Guddu Das vs The State Of Jharkhand
2024 Latest Caselaw 9713 Jhar

Jharkhand High Court

Guddu Das vs The State Of Jharkhand on 27 September, 2024

Author: Ananda Sen

Bench: Ananda Sen

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. Appeal (DB) No.203 of 2017

[Against the Judgment of conviction dated 05.12.2016 and order of sentence dated
07.12.2016 passed by learned 2nd Addl. Sessions Judge cum Fast Track Court (Rape
Cases), Deoghar, in S.T. No.43 of 2010 (arising out of Madhupur P.S. Case No.140
of 2009 & G.R. No.311 of 2009)].

     1.Guddu Das, S/o Fulo Das
     2.Lakhia Devi, W/o Fulo Das
     3.Kulo Das @ Fulo Das, S/o Late Ashin Das
     All residents of Salaiya Bhagawanpur, P.O. & P.S. Madhupur, District-
     Deoghar                        ....                 Appellants
                               Versus
     The State of Jharkhand.        .....                Respondent
                                 PRESENT
                   SRI ANANDA SEN, J.

SRI GAUTAM KUMAR CHOUDHARY, J.

.....

     For the Appellants        :    Mr. Rajiv Lochan, Advocate
     For the State             :    Mrs. Nehala Sharmin, SPP
                                      .....
Dated 27.09.2024.

By Court:- Heard learned counsel for the appellants and learned counsel for the State.

1. The instant Criminal appeal is directed against the Judgment of conviction dated 05.12.2016 and order of sentence dated 07.12.2016 passed by learned 2nd Addl. Sessions Judge cum Fast Track Court (Rape Cases), Deoghar, in S.T. No.43 of 2010 (arising out of Madhupur P.S. Case No.140 of 2009 & G.R. No.311 of 2009)] whereby the appellants have been convicted under Section 304(B) IPC and appellant no.1 has been sentenced to undergo RI for ten years and appellant nos.2 and 3 have been sentenced to undergo RI for seven years.

2. Informant is the father of the deceased. As per fardbeyan his second daughter (Kunti Devi) was married to appellant/accused. After marriage, on Karma festival, she came to her house for one month and thereafter she went to her in-laws house. Her daughter had complained about the ill-treatment in her matrimonial home. She was asked to live in the old house. On 11.07.2009 at about 4:30, he received a message on telephone that her daughter had died. On this information, informant along with his wife and others as well as some villagers reached at her matrimonial home. On being inquired about the cause of death from the accused persons they said that she had got electrocuted. A black mark around the neck of the dead body was seen. It is alleged that his

son in law was repeatedly asking Palang (Bed), CD- Player and utensils. Allegation of dowry death has been made.

3. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Madhupur P.S. Case No.140 of 2009 under Sections 304B /34 IPC against the named accused persons.

4. After investigation, police submitted charge-sheet under Section 304B/34 of the IPC against all the three accused persons and cognizance of the offence has been taken since the accused persons did not plead their guilt and they have been put on trial.

5. In order to prove the case, 10 witnesses have been examined on behalf of the prosecution in this case who are as P.W.1 Kaushalya Devi, P.W.2 Kusmi Devi, P.W.3 Pappu Das, P.W.4 Meena Devi, P.W. 5 Sushil Das, P.W. 6 Amrit Das, P.W. 7 Kumhlal Das, P.W. 8 Munna Das (Informant), P.W. 9 Dhananjay Singh and P.W. 10 Dr. Anand Vardhan.

6. Apart from the oral evidences, several documents were also exhibited which are as follows: -

(i) Ext.1- Signature o Pappu Das on written report.

(ii) Ext-1/1 Signature of Kumhlal Das on written report.

(iii) Ext-1/2 Signature of Amrit Das on written report.

(iv) Ext-1/3 Signature of informant on written report.

(v) Ext-2 Fardbeyan.

(vi) Ext-2/1 Fardbeyan.

(vii) Ext-3 Inquiry Report.

7. The Trial Court, after recording the of the statement of the accused persons under Section 313 Cr.P.C., convicted the appellants for the offence punishable under Section 304 B of the Indian Penal Code and sentenced the appellant no. 1 to undergo for R.I. for 10 years and for the rest of the appellants, RI for seven years.

8. Learned counsel appearing on behalf of the appellants submits that the basic ingredients of Section 304B of the Indian Penal Code have not been established by the prosecution. It is argued that the onus would only shift after the basic ingredients have been proved by the prosecution and if the prosecution failed to prove the basic ingredients of Section 304B of the Indian Penal Code, accused are not obliged legally to discharge the onus under Section 113B of the Evidence Act. He further submits that independent witnesses, P.W.1 and P.W. 2 have not supported the case of the prosecution and have been declared hostile. All the other material witnesses are interested witnesses and cannot be

relied upon. The I.O. has not found any ligature mark on the neck of the deceased. The learned Trial Court has not considered the statement of P.W. No. 3, who stated that relationship of the appellant(s) and the deceased was cordial. On these grounds, learned counsel for the appellants prays to set aside the impugned judgment of conviction and sentence.

9. He also argues that there are no grounds to enhance the sentence of the appellants and also informs that all the appellants have already served the sentence and have been released.

10. Learned counsel for the State opposes the prayer and submits that prosecution has established all the ingredients of 304B of the Indian Penal Code. The death has taken place within seven years of the marriage which admittedly is unnatural. There is demand of dowry and torture soon before death. The accused have not discharged the onus under Section 113B of the Evidence Act. Thus, there is no ground to acquit the appellants as the presumption of guilt is against them.

11. After going through records and materials on record, we find that the conviction of the appellants has been recorded under Section 304B of the IPC.

