was demanded, but he admits that he had not seen the
occurrence and denied the suggestion that the deceased died while she
was cooking.
P.W.-3 is the Doctor, who conducted the postmortem of the
deceased. He found the following injuries:-
Antemortem examination:-
The whole body is charred from the head to both
lower limbs and both upper limbs and trunk except lower
back with 90% burnt.
Frothy bleeding from nose.
On dissection of the body of the deceased following
injuries are found:-
1.Brain hemorrhage is present with blood.
He has also narrated that there was 90% burnt in this case. In his
opinion the death was caused is due to shock and haemorrhage. The
postmortem report was marked as Exhibit-2.
P.W.-4 is the father of the deceased. He also stated in the similar
line as that of the P.W.-1. He stated that after receiving the information of
burning of his daughter he and along with others went to the matrimonial
home of the daughter. He also stated that this appellant and others used
to torture her and always demanded money. He received information that
after sprinkling kerosene oil, she was burnt. In his cross-examination, he
stated that when they reached there, he found his daughter in burnt
condition, she was saying something but her voice was not clear thus she
could not hear. He also denied that the deceased died a accidental death.
P.W.-5 is the Investigating Officer, who investigated the occurrence
and submitted the chargesheet. This witness exhibited the inquest report
and also stated that he has filed the chargesheet under Section 498A and
302 of IPC.
12. P.W.-6 produced the materials which were seized. He
produced the lantern without cap and cover, which was marked
"MR06/14" and he also produced the plastic bottle with a cap, which is
marked as Material Exhibits-I and II. In his cross-examination, he stated
that all these materials are easily available in the market.
13. Thus, from the aforesaid evidence, we find that the
circumstances which are against this appellant is that the death had taken
place in the house of this appellant. The death was due to burn injury and
there was marital discord between the deceased and the appellant.
14. The prosecution has failed to prove any demand of dowry
soon before death by this appellant thus, the Trial Court had rightly not
convicted the appellant under Section 304B and 498A of the Indian Penal
Code. So far as Section 302 of IPC is concerned, to prove the offence
under Section 302 of IPC, it is to be proved that the death is homicidal.
15. In this case there is allegation that the deceased was
murdered by this appellant, but as stated earlier there is no eye witness to
the said occurrence. Since the conviction is under Section 302 of IPC and
the fact that is no demand of dowry, there cannot be any presumption of
guilt against this appellant. The prosecution has to prove the guilt of this
appellant beyond all reasonable doubt. Furthermore, when the case is of
circumstantial evidence, the chain of circumstance must be complete and
each of the circumstances should be proved beyond all reasonable doubt.
In this case the only circumstance is that the deceased died in the house
of this appellant. P.W.-1, though was declared hostile had stated that he
heard from the villagers that the deceased had burnt herself.
16. There is probability that the deceased had committed suicide
as a lantern without glass and a bottle with cap was found at the place of
occurrence. The recovery of this material is not a conclusive prove that
the appellant had murdered the deceased by sprinkling kerosene oil. The
other side is possible that the deceased had committed suicide by
sprinkling kerosene oil upon herself. Though, the deceased was alive but
she was not in a position to give her statement which is evident from the
evidence of P.W.-4 itself. Thus, there is a doubt over the involvement of
this appellant and also there is a doubt as to whether the death is suicidal
or homicidal. When a genuine doubt has been created by the defence in
the mind of this Court about the nature of death, it is not proper for us to
convict this appellant under Section 302 of IPC. Thus, we set aside the
judgment of conviction dated 19.7.2017 and order of sentence dated
20.7.2017 passed by learned District and Additional Sessions Judge-II,
Dumka in Sessions Trial No. 193 of 2014 by giving the appellant benefit of
doubt.
17 Accordingly, the instant Criminal Appeal is allowed.
18. As the appellant is in custody, he shall be released forthwith, if
not required in any other case.
19. 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 : 30.09.2024
NAFR-R.S.& Anu/-Cp3.
