Jharkhand High Court
Krishna Chandra Mahto @ Krishna Mahto vs The State Of Jharkhand on 23 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.552 of 2018
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(Against the judgment of conviction dated 17.05.2017 and order
of sentence dated 19.05.2017 passed by learned District &
Sessions Judge-I, Seraikella, Kharsawan in Sessions Trial No.
191 of 2012)
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Krishna Chandra Mahto @ Krishna Mahto, aged about 41
years, son of late Ghasi Ram Mahto, resident of Mauladih,
P.O and P.S- Kharsawan, District- Saraikella- Kharsawan
... Appellant
Versus
The State of Jharkhand ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Rajeev Ranjan Tiwary, Advocate
: Mr. Ranjit Kumar Tiwary, Advocate
For the Respondent : Mr. Saket Kumar, A.P.P.
.........
C.A.V. on 20/03/2025 Pronounced on 23/04/2025
Per Sujit Narayan Prasad, J.
1. The instant appeal, has been filed under Section 374(2) of
the Code of Criminal Procedure, against the judgment of
conviction dated 17.05.2017 and order of sentence dated
19.05.2017 passed by learned District & Sessions Judge-I,
Seraikella-Kharsawan in Sessions Trial No. 191 of 2012 whereby
and whereunder the present appellant had been convicted for the
offence punishable under Section 304-B and 34 of the Indian
Penal Code and has been directed to undergo Rigorous
imprisonment for life under Section 304-B.
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2. This Court, before proceeding to examine the legality and
propriety of the judgment of conviction and order of sentence,
deems it fit and proper to refer the background of institution of
prosecution case. The prosecution story in brief as per the
allegation made in the First Information Report reads hereunder
as :-
As per the written report of the informant namely P.W.-4,
who is brother of the deceased and the informant of the instant
case, the case of prosecution is like that the marriage of the
informant's sister was solemnized with the accused/appellant on
12.06.2012 and after 15 days of the marriage, the
accused/appellant and his family members started torturing her
(deceased) to bring money of Rs. 20,000/ and a motorcycle from
her parent's house but she failed to fulfill their illegal demands.
3. It was alleged that she was assaulted very often. The
brother(informant) got information from one Vijay Mahato that his
sister was burnt alive after putting clothes in her mouth by the
accused persons. On this information, the informant went to the
house of his sister and found the dead body of his sister lying
there in burn condition and clothes were gagged in her mouth.
4. On the basis of written report of the informant, an FIR being
Kharswan P.S. Case No. 50/2012 dated 22.07.2012 was
instituted for the offences under section 498A/304(B)/34 of the
I.P.C against the accused persons including the present
appellant. Thereafter investigation of the said case had been
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started by the concerned investigating officer (I.O) who had found
the case to be true against the present accused and one Dulali
Mahato and thereafter charge-sheet had been submitted against
them for the offence under sections 304(B)/34 of I.P.C
5. Accordingly, the cognizance of the offence was taken and the
case was committed to the Court of Sessions. The charge was
explained to the accused persons and consequently charges
under sections 304(B)/34 of I.P.C was framed against the accused
persons including present appellant to which they pleaded not
guilty and claimed to be tried.
6. In course of trial, the prosecution has examined altogether
09 witnesses namely P.W.1-Baikunth Mahato, P.W.2- Fagu
Mahato, P.W.3- Bijay Mahato @ Vijay Kr. Mahato, P.W.4- Tika
Charan Mahato, P.W.5- Kailash Mahato, P.W.6- Ramchandra
Mahato, P.W.7- Rupatan Mahato, P.W.8- Dr. Md. Kalique and
P.W.9- Animesh Kumar Gupta.
7. The statement of the present appellant was recorded under
Section 313 of the Criminal Procedural Code, in which he denied
from the prosecution evidence and claimed himself to be
innocent.
8. The trial Court, after recording the evidence of witnesses,
examination-in-chief and cross-examination, found the charges
levelled against the present appellant and others proved beyond
all reasonable doubts. Accordingly, the appellant had been found
guilty and convicted for the offence punishable under Section
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304-B and 34 of I.P.C and as such, convicted and sentenced vide
impugned judgment of conviction dated 17.05.2017 and order of
sentence dated 19.05.2017.
9. The aforesaid order of conviction and sentence is subject
matter of instant appeal.
Submission of the learned counsel for the appellant:
10. Learned counsel for the appellant has submitted that the
impugned Judgment of conviction and Order of sentence passed
by the Trial Court cannot be sustained in the eyes of law.
