Jharkhand High Court
Radhey Shyam Barnwal Son Of Late ... vs The State Of Jharkhand on 26 September, 2024
CRIMINAL APPEAL (DB) NO. 1191 OF 2017
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CRIMINAL APPEAL (DB) NO. 1120 OF 2017
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CRIMINAL APPEAL (DB) NO. 1281 OF 2017
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AGAINST THE JUDGMENT OF CONVICTION
DATED 26TH MAY, 2017 AND ORDER OF
SENTENCE DATED 7TH / 8TH JUNE, 2017
PASSED BY 2ND ADDITIONAL SESSIONS
JUDGE (FTC), BERMO AT TENUGHAT IN
SESSIONS TRIAL NO. 295 OF 2014.
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1. Radhey Shyam Barnwal son of late Gulabchand Saw, resident of
Telo, Upar Tola, PO PS Chandrapura, District Bokaro.
2. Asha Devi wife of Radheshayam Barnwal, resident of Telo, Upar
Tola, PO PS Chandrapura, District Bokaro.
... Appellants [in Cr. Appeal (DB) No.1191 of 2017]
1. Sinku @ Rakesh Kumar Barnwal son of Radheshayam Barnwal,
resident of Tello, Upar Tola, PO PS Chandrapura, District Bokaro.
2. Vinay Barnwal @ Binay Kumar Barnwal @ Vinay Kumar Barnwal
son of Radheshayam Barnwal, resident of Tello, Upar Tola, PO PS
Chandrapura, District Bokaro.
... Appellants [in Cr. Appeal (DB) No.1120 of 2017]
Birendra Kumar Barnwal, Son of Radheshyam Barnwal, Resident
of Telo, Upar Tola, PO PS Chandrapura, District Bokaro.
... Appellant [in Cr. Appeal (DB) No.1281 of 2017]
-versus-
The State of Jharkhand ... Respondent [in all three appeals]
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For the Appellants : Mr. B.M. Tripathi, Sr. Advocate
Mrs. Nutan Kumari Sharma, Advocate
For the Respondent : Mr. Satish Prasad, A.P.P.
Ms. Priya Shrestha, Sr. P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
C.A.V. On: 24.09.2024 Pronounced On: 26/09/2024
Per Ananda Sen, J. The appellants have preferred these appeals against the
judgment of conviction dated 26th May, 2017 and order of sentence dated
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7th/ 8th June, 2017 passed by the Additional Sessions Judge II, FTC, Bermo
at Tenughat in Sessions Trial No. 295 of 2014, arising out of Chandrapura
Police Station Case No. 155 of 2014 corresponding to G.R. No.1093 of
2014, whereby and whereunder, the appellants have been convicted for the
offences punishable under Sections 498A, 302 read with Section 34 of the
Indian Penal Code and sentenced them to undergo rigorous imprisonment
for life and fine of Rs.10,000/- each for committing the offence punishable
under Sections 302 read with Section 34 of the Indian Penal Code and in
default of payment of fine, all the appellants were further sentenced to
undergo rigorous imprisonment for three months; they have further been
sentenced to undergo rigorous imprisonment for 2 (two) years and to pay
fine of Rs.2000/- and in default to undergo further rigorous imprisonment for
one month for the offence punishable under Section 498A of the Indian
Penal Code.
2. The appellants in Cr. Appeal (DB) No.1191 of 2017, namely,
Radhey Shyam Barnwal and Asha Devi are father-in-law and mother-in-law
respectively of the deceased; appellants in Cr. Appeal (DB) No.1120 of
2017, namely, Sinku @ Rakesh Kumar Barnwal and Vinay Barnwal @ Binay
Kumar Barnwal @ Vinay Kumar Barnwal are two brothers-in-law of the
deceased and the appellant in Cr. Appeal (DB) No. 1281 of 2017, namely,
Birendra Kumar Barnwal is the husband of the deceased.
3. Learned counsel appearing on behalf of the appellants-convicts
argued that even the informant, who is the father of the deceased and also
the mother of the deceased have been declared hostile. P.W.2, who is the
brother of the deceased, though, had supported the case of the prosecution,
but, he cannot be relied as he stated that the deceased in the hospital before
him, before P.W.3 and P.W.4 and before other relatives had given a dying
declaration stating that it is these appellants, who had committed her
murder, due to non-fulfilment of dowry, but the medical evidence would
clearly suggest that the deceased was not in a position to speak as the area
between her trachea and larynx was choked. None of the doctors of Bokaro
General Hospital, who were attending her while she was admitted, were
examined to prove that she was admitted in the hospital and was capable to
speak. Non-examination of these doctors gives a death blow to the evidence
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of P.W.2. The doctor who conducted the postmortem examination, did not
find any smell of kerosene oil, but surprisingly, the investigating officer has
stated that he found match box in the bathroom and seized a can of
kerosene oil and stated that kerosene oil was sprinkled and deceased was
burnt to death. As per the learned counsel for the appellants, if at all the
death was caused due to burn by sprinkling kerosene oil, the doctor who had
conducted the postmortem examination, should have found smell of
kerosene oil on the deceased. He submits that there are no other witnesses,
who had supported the prosecution on the point of demand of dowry and
torture. He contends that if P.W.2 is considered to be unreliable witness,
then, there would be no other option but to acquit the appellants.
