Jharkhand High Court
Baswa Devi vs The State Of Jharkhand on 28 April, 2025
Author: Sanjay Prasad
Bench: Sanjay Prasad
Neutral Citation No.
( 2025:JHHC:13965 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No. 756 of 2005
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Baswa Devi, wife of Alak Mahto resident of Baradih, P.S.
Barhi, Dist. Hazaribagh ... Appellant
-Versus-
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Avilash Kumar, Amicus Curiae
For the State : Mr. Prabhu Dayal Agarwal, Spl.P.P
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JUDGMENT
C.A.V. on 15.01.2025 Pronounced on 28.04.2025
This Criminal Appeal has been filed on
behalf of the appellant challenging the judgment of
conviction dated 24.05.2005 and sentence dated
25.05.2005 respectively passed by Sri Rajesh Kumar
Vaish, then learned Additional District & Sessions
Judge-VI , Hazaribagh in S.T. No. 336 of 2004/ 65 of
2004 arising out of Barhi P.S. Case No. 9 of 2004,
corresponding to G.R. No. 145 of 2004, by which the
appellant has been convicted for the offences under
sections 304-B , 498-A/34, 201 and 323/34 of I.P.C.
and sentenced to undergo R.I. for seven (07) years, R.I.
for Two (02) years, S.I. for Six months and R.I. for one
year respectively and also to pay the fine of Rs.1,000/-,
Rs.500/-, Rs.500/- and Rs.1,000/- respectively.
2. The prosecution case, in brief, is that the
Informant had submitted written application before the
Officer-in-Charge, Barhi Police Station, stating therein
that one year ago (i.e. in the year 2003) his daughter
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Bijanti Devi was married with one Mahesh Yadav as per
Hindu custom and he had given Dowry amount as per
capacity. However, after sometime, father-in-law of her
daughter, namely Alak Mahto, Mother-in-law, namely
Baswa Devi (i.e. the appellant), Husband, namely
Mahesh Yadav and Gotni, namely Sangita Devi, Bhaisur,
namely Shahdeo Yadav and Devar, namely Fulgi Yadav
started demanding further dowry of Rs.5,000/- and
asked his daughter to bring the amount from her father
and for which they had assaulted his daughter several
times. Although the Informant had stated before them
that he had no money, but they have threatened him of
dire consequences. On 16.01.2004, he learnt that his
daughter had died due to drowning in the Well.
3. On the basis of Written Application
submitted by the Informant-Mahadeo Mahto on
16.01.2004 before the Officer-in-Charge, Barhi Police
Station, Police has instituted Barhi P.S. Case No. 9 of
2004 for the offence under Sections 498-A/ 323/ 304-
B/34 of the I.P.C. against seven person including the
appellant. Later on, Section 302 of I.P.C. was added by
the learned Chief Judicial Magistrate, added Section 302
I.P.C. vide order dated 15.03.2004.
4. Heard learned counsel for the appellant
and learned counsel for the State.
5. Learned Amicus Curiae, appearing for the
appellant has submitted that the impugned judgment of
conviction and sentence passed by the learned Court
below is illegal, arbitrary and not sustainable in eye of
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law. It is submitted that the learned Trial Court has erred
while passing the Judgment of conviction and sentence.
It is submitted that the learned trial court has not
considered the evidence in its true perspective. It is
submitted that none of the prosecution witness has even
whispered while deposing in court about any demand
ever made from the appellant side to constitute offence
u/s 304-B of the I.P.C. It is submitted that the learned
court below has further erred in passing the impugned
judgment impugned ignoring the fact that it was not an
un-natural death. Even the prosecution witnesses had
pointed out that the deceased had died due to accidental
fall in well which cannot constitute an offence u/s 304-B
of the IPC. It is submitted that the learned court below
has also not taken in to consideration the fact that
although the Doctor has found some injuries, but the
same is not sufficient to cause death and the Doctor has
not stated anything as to whether the injuries were
antemortem or postmortem in nature. It is submitted
that the learned court below has not taken into
consideration that even the father and mother of the
deceased have been examined in the case, but they have
not stated anything regarding any sort of torture or
demand of dowry against the appellant. It is submitted
that there is no evidence on record to show that the
death of the deceased took place soon after she was
subjected to cruelty. It is submitted that the evidence of
Defence witnesses, namely Parmeshwar Yadav, who was
examined as D.W.1 and Md. Islam, who was examined as
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D.W.2, were not considered by the learned Trial Court. It
is submitted that in any view of the matter, the impugned
judgement is bad and not sustainable in the eye of law
and hence, the impugned judgment and sentence passed
by the learned Court below may be set-aside and the
appellant may be acquitted. It is further submitted by the
learned counsel that the remaining Six accused persons,
namely Sangita Devi, Fulangi @ Dhaneshwar @ Satish
Yadav, Meena Devi, Sahdeo Yadav, Alakh Yadav and
Mahesh Yadav were acquitted by the another learned
Trial Court in another S.T. No. 29 of 2006 vide judgment
dated 01.07.2010 for the offences under Section 498-A,
323, 304-B, 201/34 of I.P.C. and Section 3 and 4 of
Dowry Prohibition Act.