11. The following grounds have been taken by the learned
counsel for the appellant in assailing the impugned judgment of
conviction: -
(i) The Learned trial court has failed to appreciate that not
a single eye witness has come forward from the village to
support the prosecution case with regard to demand of
dowry or burning of the deceased by accused or by the
mother-in-law of the deceased.
(ii) The learned court has not taken into consideration the
material contradiction in the deposition of the prosecution
witnesses though there is serious contradiction with regard
to manner of occurrence, nature of occurrence and place of
occurrence.
(iii) The appellant has been falsely implicated in this case
and there are no cogent materials against the appellant
regarding any illegal demand made by him and on the
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aforesaid premise, has submitted that the impugned
judgment needs to be interfered with.
12. The learned counsel for the appellant, based upon the
aforesaid grounds, has submitted that the trial court has not
taken into consideration the aforesaid facts, as such, the
impugned judgment is not sustainable in the eyes of law and
requires interference.
Submission of the learned counsel for the respondent state:
13. Per Contra, learned Addl. Public Prosecutor appearing for
the respondent-State has taken the following grounds in
defending the impugned judgment of conviction/sentence: -
i. That there is a complete chain of circumstances established
against this accused that at the relevant time of occurrence,
he was seen along with her mother at the place of
occurrence i.e. house of this accused, where he had caused
burn injuries to the deceased for the demand of the cash
money and motorcycle from her parents and aforesaid fact
has been substantiated by the medical evidence wherein it
has come that the deceased was died due to extensive burn
injuries.
ii. Further the I.O has also found some struggle marks over
the surface and also burnt ashes at place of occurrence and
further in the inquest report it has been mentioned that
burn injuries on person of the deceased.
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14. Learned A.P.P., based upon the aforesaid grounds, has
submitted that the learned trial Court after taking into
consideration the testimony of the prosecution witnesses more
particularly the Investigating Officer, since, has passed the
impugned judgment of conviction, therefore, the same requires no
interference.
Analysis
15. We have heard learned counsel for the parties, perused the
material available on record more particularly the testimony of
the witnesses and the finding recorded by learned trial Court.
16. This Court, before going into the legality and propriety of the
impugned judgment of conviction/sentence, deems it fit and
proper to refer the testimony of prosecution witnesses.
17. P.W-1 Baikunth Mahato who is resident of village
Mauladih, has stated that the occurrence took place about three
years ago and on that day, he was in his village and when
ploughing his field, the officer-in-charge Anil Yadav called him
through his son Vikash Mahato and when he reached in the
house of Krishna Mahato, the police showed him the dead body
of the wife of the accused Krishna Mahato.
18. He has further testified that thereafter inquest report was
prepared and he also put his signature as a witness on the same
and exhibited the signature on the carbon copy of the inquest
report as Ext.-1. He also identified both the accused Krishna and
Dulali.
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19. P.W-2 Fagu Mahato, who is also villager of Krishnapur, has
stated that on dated 12.06.2012 the occurrence took place and,
on that day, he was on duty at D.C Office, Gaurangdih. He
received a phone call saying that his sister has died due to burn
injuries. He further testified that his sister's name was Kalpana
and the aforesaid news was informed by one villager Vijay Mahato
of Mauladih village to him, then on this information he reached
at Mauladih.
20. He further deposed that in the house of Krishna Mahato he
found some smoking there and when he went inside, he found his
sister was lying in burnt condition and clothes were kept in her
mouth. He had further stated that he came to know that Krishna
Mahato had demanded Rs.20,000/- and one motorcycle and due
to his non-fulfillment of demand, he burnt his sister. This witness
has identified his signature and signature of informant Tika
Charan Mahato on the written report and exhibited the same as
Ext.-2 and also identified the accused before the court.
21. During cross-examination, this witness has stated at
paragraph-5 that he had not seen the occurrence from his own
eyes but he had seen some smoking coming out from the house
of accused which was a Khaprail house and in the room, in which
the accused and deceased were residing, his sister was lying dead
in burnt condition. In para-7 he has stated that he had not seen
any injuries on the dead body of his sister but he found burn
injuries. He further testified that before marriage of his sister with
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Krishna Mahato, the informant's brother Tika Charan Mahato
has knowledge about earlier two marriage of the accused Krishna
Mahato and earlier also Krishna Mahato had assaulted the wives
and knowing this fact, he married his sister with accused.
Further, he denied the suggestion of the defence in para 8 that
the deceased herself has set her on fire and no demand was made
by the accused nor any clothes were kept in her mouth which was
extracted later on.