4. Learned counsel appearing for the State opposed the prayer of
the appellants and submitted that P.W.2, who is the brother of the deceased,
has supported the prosecution case and stated that the deceased was
tortured by the appellants. He also stated that he was also a witness to the
said torture. Further, he deposed that the deceased had narrated before him
and the other family members about the occurrence and involvement of the
appellants, thus, there is no doubt that the deceased had given dying
declaration before him and other family members. As per the State,
deceased died within seven years of marriage, due to burn injuries and since
there was persistent demand of dowry, Section 304B of the Indian Penal
Code is attracted, but the Court has convicted the appellant under Section of
the Indian Penal Code and not under Section 304B of the Indian Penal
Code. On these grounds, the appellants have rightly been convicted and
these appeals are liable to be dismissed.
5. The appellants have been convicted under Sections 498A,
302/34 of the Indian Penal Code.
6. The prosecution case is based upon the fardbeyan dated
10.09.2014 of the informant- Ashok Prasad Barnwal (P.W.3), wherein he has
narrated that his daughter Khushbu Devi was married two months ago on
07.07.2014 to the appellant Birendra Kumar Barnwal. At the time of
marriage, as per the demand, a sum of Rs.65,000/- (Rupees Sixty Five
Thousand), utensils, jwelleries and other goods were given. The entire
marriage expenses were born by him. Since after five days of marriage, the
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in-laws started demanding a colour television, fridge, motorcycle as dowry
and started torturing the deceased. Thereupon, he took an old television
from his home to the in-laws' house. He could not afford to give fridge and
motorcycle. When he and his family members used to go to the in-laws
house of her daughter, they used to beat and made them to escape and
used to say that they will be allowed to meet only when they will come with
the goods. On 09.09.2014 in the morning at 09.00 AM and 09.15 AM her
daughter made phone call from her husband's mobile No.915535834 and
informed that last night her husband Birendra Kumar Barnwal, father-in-law
Radheyshyam Barnwal, mother-in-law Asha Devi, brother-in-law Sinku @
Rakesh Barnwal and Vinay Barnwal have assaulted her and saying that they
will kill her. Yesterday on 09.09.2014 at about 1200 PM a relative called him
over phone and informed that his daughter has burnt and he should move to
Bokaro General Hospital. Immediately on a vehicle, he along with his wife
Manju Devi, son Mahesh Kumar Varma and other relatives reached Bokaro
General Hospital. He reached BGH at about 02.00 p.m. and saw his
daughter in a burnt state. She was being treated in burn ward. His daughter
told him that her husband, father-in-law, mother-in-law, brother-in-law have
all, by sprinkling kerosene oil, burnt her. In course of treatment on
10.09.2014 at 08.00 AM in the morning his daughter died. He claimed that
husband of the deceased Birendra Kumar Barnwal, father-in-law
Radheyshyam Barnwal, mother-in-law Asha Devi, brother-in-law Sinku @
Rakesh Barnwal and Binay Barnwal have all, in collusion, burnt his daughter
to death for dowry.
7. On the basis of the aforesaid fardbeyan of the informant,
Chandrapura Police Station Case No.155 of 2014 was registered for
offences under Sections 304B/34 of the Indian Penal Code.
Police, after completion of investigation, submitted charge sheet
against the appellants for the offence punishable under Sections 304B/34 of
the Indian Penal Code and, accordingly, cognizance of the offence was
taken and the case was committed to the Court of Sessions for trial.
Charges were framed with four heads for offences under Sections 498A/34
Section 302/34, Section 304B/34 and Section 306/34 of the Indian Penal
Code.