6. On the other hand, learned Spl.P.P. has
submitted that the impugned judgment of conviction and
sentence passed by the learned Court below are fit and
proper and no interference is required. It is submitted
that several prosecution witnesses have fully supported
the case. It is submitted P.W. 1, P.W.2, P.W.3 and P.W.4,
namely Shyam Sundar Yadav, Mahadeo Yadav, Basudeo
Yadav and Jhuniya Devi respectively have fully supported
the case and proved the death of the deceased. It is
submitted that the P.W.6, i.e. the Doctor, namely Dr.
Rajesh Kumar Gupta has proved the postmortem report,
(i.e. the Ext.1) of the deceased and confirmed the death of
the deceased and thus the prosecution case is fully
proved. It is submitted that the P.W. 7, namely Baij Nath
Prasad Singh is Investigating Officer of this case, who has
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fully supported and corroborated the case of the
prosecution. It is submitted that P.W. 7, i.e. the
Investigating Officer had investigated the case and
submitted chargesheet against the appellant and the
Doctor had found ligature mark on the neck of the
deceased and hence the prosecution has fully proved its
case. Thus, no illegality has been committed by the
learned Court below while passing the impugned
judgment and hence this Criminal Appeal may be
dismissed.
7. Perused the Lower Court Records of this
case and considered the submission of both the sides.
8. It transpires that the F.I.R. was lodged on
16.01.2024 for the offence under section 304-B/ 498-A/
323/ 34 of the I.P.C. against seven person, namely Alak
Mahto, Baswa Devi (i.e. the appellant), Mahesh Yadav,
Sangita Devi, Shahdeo Yadav and Fulgi Yadav.
9. It transpires that the police, after making
investigation, had submitted the charge-sheet under
sections 498-A/323/304-B/201/34 of I.P.C. and 3/4 of
Dowry Prohibition Act only against the appellant Baswa
Devi on 17.04.2004 before the learned Chief Judicial
Magistrate, Hazaribagh and learned Chief Judicial
Magistrate, Hazaribagh had taken cognizance under
sections 498-A, 323, 304 'B', 201 and 34 of I.P.C. and
3/ 4 of the Dowry Prohibition Act against the appellant
on 17.04.2004
10. After supplying the police papers to the
accused i.e. the appellant, charges were framed
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against the appellant under sections 304-B/34, 498-
A/34, 201 of I.P.C. and 3/ 4 of the Dowry Prohibition
Act by the learned Additional Sessions Judge-VI,
Hazaribagh and to which the appellant pleaded not
guilty and claimed to be tried.
11. It transpires that prosecution had got
examined Seven (07) witnesses in support of its case
who are as follows:-
(i) P.W. 1 is Shyam Sundar Yadav,
(ii)P.W. 2 is Mahadeo Yadav ( Informant),
(iii)P.W.3 is Basudeo Yadav ,
(iv)P.W.4 is Smt. Jhuniya Devi,
(v)P.W. 5 is Manju Devi,
(vi)P.W. 6 is Doctor, Dr. Rajesh Kumar Gupta and
(vii)P.W. 7 is Baijnath Prasad Singh, i.e. the I.O.
12. The prosecution got proved certain
documents as the Exhibits, which are as follows:
(i) Exhibit 1 is the signature of the Informant on
fardbayan,
(ii) Exhibit 1/1 is endorsement of on written application
(iii) Exhibit 1/ 2 is written report
(iv) Exhibit 2 is Post Mortem Report,
(v) Exhibit 3 is Formal FIR ,
13. Thereafter, the Appellant was
examined under section 313 of Cr.P.C. on 04.04.2005 by
the learned Court below and to which she denied the
circumstances put forth before her.
14. It transpires that Defence had got
examined Two (02) witnesses in support of its case who
are as follows:-
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(i) D.W.1 is Parmeshwar Yadav and
(ii) D.W.2 is Md. Islam
15. Thereafter, the learned Court below has
passed the impugned judgment by convicting the
appellant as aforesaid and sentenced her to undergo on
different counts as mentioned above, hence this
Criminal Appeal has been filed.
16. So far as evidence of the prosecution
witness is concerned, P.W. 1 is Shyam Sundar Yadav,
who has stated during his evidence that the occurrence
took place in the year 2004 in the month of Ashar.
Deceased Bijanti was married with son of Alakh Mahto
one year ago and after marriage she went to her
matrimonial home. She further stated that In-law
members of the deceased used to make good behaviour
and there was no assault. He further stated that
deceased Vaijayanti died in her matrimonial home and
her body was kept on the cot. The police had not
recorded his statement.