22. P.W-3 Bijay Mahato has also supported the prosecution
story in his examination-in-chief and stated that the occurrence
took place about three years ago and at that time, he was in
Barabombe, then he received a phone call from village that house
of Krishna Mahato caught fire, then he told on phone for opening
the door. He has further stated that wife of Krishna Mahato had
died due to burn and when he reached at the house of Krishna
Mahato, he saw wife of Krishna Mahato was burnt and died.
23. He has further testified that police came there and prepared
the inquest report and he had also put his signature on the
carbon copy of the inquest report which is marked as Ext.1/1. At
para-2 he has stated that villagers told him that Krishna Mahato
was torturing the deceased earlier also and attempted to murder
her. This witness had given his statement before the police and
had stated about the torture and burnt by the accused.
24. This witness in para-3 of his testimony has admitted this
fact that Krishna was married with two other ladies before the
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marriage of his sister but they had taken divorce and he also
stated about the relationship of earlier wives with the accused
which was also not good. In para-4 he has stated that when he
reached at the house of the accused, he found the door of the
house was open and mouth of the dead body was gagged with
clothes and the police had also seized the said clothes and
accordingly the seizure-list had been prepared and upon the
same, peoples who were present there had put their signature but
he had not put his signature.
25. Further, in para-5 he has stated that he saw the dead body
in burnt condition and the clothes which were worn by the
deceased found in burnt condition. This witness had denied the
suggestion of the defence that the accused and his mother have
not tortured the deceased and the deceased herself set her on fire
and died and he also denied the suggestion of the defence that he
has falsely stated about the occurrence.
26. P.W.4 Tika Charan Mahato who is informant and brother
of the deceased has stated that he had solemnized the marriage
of his sister with accused Krishna Chandra Mahato on dated
12.06.2012 and after marriage, her sister went to her sasural in
the house of above accused where they started to raise demand
of Rs.20000/- cash and one motorcycle. He further testified that
on 21.07.2012 on call by his sister, he went to her in-laws house
of Mauladih where he saw that the accused and his mother were
assaulting his sister. Thereafter, when the informant was
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returning in a way, he heard about the occurrence by one Bijay
Kumar Mahato regarding assault made by accused and his
mother to the deceased and they set her on fire. He had deposed
that on this information, when he reached there, he found some
smoke coming out from her room and when he entered into her
bed-room, the dead body was lying on the floor in burnt condition
and saw that the accused and his mother were trying to remove
the cloths which were gagged in the mouth of the deceased and
on seeing him, they fled away.
27. During cross-examination, at length from the defence side,
he has stated in para-4 that his house is situated about seven to
eight kilometers from the village Mauladih and on 21.07.2012 he
went to Mauladih by his bicycle and on that evening the accused
had also assaulted his sister. Further he stated in para 5 that at
the place of occurrence where the assault took place, the floor was
made with mud and he told the accused that he will fulfill their
demands and for that he needs some time but he denied the same.
28. P.W-5 Kailash Mahato, father of the deceased has also
supported the prosecution story in his examination-in-chief that
his daughter Anjana Mahato was the wife of Krishna Mahato and
their marriage was solemnized on 12.6.2012 and after marriage,
she was residing in her in-laws house and on 22.7.2012 when he
went for his labour work at Nayadih, his son and one villager
Rupatan came there and they took him in the house of accused.
He had further testified that when he reached at the place of
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occurrence, he saw that his daughter was lying on floor and her
mouth was gagged with clothes i.e. Saree, and his daughter was
lying dead. He had further testified that he also found some burnt
straw there. He deposed that police came there and took the dead
body of his daughter and accused Krishna and Dulali were not
present there. This witness has been declared hostile by the
prosecution.
29. P.W-6 Ram Chandra Mahato is the villager of Krishnapur
and he has been declared hostile as he has not supported the
occurrence.
30. P.W-7 Rupatan Mahato is the villager of Krishnapur and he
has also been declared hostile. He has stated in his examination-
in-chief that he knew the deceased Anjana Mahato but he does
not know her husband, Krishna Mahato. He has testified that he
has no knowledge about the said occurrence
31. P.W-8 Dr. Md. Khalique has stated in his examination-in-
chief that on 22.07.2012, he was posted as Medical Officer, at
Sadar Hospital, Seraikella and on that day, at 4:00 PM he
conducted an autopsy upon the dead body of Anjana Mahato aged
about 26-27 years female, W/O Krishna Mahato of Village
Mouladih and found the following anti mortem injuries on her
body: -
1. External Findings: 1. Superficial burn injuries on the
whole of the body.