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8. To prove the charges, the prosecution had examined six
witnesses, who are as follows;
P.W.1 Shammi Khan
P.W.2 Mahesh Barnwal
P.W.3 Ashok Prasad Barnwal
P.W.4 Manju Devi
P.W.5 Dr. Bikash Kumar
P.W.6 Banarasi Prasad
The prosecution also produced following documents to
substantiate its case, which were marked exhibits:-
Ext.1 Signature of P.W.1 upon seizure list
Ext.2 Signature upon fardbeyan of P.W.2
Ext.2/1 Signature of Mahesh Barnwal
Ext.3 Postmortem report of deceased
Ext.2/2 Endorsement upon written report
Ext.4 Death inquest report
Ext.5 Deadbody challan
Ext.1/1 Seizure list
Ext.6 Chargesheet No.107/14 dated 03.10.2014
Ext.7 Formal FIR
9. Out of the six witnesses examined on behalf of the prosecution,
P.W. 3 Ashok Kumar Barnwal (informant) and P.W.4 Manju Devi, who are
father and mother, respectively, of the deceased have been declared hostile.
P.W.1 Shammi Khan is a witness to the seizure list. He proved
his signature over the same, which was marked Exhibit 1. He has stated that
at the time of occurrence he was at his home and on hue and cry when he
went, he saw that the deceased was burnt. In his cross examination, he has
stated that he used to visit the house of the appellants and to his knowledge,
there was no dispute in their family. At the place of occurrence, he had
heard from ladies that in course of cooking food, the deceased was burnt
accidentally.
P.W.2 Mahesh Barnwal is the elder brother of the deceased. He
is also witness to the fardbeyan of the informant (P.W.3). He stated that the
in-laws started assaulting and torturing the deceased since after five days of
her marriage as they were demanding TV, fridge, motorcycle and gold chain.
He has also stated that on an occasion of raksha bandhan, when he had
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been to the in-laws' house of her sister, the in-laws again demanded for
dowry and also scuffled with him. In his presence, husband of the deceased
assaulted her and her mother-in-law abused her. They also threatened that if
the demand is not fulfilled, his sister would be killed. On 09.09.2014 at about
12.00 hrs. some one from the matrimonial home of his sister informed that
the deceased was burnt and is in B.G.H. He further stated that in the
hospital the deceased told that her father-in-law, mother-in-law, brothers-in-
law and husband by sprinkling kerosene oil have burnt her and closed the
door of the room from the outside. On the next day on 10.09.2014, in course
of treatment, the deceased died.
P.W.5 Dr. Bikash Kumar is the doctor, who had conducted
postmortem examination on the dead body of the deceased. He found the
following: -
Rigor mortis present in all the four limbs, Eyes-closed. Mouth-
closed. Tongue-inside.
Injuries:
Burn over 65% upon scalp-hair. all over the face, front and back
of the neck, both sides of forearms and palm. upper abdomen
and right knee joint. All are antimortem in nature.
On Dissection:
Scalp intact. Brain- NAD. Hyoid bone- intact. Trachea and
larynx - congested. Heart- (R) full of blood (L) empty Lungs,
Lever, Spleen & Kidney-congested. Stomach contains semi
digested food. Bladder about 30 ml. in urine. Uterus small in
size.
Cause of death-
Shock leads to cardio-respiratory failure, due to burn injuries.
Time since death within 24 hours.
He proved the postmortem report, which was marked Exhibit 3.
P.W.6 Banarasi Prasad is the investigating officer of this case.
He has proved the fardbeyan to be written and signed by SI Sheela Toppo of
Sector IV and further proved the endorsement made by him, which has been
marked as Exhibit 2/2. He also proved the inquest report, which was marked
Exhibit 4. He has proved the seizure list, which was marked as Exhibit 1/1.
He further proved the dead body challan, which was marked as Exhibit 5. He
has given description of the place of occurrence. He has proved the
chargesheet, which was marked Exhibit 6 and also proved the formal FIR,
which was marked as Exhibit 7.
10. After closure of prosecution evidence, the statement of the
appellants were recorded under Section 313 Cr.P.C in which they claimed to
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be innocent. Appellants have not examined any witness in defence.
11. The trial court after hearing the arguments and appreciating the
evidences on record, by a judgment of conviction dated 26th May, 2017 and
order of sentence dated 7th / 8th June, 2017 passed in Sessions Trial No.
295 of 2014 has convicted and sentenced the appellants in the manner as
stated in paragraph 1 hereinbefore.
12. In a case under Section 302 of the Indian Penal Code and also
under Section 498A of the Indian Penal Code, prosecution has to prove the
guilt of the accused beyond all reasonable doubt. Onus is upon the
prosecution to prove the case and there is no question of shifting the burden
upon the accused persons. Thus, in this case, prosecution has to prove that
the deceased was murdered by these appellants and also the ingredients of
Section 498A of the Indian Penal Code.
13. The fact, which is admitted is that the deceased is the wife of
the appellant Birendra Kumar Barnwal and the relationship of the deceased
with all these appellants are admitted, which is detailed in paragraph 2 of
this judgment hereinbefore.
14. Now it has to be seen as to what are the materials the
prosecution has brought to prove the offence under Section 498A of the
Indian Penal Code.