This P.W. 1 has been declared hostile by
the prosecution.
17. During cross examination, he stated that
Mahadeo Yadav is his own step brother and his father
has performed two marriages and he has got two sons,
i.e. one from each marriage. The accused Baswa Devi is
his Samdhan in her relation.
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18. Thus, from scrutinizing the evidence of
P.W.1, it is evident that he has not supported the
prosecution case and he clearly stated that in-law
members of the deceased used to behave properly and
there was no torture and assault upon the deceased
lady.
Thus, P.W.1 has not supported the
prosecution case.
19. P.W.2 is Mahadeo Yadav, i.e. the
Informant of this case and father of the deceased
Baijanti Devi and who stated during his evidence that
his daughter Baijanti was married with Mahesh Yadav
as per Hindu customs and after marriage his daughter
went to her matrimonial home. He further stated that
his daughter was living well in her matrimonial home
and she had not made any complaint. There was some
trivial dispute with her in-law members and husband.
His daughter had died in her matrimonial home and
when the Bhaisur of her daughter informed about the
occurrence, then he went to the matrimonial home of his
daughter, where he found her dead body on the cot.
He further stated that his daughter died due
to falling into the well. He further stated that he does not
know as to how his daughter fell into the Well. He has
not submitted the Written report before the police
station, but the police had arrived at the place of
occurrence. On being shown his signature on the written
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application dated 16.01.2004, the witness identified his
signature marked as Ext.1. He further stated that he
identifies the accused Baswa Devi as his Samdhan.
20. During cross-examination he stated that
his daughter Baijanti had no complaint in her
matrimonial home. The Police had not recorded his
statement.
21. Thus, from scrutinizing the evidence of
P.W.2, it is evident that he has also not supported the
prosecution case and has clearly stated that his
daughter was living properly in her matrimonial home
and she had not complained.
Although, P.W.2 has not been declared
hostile by the prosecution, but it is evident that he is
father of deceased Baijanti and he has not supported the
prosecution case and hence, his evidence is not
sufficient to prove the allegations against the appellant.
22. P.W.3 is Basudeo Yadav, who is a
business man and stated during his evidence that
deceased Baijanti was his Bhagni and she was married
with one Mahesh Yadav and she fell into the Well. He
had gone to the place of occurrence and had seen the
dead body. He had put his signature on the Inquest
Report of the deceased before the police. He is not aware
as to how the deceased Baijanti fell into the Well.
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23. During cross-examination he stated that
he is giving evidence vide statement in the Court and he
has not given evidence in this case prior to his
deposition.
24. Thus, from scrutinizing the evidence of
P.W.3, it is clear that P.W.3 is own maternal uncle of the
deceased Baijanti and he has also not supported the
prosecution case and he merely put his signature on the
inquest report but even the signature of said P.W.3 is
not proved by the prosecution on record. Thus, evidence
of P.W.3 is not reliable.
25. P.W. 4 is Jhuniya Devi, who is the mother
of the deceased and she stated during her evidence that
his daughter Baijanti was married with Mahesh Yadav
1-1 ½ years prior to the occurrence. Thereafter, her
daughter had gone to the matrimonial home where apart
from her husband, her mother-in-law Baswa Devi, i.e.
the appellant and father-in-law Alak Yadav were also
living. Even Bhaisur, namely Shahdeo Yadav and Devar,
namely Fulgi Yadav were also living there. She further
stated that her daughter was living properly in her
matrimonial home and she died in her matrimonial
home by falling into the Well.
26. During cross-examination, she has stated
that Baswa Devi is her Samdhan and hence she
identified her. She stated that Police has not recorded
her statement.
Neutral Citation No.
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27. Thus, from scrutinizing the evidence of
P.W.4, it is evident that she also has not supported the
prosecution case although she is mother of the deceased
Baijanti and she stated that the deceased had fallen into
the Well and she had not attributed any specific over act
of torture and assault on the appellant Baswa Devi,
while the daughter of P.W.4 was living in her
matrimonial home.
Thus, P.W.4 has also not supported the
prosecution case.
28. P.W.5 is Manju Devi, who is the
independent witness and has stated during her evidence
that the occurrence took place 10-11 months ago and at
that time she had gone to the Well to fetch water and at
that time deceased Baijanti had also come there to fetch
water and in course of fetching water deceased Baijanti
fell into the Well. Thereafter, P.W.5 raised alarm and
nearby people arrived there and by that time Baijanti
was taken out from the Well, she had died. Deceased
Baijanti was taken out from the Well within Five to 10
minutes, but by that time she died and at that time her
in-law members had also arrived there. The dead body of
Baijanti was taken out from the Well and Post mortem
was conducted. The father and brother of the deceased
had taken her body from the place of occurrence. She
identifies the mother-in-law Baswa Devi, i.e. the
appellant.