2. Singeing of hair at both eyebrows present,
3. There was blackening of whole body,
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4. A piece of cloth was found in the mouth,
5. One vesicle in upper and later part of right arm, Size 1" x
½" x ½" full with fluid present, slight pugilistic posture
present.
Internal Findings:
1. Trachea- few sooty carbon particle present, 2. Heart - All
chamber full with red blood, 3. Lungs - Both lungs,
congested, edematous- Blackish, oozing of blood on cut, 4.
Abdomen -Stomach little quantity of water present. Intestine,
liver, spleen, Kidney - Nad. Urinary Bladder was empty.
Uterus- empty.
Opinion: Cause of Injury Burn
Cause of Death - Shock due to extensive burn,
Time since death - about 24 hours.
32. This witness has also identified and exhibited his
handwriting and signature over the postmortem report marked as
Ext.-3. This witness could not be cross-examined due to non-turn
up of the counsel on behalf of the accused and the accused, had
also declined to cross-examine.
33. P.W-9 Animesh Kumar Gupta, I.O. of this case, has stated
in his examination-in-chief that on 22.07.2012 he was posted as
Officer-in-Charge of Kharswan P.S and on that day, at about
13:30 hours he received a written information from the informant
Tikacharan Mahato and on the basis of same, a case was
registered and he himself taken the charge of investigation of the
instant case and exhibited the endorsement on the written report
of the informant as Ext.2/1 and the formal F.I.R as Ext.-4. He has
further stated that during investigation, he verified the place of
occurrence at 13:45 Hours and he established the place of
occurrence at village Mauladih, in the house of the accused
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Krishna Chandra Mahato. He had also prepared the map of place
of occurrence which is mentioned in the case diary at para-3 and
when he entered into the room of the deceased, he found that the
deceased was lying in burnt condition and one cloth was gagged
in her mouth. He also found some broken bangles in semi burnt
condition in the hands of the deceased and also found some sign
of struggle on the ground which is made of soil.
34. Further, he also found Bichali (straw) in western side at the
place of occurrence. He had prepared the inquest report of the
deceased at the place of occurrence and exhibited the carbon copy
of the same as Ext.-5. He further recorded re-statement of the
informant and other witnesses and arrested the accused Krishna
Chandra Mahato and his mother Dulali Mahato and forwarded
them before the court. He has further stated that he had also
recorded the statements of the first wife of the accused, namely,
Paro Mahato, wherein she had stated that her husband
(accused/appellant herein) gave divorce before Panchayat to her
and he solemnized third marriage with the deceased who was
murdered. She had also stated about demand of cash amount
from her parents' house for which several times Panchayati was
held and after panchayati she left the house of the present
appellant/accused and started residing in her parents' house.
35. This witness has also received the P.M report and
supervision note and submitted charge sheet against the accused
Krishna and Dulali u/s 304B/34 of the I.P.C and he had also
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identified the accused before the court. Further, in para-11 he
has stated that during investigation, he recorded the statement of
Ram Chandra Mahato wherein he had sated that marriage of
deceased was solemnized with the accused Krishna Mahato and
Krishna Mahato and his mother Dulali Mahato had demanded
Rs.20,000/- and a motorcycle and due to non-fulfillment of their
demand, they assaulted the deceased and set her on fire. Further
he had recorded the statement of witness Rupatan Mahato and
during his statement, he also supported this fact that Anjana
Mahato (deceased) was murdered by her husband Krishna
Chandra Mahato and her mother-in-law for demand of
Rs.20,000/- and a motorcycle as dowry and due to that reason,
they set her on fire after assaulting her at Mauladih.
36. After due appreciations of evidences as mentioned above the
learned trial court has found the charge to be proved beyond
reasonable doubt against the appellant and accordingly,
convicted the appellant under Section 304-B/34 of the IPC,
against which the instant appeal has been preferred.
37. This Court, in order to appreciate the submissions advanced
on behalf of the appellant with respect to the culpability of the
appellant, for commission of offence under Section 304-B of the
Indian Penal Code vis-à-vis the evidences adduced on behalf of
the parties, deems it fit and proper to refer certain legal provisions
and judicial pronouncements in context of contention raised by
the appellant.
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38. At this juncture, it is pertinent to analyses the law on dowry
death. Section 304-B IPC, which defines, and provides the
punishment for dowry demand, reads as under:
"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 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."