12. Section 304B of the IPC reads as follows: -

[304-B. 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 purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 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. ] Ingredients of Section- In order to seek conviction under section 304-B, I.P. Code against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death- ...................

The expression "soon before her death" used in the substantive S. 304-B, I.P. Code and S. 113-B of the Evidence Act is present with the idea of proximity test.

13. From the perusal of the aforesaid provision of law, we find that there are three basic ingredients which need to be proved or established by the prosecution. These ingredients are: -

(i) Death of the victim should have been within seven years from marriage.

(ii) The death should be otherwise in normal circumstance or by burns injuries.

(iii) There should be demand of dowry and torture soon before her death.

14. There is no dispute with the legal proposition urged on behalf of the appellant(s) that Section 113 B of the Evidence Act will apply only when the foundational facts under Section 304B are proved. Only in the situation where the prosecution has proved these conditions, the onus shifts upon the accused person(s) in terms of Section 113B of the Evidence Act to prove their innocence.

Section 113B of the Evidence Act reads as follows:-

[113-B. 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.

15. Now, let us analyse as to whether the prosecution has been able to establish the aforesaid conditions enshrined under Section 304B of the Indian Penal Code. P.W. 8 is the informant and father of the deceased. He stated that on 27.05.2008, the deceased was married with the appellant no. 1. P.W. 6 is the brother of the deceased who stated in his evidence that 3 years prior to the death, the deceased got married to the appellant no.1. P.W. 7 is the uncle of the deceased who also stated that marriage had taken place on 27.05.2008. There is no rebuttal on behalf of the defence on the aforesaid evidence. Indisputably, as per the prosecution case and also from the medical evidence, we find that the prosecution has proved that deceased died on 11.07.2009.

Thus, the prosecution has been able to prove that the deceased died within one year two months from the date of marriage which is within the seven years period as prescribed by law to attract provisions of Section 304B of the Indian Penal Code.

16. The next question which would fall for consideration is whether the prosecution has been able to prove that the deceased died otherwise than in normal circumstance. To prove the aforesaid point, P.W. 10 is the best witness and he is the doctor, who conducted the post-mortem examination of the deceased, on external examination he found the following injuries: -

Neck-Three dard brown bruise in the front of the neck on and above the thyroid cartilage 1/4 inch apart of each other measuring 6 inch long and 1/6 inch broad, 5 ½ inch long and 1/6 inch broad, and 6 inch long and ¼ inch broad.

Internal Examination: -

On dissection of the bruise on the neck-muscles and subcutaneous tissue congested at places. Lariges and trachia congested hyoid bone fractured. Brain and Meninges congested chest both lungs congested, hurt both chamber full of blood. Abdomen- Liver, spleen and both kidneys-congested. Stomach about 150 ml of semi mucoid gastric juice, intestine flued gas and facal metal urinary blooder about 50 ml of urine. Uterus-non gravit.

17. He has opined that cause of death was asphyxia due to strangulation. In cross-

examination he also stated that on physical examination, he also found fracture. The evidence of the Doctor clearly suggests that deceased died unnatural death which definitely is otherwise than in a normal circumstance. Thus, the prosecution has also established and proved the aforesaid fact.

18. On the issue of demand of dowry and torture soon before her death, we find that P.W.8 had stated that after 4-5 months of the marriage, demand of dowry started and the demand was of bed, utensils etc. She was also assaulted by the husband. This witness has stated that he tried to reason with the appellant no.1 who then ensured that he will keep his wife properly. Thereafter the husband had taken the girl with her. On 11.07.2009, she was done to death. P.W.7 is the uncle of the deceased. He also stated that the deceased told him that the husband, mother-in-law as well as father-in-law had tortured her for the demand of cot and C.D. player. P.W.6 who is the brother of the deceased also stated in the same manner.

19. From the evidence on record, we find that the prosecution has been able to establish the fact that there was demand of dowry coupled with torture soon before the death. When all the three ingredients have been established and proved by the prosecution, in terms of Section 113B of the Indian Evidence Act, the onus shifts upon the appellants/ accused to prove their innocence.

20. We find that there is no defence witness examined by the appellants and in the statement recorded under Section 313 Cr. P. C., they have not taken any defence rather they have simply denied the circumstances appearing against them.

21. Thus, we find that the appellants have not discharged their burden to prove their innocence, in terms of Section 113B of the Indian Evidence Act. The statute under Section 304B IPC read with Section 113B of Evidence Act, attracts presumption against the accused until and unless it is disproved by them in terms of Section 113B of the Indian Evidence Act. There is a deeming provision in Section 113B of Evidence Act also. Since the appellants have failed to discharge their onus, they are liable to be guilty under Section 304B

IPC and thus, we find that the learned Trial Court has correctly convicted the appellants for the offence punishable under Section 304B IPC.

22. So far as the sentence is concerned, though the appellants have been noticed for enhancement of the sentence, but considering the age of the appellant nos.2 and 3 as 63 years and 68 years respectively at present and they have already served sentenced as imposed, we are not inclined to enhance the sentence.

23. So far as appellant no.1 is concerned, it has been submitted that he has a lready served sentence for the period of ten years as imposed and has been released, as such, taking a lenient view, we are not enhancing the sentence.

24. Accordingly, the instant Criminal Appeal (DB) stands dismissed. The Judgment passed by learned 2nd Addl. Sessions Judge cum Fast Track Court (Rape Cases), Deoghar, in S.T. No.43 of 2010 (arising out of Madhupur P.S. Case No.140 of 2009 & G.R. No.311 of 2009)] is approved.

Let T.C.R. along with a copy of this judgment be sent to the court concerned at once.

(Ananda Sen, J.)

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated. 27.09.2024.

sandeep/Pawan