Neutral Citation No.
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29. However, during cross-examination, she
stated that the police had also recorded her statement
and she had stated the same fact before the police what
she had stated before the Court below.
30. Thus, from scrutinizing the evidence of
P.W.5, it is evident that she is an independent witness
and has stated that the deceased had fallen into the Well
while she had gone to fetch water and thus, she has not
supported the prosecution case. The evidence of P.W.5
reveals that when the dead body of the deceased was
taken out from the Well by the villagers, by that time her
in-law members had also arrived. The evidence of P.W.5
does not support the prosecution case.
31. P.W.6 is Dr. Rajesh Kumar Gupta, who
had conducted Post Mortem examination of the
deceased on 17.01.2004and found following injuries on
her person.
"Injuries-
ligature mark- ¼" X ¼" Deep over right side of medial
aspect of neck was present. On cut section of ligature
mark while glistering sub allural tissue with
surrounding subcuteanous ecchymosis present and
laryngial wall congested with submucous and
subcutaneous Heamatoma over both sides.
Trachea -Wall was congested.
Nature of injury is grievous and responsible
for causing death in due course.
Neutral Citation No.
( 2025:JHHC:13965 )
Injury was due to compression over neck
with some thread like material like rope etc.
Cause of death was Asphyxia due to
strangulation over right side of neck with some thread
like material. Time lapse since death is about 12 to 36
hours."
He had proved the post mortem report and his
signature, which was marked as Ext. 2.
32. During Cross-examination he stated that
death inquest report of the deceased was also attached
with the Challan when post mortem was conducted.
He further stated that without seeing the
death Inquest Report he could not say whether the
injury found at the time of post mortem was earlier
written in the inquest report or not because there is no
column in the form of Post Mortem report.
He denied that injury is not possible if
deceased fell into the Well and he denied the suggestion
for preparing forged post mortem report.
33. Thus, from scrutinizing the evidence of
the Doctor, it would appear that he has stated about the
death of the deceased was caused due to Asphyxia,
strangulation to right side of neck. However, he stated
that time lapse due to death is 12 to 36 hours.
From perusal of Ext.2, i.e. the post
mortem report it would appear that the same was
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prepared on 17.01.2004 and thus, the post mortem
report does not fully confirm the time of death as the
Doctor has opined death within 12-36 hours whereas
post mortem was conducted within 24 hours of the
occurrence. His evidence will be considered again after
the evidence of the I.O.
34. P.W.7 is Baijnath Prasad Singh, who is
the I.O. of the said case and stated during his evidence
that on 16.01.2004 he was posted as Sub Inspector,
Barhi Police Station and he was given the responsibility
to conduct investigation in this case by then Officer-in-
Charge of Barhi Police Station and the case was
instituted on the basis of written application filed by the
Informant. He proved the endorsement on Fardbayan in
the signature of Santosh Kumar marked as Ext. 1/1. He
further proved the written application marked as Ext. 2.
He also proved the formal F.I.R. marked as Ext.3 in the
writing and signature of Santosh Kumar, then Officer-in-
Charge. Thereafter, he inspected the place of occurrence
and had recorded the statement of witnesses and had
prepared Inquest Report on 16.01.2004 in presence of
Sonu Gope (Not examined) and Basudeo Yadav (P.W.3)
and dead body of the deceased was sent for Post Mortem
on 17.01.2004. he obtained the Post Mortem Report on
11.03.2004. In the meantime, he arrested Baswa Devi
on 17.01.2004. He had recorded the statement of Sonu
Gope (Not examined), Basudeo Yadav, i.e. P.W.3, Shyam
Sundar Yadav (i.e. P.W.1), Jhuniya Devi (i.e. P.W.4),
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Manju Devi (i.e. P.W.5) who had supported the allegation
in the F.I.R. Thereafter, he submitted chargesheet
against Baswa Devi.
35. However, during his cross-examination he
stated that written application was not given in his
presence, but endorsement was given by the Officer-in-
Charge in the F.I.R. before him. Thereafter, formal F.I.R.
was drawn and investigation was handed over to him.
He arrived at the Place of occurrence on 16.01.2004 at
4.15 p.m. and when he arrived at the place of
occurrence, then he had seen the dead body of deceased
Baijanti in her matrimonial home in the courtyard, i.e.
in the house of Alak Mahto, i.e. father-in-law of the
deceased. He, along with Armed Forces, had gone to the
place of occurrence, but he does not remember their
name. However, he also stated that when he arrived at
the courtyard of the house of Alak Yadav, i.e. father-in-
law of the deceased, then he had seen Sonu Gope (not
examined) and Basudeo Yadav, i.e. P.W.3 and both were
resident of village Panchmadhav, which is situated at a
distance of 40 kilometers from the place of occurrence.