39. From perusal of the aforesaid provision, it is evident that
Section 304-B (1) defines "dowry death" of a woman. It provides
that "dowry death" is where death of a woman is caused by
burning or bodily injuries or occurs otherwise than under normal
circumstances, within seven years of 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, in
connection with demand for dowry. Sub-clause (2) provides for
punishment for those who cause dowry death.
40. Thus, it is evident that there are three conditions in the
aforesaid statute and if those three conditions are fulfilled then
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the case will come under the purview of Section 304-B. Three
conditions which culled out from section 304-B are as follows:
i. The death caused by burn or bodily injury or occurs
otherwise within under normal circumstance.
ii. Death was 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.
41. It needs to refer herein that in order to sustain the conviction
under Section 304B of the IPC, it is mandatory to establish that
soon before death, the victim was subjected to cruelty or
harassment by her husband or any relative of her husband in
connection with any demand for dowry and death caused by burn
or bodily injury or occurs otherwise within under normal
circumstance within seven years of victim's marriage.
42. In the case of Major Singh v. State of Punjab, (2015) 5
SCC 201 a three-Judge Bench of the Hon'ble Apex Court has laid
down the guideline wherein it has been specifically observed that
in order to sustain the conviction under Section 304-B IPC,
cruelty or harassment is shown to have been meted out to the
woman soon before her death. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under :
"10. To sustain the conviction under Section 304-B IPC, the
following essential ingredients are to be established:
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(i) the death of a woman should be caused by burns or
bodily injury or otherwise than under a "normal
circumstance";
(ii) such a death should have occurred within seven years
of her marriage;
(iii) she must have been subjected to cruelty or harassment
by her husband or any relative of her husband;
(iv) such cruelty or harassment should be for or in
connection with demand of dowry; and
(v) such cruelty or harassment is shown to have been meted
out to the woman soon before her death."
43. It needs to refer herein that the cruelty or harassment differs
from case to case. Cruelty can be mental or it can be physical.
Mental cruelty is also of different shades. It can be verbal or
emotional like insulting or ridiculing or humiliating a woman. It
can be depriving her of economic resources or essential amenities
of life. The list is illustrative and not exhaustive.
44. Physical cruelty could be actual beating or causing pain and
harm to the person of a woman. Every such instance of cruelty
and related harassment has a different impact on the mind of a
woman. Some instances may be so grave as to have a lasting
impact on a woman. Some instances which degrade her dignity
may remain, etched in her memory for a long time.
45. The phrase "soon before" as appearing in Section 304-B IPC
cannot be construed to mean "immediately before". It is a relative
term which is required to be considered under specific
circumstances of each case and no straitjacket formula can be
laid down by fixing any time-limit. In relation to dowry deaths, the
circumstances showing the existence of cruelty or harassment to
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the deceased are not restricted to a particular instance but
normally refer to a course of conduct. Such conduct may be
spread over a period of time. Proximate and live link between the
effect of cruelty based on dowry demand and the consequential
death is required to be proved by the prosecution
46. The aforesaid position was emphasized by the Hon'ble Apex
Court in the case of Satbir Singh v. State of Haryana, (2021)
6 SCC 1 wherein it has been held which reads as under:
"15. Considering the significance of such a legislation, a
strict interpretation would defeat the very object for which
it was enacted. Therefore, it is safe to deduce that when the
legislature used the words, "soon before" they did not mean
"immediately before". Rather, they left its determination in
the hands of the courts. The factum of cruelty or
harassment differs from case to case. Even the spectrum of
cruelty is quite varied, as it can range from physical, verbal
or even emotional. This list is certainly not exhaustive. No
straitjacket formulae can therefore be laid down by this
Court to define what exactly the phrase "soon before"
entails.
17. Therefore, courts should use their discretion to
determine if the period between the cruelty or harassment
and the death of the victim would come within the term
"soon before". What is pivotal to the above determination,
is the establishment of a "proximate and live link" between
the cruelty and the consequential death of the victim."
47. When the prosecution shows that "soon before her death
such woman has been subjected to cruelty or harassment for, or in
connection with, any demand for dowry", a presumption of
causation arises against the accused under Section 113-B of the
Evidence Act. Section 113-B of the Evidence Act reads as under:
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"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 has 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 304-B of
the Indian Penal Code (45 of 1860)."
48. It is evident from the aforesaid provision that the word
"shall" has been stipulated therein which provides mandatory
application on the part of the court to presume that death had
been committed by the person who had subjected her to cruelty
or harassment in connection with any demand of dowry and as
such onus lies on the accused to rebut the presumption and in
case of Section 113-B relatable to Section 304-B IPC, the onus to
prove shifts on the accused.