15. P.W.1 is the neighbour, who only stated that he saw the
deceased in burnt condition in the house of these appellants and he stated
in cross-examination that the relationship between the parties were cordial
and there was no dispute amongst the family members.
16. P.W.3 and 4 are the father and mother of the deceased, who
have been declared hostile. They had not stated anything about demand of
dowry. It is only P.W.2, who had stated about demand of dowry, torture and
that these appellants had burnt the deceased. P.W.2 has stated that it is the
deceased, who had given dying declaration before him and other family
members.
17. Now the question is whether the deceased was in a position to
give dying declaration or not. P.W.3 and 4 have categorically stated that the
deceased had not stated anything. Admittedly, there is no written dying
declaration. This case is of burn injuries and whether the deceased was in a
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position to speak has not been substantiated by the medical evidence. The
statement of P.W.2 that the deceased has given dying declaration also do
not find any corroboration from any of the witnesses.
18. Whether the deceased was in a condition to speak after getting
burnt is doubtful. None of the doctors of Bokaro General Hospital, where the
deceased was treated after sustaining burn injuries, were brought by the
prosecution to depose. Father and mother also did not state that before
them in the hospital, the deceased had narrated as to how she was burnt.
Further, the doctor, who conducted the postmortem found congestion
between the trachea and larynx. Thus, there is every doubt that the
deceased was not in a position to speak.
19. Thus, on the point of dying declaration, as narrated by P.W.2,
there is doubt in our mind. Thus, the evidence of P.W.2 cannot be accepted.
20. So far as death is concerned, there is nothing on record to
suggest that this is homicidal though the deceased died of burn injuries.
P.W.4, who is the mother of the deceased, had stated that the deceased had
got burnt injuries during cooking and thus she died. The father of the
deceased also did not make any allegation about commission of murder
while deposing as P.W.3. He stated that he went to the hospital and found
her daughter in a critical stage. He stated that he had lodged the case, but
he did not know under what offence, case was lodged and he became
unconscious after his daughter's death. He identified his signature and that
of his son on the fardbeyan, which were marked as Exhibit 2 and 2/1. He
stated that in the fardbeyan, there was no allegation of demand of dowry.
P.W.3, the father has been declared hostile. The mother, who is P.W.4, also
was declared hostile. She denied that she had given statement earlier to the
effect that there was demand of dowry and appellants had demanded TV,
motorcycle and due to non-fulfillment of the same, deceased was tortured
and was done to death by setting her on fire by pouring kerosene oil. She
also denied that in the hospital the deceased had complained about these
burns. In cross examination, she stated that the death is accidental.
21. Thus, the allegation of demand of dowry, though has been
narrated by P.W.2, but has not been supported by the informant, P.W.3, who
is also the father nor by the mother, who is P.W.4. It has to be noted that
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P.W.1 stated that the relationship was cordial.
22. It is the case of the prosecution that the deceased died as
kerosene oil was sprinkled upon her and she was put on flames. Doctor has
not found any smell of any inflammable material on the person of the
deceased.
23. Thus, from the evidence, we find that the prosecution has not
been able to prove the guilt of the appellants beyond all reasonable doubts.
Accordingly, giving benefit of doubt, we are inclined to acquit the appellants.
Accordingly, the judgment of conviction dated 26th May, 2017 and order of
sentence dated 7th / 8th June, 2017 passed by the Additional Sessions Judge
II, FTC, Bermo at Tenughat in Sessions Trial No. 295 of 2014, arising out of
Chandrapura Police Station Case No. 155 of 2014 corresponding to G.R.
No.1093 of 2014 are hereby set aside. The appellants in all three appeals
are hereby acquitted from the charges leveled against them. The appellants,
namely, Radhey Shyam Barnwal and Asha Devi [appellants in Cr. Appeal
(DB) No. 1191 of 2017] and appellant Birendra Kumar Barnwal [appellant in
Cr. Appeal (DB) No.1281 of 2017] who are in custody, be released forthwith,
if they are not wanted in any other case. The appellants, namely, Sinku @
Rakesh Kumar Barnwal and Vinay Barnwal @ Binay Kumar Barnwal @
Vinay Kumar Barnwal [appellants in Cr. Appeal (DB) No. 1120 of 2017] who
are on bail are hereby discharged from the liabilities of the bail bonds.
24. All these three appeals, i.e., Cr. Appeal (DB) No.1191 of 2017,
Cr. Appeal (DB) No.1120 of 2017 and Cr. Appeal (DB) No.1281 of 2017 are
allowed. Pending interlocutory applications, if any, stand disposed of.
25. Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
Per Gautam Kumar Choudhary, J. - I agree
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 26th September, 2024
NAFR/Kumar/Cp-03
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