He had denied the suggestion that Sonu Gope
and Basudeo Yadav were not present at the place of
occurrence and their signature were obtained later on by
him. He had seen blood from the eyes and froth from the
nose of deceased Baijanti at the time of preparing
Inquest Report and had seen the scar at the back of the
deceased due to Ladder. He further stated that P.W.2,
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i.e. Mahadeo Mahto is father of the deceased and who
resides at village Gundu, which is situated at a distance
of 15-20 kilometers, whereas Shyam Sundar Yadav and
Jhuniya Devi, i.e. P.W. 1 and P.W.4, are also resident of
village Ghundu.
36. He admitted to have recorded the
statement of independent witness Manju Devi and she
stated before him on 28.01.2004 that the deceased
Baijanti arrived at the Well on the date of occurrence for
fetching water from the Well and while she was
managing her hair, then in the meantime, he fell into the
Well and on alarm raised by her village people reached
there, but by that time she had died.
He also stated that he tried to examine
other people of village Barabasti, but no one was
available and he had stated this fact in Para 14 of the
Case Diary. He denied the suggestion that there is
approximately 1,200 (Twelve hundred) houses in village
Barabasti. He denied the suggestion for not recording
the statement of villagers of village Barabasti. He denied
the suggestion of forcibly obtaining the signature of
Informant Mahadeo Yadav.
37. Thus, from scrutinizing the evidence of
the Investigating Officer, it would appear that though he
tried to support the prosecution case, but his evidence
reveals that he had made Sonu Gope (Not examined) and
Shyam Sunder Yadav (i.e. P.W.1) as witnesses to the
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Inquest Report, who were residing at a distance of 40
kilometers from the place of occurrence. The I.O.
admitted that he could not record statement of any
person of village Barabasti, where the occurrence took
place except Manju Devi.
38. Therefore, investigation of the
Investigating Officer is doubtful and he has tried to
implicate the appellant on the basis of signature of the
witnesses, namely Sonu Yadav and Shyam Sunder
Yadav, who were residents of far away place. Even he
failed to examine the local and nearby people of village
Barabasti and hence, evidence of the Investigating
Officer creates doubt. Even the evidence of P.W.7 is
contradicted by the evidence of Informant (i.e. father of
the deceased), i.e. P.W.2 and also from evidence of
P.W.4, i.e. Jhuniya Devi (Mother of the deceased).
39. Even P.W.4 Jhuniya Devi, who is the
mother of the victim has not supported the prosecution
case.
40. So far as the Defence evidence is
concerned, D.W.1 is Parmeshwar Yadav, who has stated
during evidence that the deceased Baijanti died on
16.01.2004 between 6 to 7 a.m. in the morning and
deceased Baijanti had gone to Well for fetching water,
but while she was managing her hair, she suddenly fell
into the Well. Thereafter, Manju Devi had raised alarm
and on hearing her alarm, Gundak Yadav, Islam Mian
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came there and they took out the body of Baijanti from
the Well but by that time she had died.
He further stated that in-law members
were keeping Baijanti properly and there was no
complaint or torture.
41. During cross-examination, he stated that
the appellant Baswa Devi is his Aunt and though he had
not seen the deceased managing her hair, but he had
heard the noise. He further told that had Baijanti never
made any complaint.
42. Thus, from scrutinizing the evidence of
P.W.1, it transpires that he has also supported the
evidence of P.W.5 Manju Devi, but the trial court has
discarded the same.
43. D.W.2 is Md. Islam, who is also an
independent person and stated that he was acquainted
with both the sides and on 16.01.2004, the occurrence
took place between 6 a.m. to 7 a.m. and at that time he
had gone to the house of Nunu Mahto beside the house
of Alak Mahto. Both Baijanti Devi and Manju Devi had
gone to fetch water from the Well and in the meantime,
alarm was raised that Baijanti had fallen into the Well
and hearing the hullah he went to the Well and found
there Parmeshwar, Bhullan and villagers. He is also one
of the persons responsible for bringing Baijanti out of
the Well. He further stated that Baijanti was kept
properly in her matrimonial home and there was no dispute.
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44. During cross-examination, he stated that his
house is situated at a distance of 200 ft from the house of
Baswa Devi. Several people assembled at the place of
occurrence. He is well aware of the people of his locality and
he also do Panchayati in case of any dispute in the village.
Thus, from scrutinizing the evidence of P.W.2, it appears
that he has supported the defence version, but it was not
considered by the trial court
45. It transpires that although the Informant
had lodged the F.I.R. against seven persons namely Mahesh
Yadav, i.e. the husband, Alak Yadav, i.e. the Father-in-Law,
Baswa Devi, i.e. the Appellant (Mother-in-law), Sangeeta
Devi, i.e. the Gotni, Fulgi Yadav, i.e. Devar on 16.01.2004,
however the police had initially submitted chargesheet only
against Baswa Devi and there was no explanation as to why
the police has submitted chargesheet only against Baswa
Devi at that time.