49. The Hon'ble Apex Court while relying on the provisions of
Section 113-B of the Evidence Act, 1872 (for short "the Evidence
Act") and Section 304-B IPC, where the words "soon before her
death" find mention, the following observations have been made
in the case of Surinder Singh v. State of Haryana, (2014) 4 SCC
129 :
"17. Thus, the words "soon before" appear in Section 113-B
of the Evidence Act, 1872 and also in Section 304-BIPC. For
the presumptions contemplated under these sections to
spring into action, it is necessary to show that the cruelty or
harassment was caused soon before the death. The
interpretation of the words "soon before" is, therefore,
important. The question is how "soon before"? This would
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obviously depend on the facts and circumstances of each
case. The cruelty or harassment differs from case to case.
It relates to the mindset of people which varies from person
to person. Cruelty can be mental or it can be physical.
Mental cruelty is also of different shades. It can be verbal
or emotional like insulting or ridiculing or humiliating a
woman. It can be giving threats of injury to her or her near
and dear ones. It can be depriving her of economic
resources or essential amenities of life. It can be putting
restraints on her movements. It can be not allowing her to
talk to the outside world. The list is illustrative and not
exhaustive. Physical cruelty could be actual beating or
causing pain and harm to the person of a woman. Every
such instance of cruelty and related harassment has a
different impact on the mind of a woman. Some instances
may be so grave as to have a lasting impact on a woman.
Some instances which degrade her dignity may remain,
etched in her memory for a long time. Therefore, "soon
before" is a relative term. In matters of emotions we cannot
have fixed formulae. The time-lag may differ from case to
case. This must be kept in mind while examining each case
of dowry death.
18. In this connection we may refer to the judgment of this
Court in Kans Raj v. State of Punjab [Kans Raj v. State of
Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this
Court considered the term "soon before". The relevant
observations are as under : (SCC pp. 222-23, para 15)
'15. ... "Soon before" is a relative term which is required
to be considered under specific circumstances of each
case and no straitjacket formula can be laid down by
fixing any time-limit. This expression is pregnant with the
idea of proximity test. The term "soon before" is not
synonymous with the term "immediately before" and is
opposite of the expression "soon after" as used and
understood in Section 114, Illustration (a) of the Evidence
Act. These words would imply that the interval should
not be too long between the time of making the
statement and the death. It contemplates the reasonable
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time which, as earlier noticed, has to be understood and
determined under the peculiar circumstances of each
case. In relation to dowry deaths, the circumstances
showing the existence of cruelty or harassment to the
deceased are not restricted to a particular instance but
normally refer to a course of conduct. Such conduct may
be spread over a period of time. If the cruelty or
harassment or demand for dowry is shown to have
persisted, it shall be deemed to be "soon before death" if
any other intervening circumstance showing the non-
existence of such treatment is not brought on record,
before such alleged treatment and the date of death. It
does not, however, mean that such time can be
stretched to any period. Proximate and live link between
the effect of cruelty based on dowry demand and the
consequential death is required to be proved by the
prosecution. The demand of dowry, cruelty or
harassment based upon such demand and the date of
death should not be too remote in time which, under the
circumstances, be treated as having become stale
enough.'
Thus, there must be a nexus between the demand of
dowry, cruelty or harassment, based upon such demand
and the date of death. The test of proximity will have to
be applied. But, it is not a rigid test. It depends on the
facts and circumstances of each case and calls for a
pragmatic and sensitive approach of the court within the
confines of law."
(emphasis supplied)
50. Further, the Hon'ble Apex Court in the case of State of M.P.
v. Jogendra, (2022) 5 SCC 401 has pithily summarized the law
on Section 304-BIPC and Section 113-B of the Evidence. For
ready reference the relevant paragraph is being quoted as under:
"17. In the above context, we may usefully refer to a recent
decision of a three-Judge Bench of this Court in Gurmeet
Singh v. State of Punjab [Gurmeet Singh v. State of Punjab,
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(2021) 6 SCC 108 : (2021) 2 SCC (Cri) 771] that has restated
(at SCC pp. 111-12, para 9) the detailed guidelines that
have been laid down in Satbir Singh v. State of
Haryana [Satbir Singh v. State of Haryana, (2021) 6 SCC 1
: (2021) 2 SCC (Cri) 745] , both authored by N.V. Ramana,
C.J. relating to trial under Section 304-BIPC where the law
on Section 304-BIPC and Section 113-B of the Evidence Act
has been pithily summarised in the following words : (Satbir
Singh case [Satbir Singh v. State of Haryana, (2021) 6 SCC
1 : (2021) 2 SCC (Cri) 745] , SCC p. 13, para 38)
"38.1. Section 304-B IPC must be interpreted keeping in
mind the legislative intent to curb the social evil of bride
burning and dowry demand.