Later on, the police had submitted
chargesheet against aforesaid remaining persons and they
were acquitted by the another learned Addl. Sessions Judge,
F.T.C.-VI, Hazaribagh vide judgment dated 01.07.2010
passed in S.T. No. 29 of 2006.
It further transpires that there was
consistent evidence of P.W.1, namely Shyam Sundar Yadav
and P.W.3, namely Basudeo Yadav, who are the
independent witnesses when deceased Baijanti had fallen
into the Well. They have also stated that behaviour of in-law
members, i.e. including the Appellant was very good with
the deceased and there was no assault or torture upon her.
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P.W.1 and P.W.3 have not supported the prosecution case
and hence, their evidence cannot be taken into
consideration for convicting the Appellant.
46. Similarly, P.W.2, namely Mahadeo
Yadav, i.e. the Father of the deceased and P.W.4, i.e. mother
of the deceased, namely Jhuniya Devi have also not
supported the prosecution case, rather they have stated that
their daughter was living properly in her matrimonial home
and there was no demand of money. Thus, from the
evidence of P.W.2 and P.W.4, it appears that they had no
grievance against the appellant.
47. P.W.5, namely Manju Devi is an
independent person, who is eye witness of the occurrence
and stated that she had seen Baijanti falling into the Well
while she was fetching water from the Well.
48. It transpires that the trial court has
convicted the appellant merely on the basis of evidence of
I.O. and the Doctor. It appears that connivance of the
Investigating Officer and the Doctor cannot be ruled out as
it is evident that the investigation of the Investigating Officer
is perfunctory and he had not recorded the statement of
nearby persons, rather he had recorded the statement of
Sonu Gope (Not examined) and Shyam Sundar Yadav. i.e.
P.W.1, who put signature on the Inquest Report, but even
the said Inquest report was neither proved by the I.O. nor by
any other person.
49. The evidence of P.W.6 also appears to
be doubtful as no ladder was found in the seizure list
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although the Doctor has opined that there was scar of
ladder on the back of the deceased.
50. The death due to strangulation does not
appear to be a possibility because the dead body was
recovered from the Well.
51. The I.O. failed to explain as to who had
committed the murder of the deceased Baijanti. It transpires
that the appellant had remained in custody from 18.01.2004
to 13.07.2005.
52. It further transpires that no seizure list
was prepared by the Investigating Officer at the place of
occurrence. The I.O. could have seized the Bucket or any
other material by which the dead body of the deceased
Baijanti was brought out from the Well. Even the post
mortem report of the doctor is not convincing as he also
stated that time lapse after death is 12-36 hours, which also
makes the prosecution case doubtful.
53. Even the I.O. had admitted that he had
prepared the Inquest Report, but he failed to prepare any
seizure list of any article or even the Bucket, in which the
deceased Baijanti was brought out from the Well, from the
place of occurrence near the Well though he had prepared
Inquest Report.
It is further evident that the I.O. has
not proved the Inquest Report prepared by him and the I.O.
has purposely withheld the same and thus, the prosecution
case also becomes doubtful.
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54. It is well settled that conviction of a
person merely on the basis of evidence of doctor and I.O. is
illegal and not sustainable in law.
55. It is evident that I.O. has tampered his
investigation by examining the witnesses of far away places
and I.O. had not made the nearby persons as prosecution
witnesses.
56. Even the Doctor is under the influence
of I.O. therefore, the conviction of the appellant merely on
the basis of I.O. and Doctor by the learned Trial Court is not
justified and is accordingly fit to be set aside.
57. It further appears that the evidence of
the witnesses tendered on behalf of the defence have not
been properly considered by the learned Court below while
convicting the appellant, but it is well settled that defence
witnesses are entitled to the same treatment as the
witnesses brought by the prosecution.
58. It has been held in the case of
Balwinder Singh (Binda) v. Narcotics Control Bureau,
reported in 2023 SCC online SC 1213 paragraph No. 39 as
follows:
"para 39: Reliance placed by learned counsel on the
decisions in Dudh Nath Pandey v. State of Uttar
Pradesh47, State of Haryana v. Ram
Singh48, Adambhai Sulemanbhai Ajmeri v. State of
Gujarat49 and Jumi v. State of Haryana50 to urge that
defence witnesses are entitled to equal treatment with
those produced by the prosecution and different
yardsticks cannot be prescribed for prosecution
witnesses as compared to defence witnesses is a
well-settled principle of criminal jurisprudence, but
cannot take the case of the appellant - Satnam
Singh5 any further inasmuch as the trial Court has
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carefully analysed the testimonies of the defence
witnesses before drawing an adverse presumption
against the accused. The High Court has also taken
pains to go through the entire testimonies of the
defence witnesses and only thereafter endorsed the
view taken by the trial Court. There has been no
arbitrariness or undue favour shown to the
prosecution witnesses from the appellant-Satnam
Singh5 to claim any bias.
59. It has been held in the case of Baijnath and
Others versus State of Madhya Pradesh reported in (2017)
1 SCC 101 at Para Nos. 29, 30, 33, 34 and 35 as follows:-
"Para:- 29. Noticeably this presumption as well is
founded on the proof of cruelty or harassment of the
woman dead for or in connection with any demand for
dowry by the person charged with the offence. The
presumption as to dowry death thus would get activated
only upon the proof of the fact that the deceased lady had
been subjected to cruelty or harassment for or in
connection with any demand for dowry by the accused
and that too in the reasonable contiguity of death. Such a
proof is thus the legislatively mandated prerequisite to
invoke the otherwise statutorily ordained presumption of
commission of the offence of dowry death by the person
charged therewith.
Para:-30. A conjoint reading of these three provisions,
thus predicate the burden of the prosecution to
unassailably substantiate the ingredients of the two
offences by direct and convincing evidence so as to avail
the presumption engrafted in Section 113-B of the Act
against the accused. Proof of cruelty or harassment by
the husband or his relative or the person charged is thus
the sine qua non to inspirit the statutory presumption, to
draw the person charged within the coils thereof. If the
prosecution fails to demonstrate by cogent, coherent and
persuasive evidence to prove such fact, the person
accused of either of the abovereferred offences cannot be
held guilty by taking refuge only of the presumption to
cover up the shortfall in proof.
Para:-33. Tested on the judicially adumbrated
parameters as above, we are of the unhesitant opinion
that the prosecution has failed to prove beyond
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reasonable doubt, cruelty or harassment to the deceased
for or in connection with any demand for dowry as
contemplated in either of the two provisions of the Code
under which the accused persons had been charged.
Noticeably, the alleged demand centres around a
motorcycle, which as the evidence of the prosecution
witnesses would evince, admittedly did not surface at the
time of finalisation of the marriage. PW 5, the mother of
the deceased has even conceded that there was no
dowry demand at that stage. According to her, when the
husband (who is dead) had insisted for a motorcycle,
thereafter he was assured that he would be provided
with the same, finances permitting. Noticeably again, the
demand, as sought to be projected by the prosecution, if
accepted to be true had lingered for almost two years. Yet
admittedly, no complaint was made thereof to anyone, far
less the police. Apart from the general allegations in the
same tone ingeminated with parrot-like similarity by the
prosecution witnesses, the allegation of cruelty and
harassment to the deceased is founded on the
confidential communications by her to her parents in
particular and is not supported by any other quarter.
Para:-34. To the contrary, the evidence of the defence
witnesses is consistent to the effect that no demand as
imputed had ever been made as the family of the
husband was adequately well-off and further Appellant 1
Baijnath had been living separately from before the
marriage. According to them there was no occasion for
any quarrel/confrontation or unpleasantness in the
family qua this issue. Significant is also the testimony of
DW 3, the sister-in-law of the deceased who indicated
abandonment of the matrimonial home by her with the
son of Thoran Singh, the Sarpanch of the village for which
she understandably had incurred the displeasure of the
in-laws. DW 4, the father of DW 3 who had given his
daughter in marriage in the same family had deposed
that he did not ever encounter any demand for dowry.
The testimony of the prosecution witnesses PW 3 and PW
7 fully consolidate the defence version.
Para:-35. A cumulative consideration of the overall
evidence on the facet of dowry, leaves us unconvinced
about the truthfulness of the charge qua the accused
persons. The prosecution in our estimate, has failed to
prove this indispensable component of the two offences
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beyond reasonable doubt. The factum of unnatural death
in the matrimonial home and that too within seven years
of marriage therefore is thus ipso facto not sufficient to
bring home the charge under Sections 304-B and 498-A of
the Code against them".
60. It has been held in the case of Major Singh
and Another versus State of Punjab reported in (2015) 5
SCC 201 at Para Nos. 7, 8, 10, 11, 16, 17, 18 and 19 as
follows:-
"Para:-7. The learned counsel for the appellants
contended that the evidence of PWs 1 and 3, the father
and brother of the deceased cannot be relied upon as
both are interested witnesses. It was submitted that
absolutely there is no evidence to establish that the
deceased was subjected to harassment or cruelty in
connection with demand of dowry and in the absence of
proof of essential ingredients of Section 304-B IPC, the
courts below erred in convicting the appellants. It was
further submitted that the daughter of the deceased who
is now 18 years of age is under the care and protection of
the appellants and that they are the only persons to take
care of the daughter of the deceased.
Para:-8. Per contra, the learned counsel for the
respondent State contended that deceased Karamjit Kaur
died in connection with demand of dowry within 2½
years of marriage. It was contended that even though
PWs 1 and 3 are the father and brother of the deceased,
their evidence is consistent and credible and amply
establishes that she was subjected to harassment and
cruelty in connection with demand of dowry and based
on their evidence, the courts below rightly convicted the
appellants under Section 304-B IPC and the concurrent
findings cannot be interfered with.