38.2. The prosecution must at first establish the existence
of the necessary ingredients for constituting an offence
under Section 304-BIPC. Once these ingredients are
satisfied, the rebuttable presumption of causality,
provided under Section 113-B of the Evidence Act operates
against the accused.
38.3. The phrase "soon before" as appearing in Section
304-BIPC cannot be construed to mean "immediately
before". The prosecution must establish existence of
"proximate and live link" between the dowry death and
cruelty or harassment for dowry demand by the husband
or his relatives.
38.4. Section 304-BIPC does not take a pigeonhole
approach in categorising death as homicidal or suicidal
or accidental. The reason for such non-categorisation is
due to the fact that death occurring "otherwise than
under normal circumstances" can, in cases, be homicidal
or suicidal or accidental."
(emphasis in original and supplied)
51. In the backdrop of the aforesaid discussion of proposition of
law, statute, factual aspect and the submission for learned
counsel for parties, this Court in the instant case is to consider
following issues: -
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(i) Whether the material/evidence as has come in course
of trial is sufficient to attract the offence committed
under Section 304 B of the Indian Penal Code?
(ii) Whether all the prerequisites, as discussed and
referred hereinabove, are available in the instant case
for invoking the provision of Section 304 B of the
Indian Penal Code?
52. Since, the aforesaid issues are inextricably interlinked, the
same are being decided hereinbelow by considering them
together.
53. At this juncture this Court thinks fit to revisit the factual
aspects of the instant case in the backdrop of aforesaid legal
proposition.
54. It is an admitted fact that the marriage between deceased
and the accused was solemnized on 12.06.2012, and the death of
the lady occurred on 22.07.2012 which was one and half month
from the date of marriage. Thus, death of the victim lady was
caused within 7 years of the marriage, therefore one of the
primary and foremost requisites to invoke the provision of 304 B
IPC has been fulfilled herein.
55. Further, with respect to the cause of death, the doctor
(PW 8) has opined that Shock due to extensive burn. Further in
his testimony he had categorically stated that he found singeing
of hair at both eyebrows of the deceased and a piece of cloth was
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found in the mouth of the deceased. Therefore, in the present
case, the deceased victim succumbed to burns. As the death was
relatable to burn injuries within seven years of marriage, it clearly
satisfies the first two ingredients of the offence.
56. Further it needs to refer herein that most of the witnesses
who had seen the dead body of victim has stated that mouth of
the victim was gagged by the cloth and the aforesaid fact has been
corroborated by the Doctor (P.W.8) who had found the cloth inside
the mouth of the dead body of victim lady. Thus, also from this
factual aspect, it is evident that the death of victim lady was not
happened due to an accident.
57. Admittedly father of has been declared hostile herein but he
has also supported the fact of gagging of mouth of the deceased
and he had stated that he saw that his daughter was lying dead
and her mouth was gagged with clothes i.e. Saree.
58. It needs to refer herein the ratio rendered by the Hon'ble
Apex Court in the case of Rajesh Yadav Vs. State of U.P., (2022)
12 SCC 200 wherein it has been observed by Hon'ble Supreme
Court that a witness may depose in favour of a party in whose
favour it is meant to be giving his evidence through his chief-
examination, while later on change his view in favour of the
opposite side. Similarly, there would be cases where a witness
does not support the case of the party starting from chief-
examination itself. This classification has to be borne in mind by
the Court. With respect to the first category, the Court is not
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denuded of its power to make an appropriate assessment of the
evidence rendered by such a witness. Even a chief-examination
could be termed as evidence. Such evidence would become
complete after the cross-examination. Once evidence is
completed, the said testimony as a whole is meant for the court
to assess and appreciate qua a fact.
59. Therefore, not only the specific part in which a witness has
turned hostile but the circumstances under which it happened
can also be considered, particularly in a situation where the chief-
examination was completed and there are circumstances
indicating the reasons behind the subsequent statement, which
could be deciphered by the court. It is well within the powers of
the court to make an assessment, being a matter before it and
come to the correct conclusion.
60. further, the evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution chose to treat him
as hostile and cross-examined him. The evidence of such
witnesses cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent their
version is found to be dependable on a careful scrutiny thereof.
61. Further in the case of Neeraj Dutta Vs. State (NCT of Delhi)
(2023) 4 SCC 731 It was held by the Hon'ble Apex Court that
even if a witness is treated as 'hostile' and is cross-examined, his
evidence cannot be written off altogether but must be considered
with due care and circumspection and that part of the testimony
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which is creditworthy must be considered and acted upon. The
Hon'ble Court further laid down that as a matter of prudence to
consider the extent of evidence which is creditworthy for the
purpose of proof of the case. In other words, the fact that a
witness has been declared "hostile" does not result in an
automatic rejection of his evidence. Even, the evidence of a
"hostile witness" if it finds corroboration from the facts of the case
may be taken into account while judging the guilt of the accused.
Thus, there is no legal bar to raise a conviction upon a "hostile
witness" testimony if corroborated by other reliable evidence.
62. Therefore, factum of the gagging of mouth of deceased by the
cloth has been fortified by the testimony of P.W.5 (father of the
deceased) also.
63. Now on the issue of dowry demand and torture soon before
death of the deceased, we find that P.W.2 had stated that he came
to know that Krishna Mahato (appellant herein) has demanded
Rs.20,000/- and one motorcycle and due to non-fulfillment of this
demand, his sister was burnt.P.W.3 at para-2 had stated that
villagers told him that Krishna Mahato was torturing the deceased
earlier also and attempted to murder her.
64. Further, P.W.4 Tika Charan Mahato who is informant and
brother of the deceased had categorically stated that after the
marriage, when her sister had gone to her sasural in the house of
above accused, they started to raise demand of Rs.20,000/- cash
and one motorcycle. He further testified that on 21.07.2012 on
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call by his sister, he went to her in-laws house of Mauladih where
the accused and his mother demanded Rs.20,000/- and a bike
and they also assaulted his sister. In para-4 of his cross-
examination he has stated that his house is situated about seven
to eight kilometers from the village Mauladih and on 21.07.12 he
went to Mauladih by his bicycle and on that evening the accused
has also assaulted his sister by slaps. Further he testified that he
told the accused that he will fulfill their demands and wants some
time but he denied the same.
65. Thus, it is evident from the testimony of the aforesaid
prosecution witnesses i.e. P.W.2, P.W.3 and P.W.4 that the
demand of dowry was there and victim lady was subjected to
cruelty before her death. It needs to refer herein that the
statement of the aforesaid witnesses has been substantiated by
the medical evidence wherein it has come that cloth was found in
the mouth of the deceased which indicates that the victim was
tortured before her death.
66. The prosecution has thus able to prove beyond reasonable
doubt that the death of victim lady was homicidal within seven
years of marriage and soon before her death she was subjected to
dowry demand and torture.
67. On the basis of discussion made herein above it is evident
that the prosecution was able to successfully prove that the death
of the deceased due to burn injuries took place within
approximately one and half month of her marriage. It has further
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been proved that soon before her death she was subjected to
harassment and cruelty pursuant to demands of dowry.
68. Since the ingredients of Section 304-B IPC stand satisfied,
the presumption under Section 113-B of the Evidence Act
operates against the appellant, who are deemed to have caused
the offence specified under Section 304-B IPC.
69. The burden therefore shifts on the accused/appellant to
rebut the aforesaid presumption. Further, in the present case, the
accused/appellant failed to place any evidence on record to prove
that the death was accidental or unconnected with the accused
persons.
70. Therefore, the presumption adumbrated in Section 113-B of
the Evidence Act takes full effect in this particular case, which
has not been rebutted by the appellant-accused herein. The
appellant has failed to make out a case to interfere in the finding
of the learned trial court, convicting the appellant-accused under
Section 304-B IPC.
71. In light of the above findings, after perusing the relevant
material and the evidence available, we find that the trial court
has not committed any error in convicting the appellant under
Section 304-B IPC as the appellant has failed to discharge the
burden under Section 113-B of the Evidence Act.
72. This Court, having discussed the factual aspect and legal
position and considering the finding recorded by the learned trial
Court, is of the view that the prosecution has been able to prove
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the charge beyond all shadow of doubts against the present
appellant, therefore, order impugned requires no interference by
this Court.
73. Accordingly, the instant appeal stands dismissed.
74. Let a copy of the judgment along with the Trial Court
Records be sent back to the Court concerned forthwith.
(Sujit Narayan Prasad, J.)
I agree.
(Gautam Kumar Choudhary J.) (Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated, the 23rd April , 2025.
Birendra / A.F.R.