Para:-10. To sustain the conviction under Section
304-B IPC, the following essential ingredients are to be
established:
(i) the death of a woman should be caused by burns or
bodily injury or otherwise than under a 'normal
circumstance';
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(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.
Para:-11. If any death is caused in connection with
dowry demand, Section 113-B of the Evidence Act also
comes into play. Both these sections, Section 304-B IPC
and Section 113-B of the Evidence Act were inserted by
Dowry Prohibition (Amendment) Act 43 of 1986 with a
view to combat the increasing menace of dowry deaths.
Section 113-B 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 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 Penal Code, 1860."
It is imperative to note that both these sections set out
a common point of reference for establishing guilt of the
accused person under Section 304-B IPC, which is "the
woman must have been 'soon before her death' subjected
to cruelty or harassment 'for or in connection with the
demand of dowry'".
Para:P-16. To attract conviction under Section 304-B
IPC, the prosecution should adduce evidence to show that
"soon before her death", the deceased was subjected to
cruelty or harassment. There must always be proximate
and live link between the effects of cruelty based on
dowry demand and the death concerned. In Hira
Lal v. State (Govt. of NCT of Delhi) [(2003) 8 SCC 80 :
2003 SCC (Cri) 2016 : AIR 2003 SC 2865] it was
observed as under : (SCC pp. 86-87, para 9)
Neutral Citation No.
( 2025:JHHC:13965 )
"9. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be
material to show that soon before her death the victim
was subjected to cruelty or harassment. The prosecution
has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of 'death
occurring otherwise than in normal circumstances'. The
expression 'soon before' is very relevant where Section
113-B of the Evidence Act and Section 304-B IPC are
pressed into service. The prosecution is obliged to show
that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates.
Evidence in that regard has to be led by the prosecution.
'Soon before' is a relative term and it would depend upon
the circumstances of each case and no straitjacket
formula can be laid down as to what would constitute a
period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in
the importance of a proximity test both for the proof of an
offence of dowry death as well as for raising a
presumption under Section 113-B of the Evidence Act. The
expression 'soon before her death' used in the
substantive Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression
'soon before' is not defined. A reference to the expression
'soon before' used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court may
presume that a man who is in the possession of goods
'soon after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can account
for their possession'. The determination of the period
which can come within the term 'soon before' is left to be
determined by the courts, depending upon facts and
circumstances of each case. Suffice, however, to indicate
that the expression 'soon before' would normally imply
that the interval should not be much between the cruelty
or harassment concerned and the death in question.
There must be existence of a proximate and live link
between the effect of cruelty based on dowry demand
and the death concerned. If the alleged incident of cruelty
is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it
would be of no consequence."
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Para:-17. Same principle was also expressed in State
of A.P. v. Raj Gopal Asawa [(2004) 4 SCC 470 : 2004 SCC
(Cri) 1306 : (2004) 3 SCR 32] ; Balwant Singh v. State of
Punjab [(2004) 7 SCC 724 : 2004 SCC (Cri) 2057]
; Kaliyaperumal v. State of T.N. [(2004) 9 SCC 157 : 2004
SCC (Cri) 1417] ; Kamesh Panjiyar v. State of
Bihar [(2005) 2 SCC 388 : 2005 SCC (Cri) 511] ; Harjit
Singh v. State of Punjab [(2006) 1 SCC 463 : (2006) 1 SCC
(Cri) 417] ; Biswajit Halder v. State of W.B. [(2008) 1 SCC
202 : (2008) 1 SCC (Cri) 172]
and Narayanamurthy v. State of Karnataka [(2008) 16
SCC 512 : (2010) 4 SCC (Cri) 322] .
Para:-18. Applying these principles to the instant
case, we find that there is no evidence as to the demand
of dowry or cruelty and that deceased Karamjit Kaur was
subjected to dowry harassment "soon before her death".
Except the demand of scooter, there is nothing on record
to substantiate the allegation of dowry demand.
Assuming that there was demand of dowry, in our view,
it can only be attributed to the husband Jagsir Singh who
in all probability could have demanded the same for his
use. In the absence of any evidence that the deceased
was treated with cruelty or harassment in connection
with the demand of dowry "soon before her death" by the
appellants, the conviction of the appellants under Section
304-B IPC cannot be sustained. The trial court and the
High Court have not analysed the evidence in the light of
the essential ingredients of Section 304-B IPC and the
conviction of the appellants under Section 304-B IPC is
liable to be set aside.
Para:-19. In the result, conviction of the appellants
under Section 304-B IPC is set aside and this appeal is
allowed. Appellant 2 Mohinder Kaur is on bail and her
bail bonds stands discharged. Appellant 1 Major Singh
who is in custody is ordered to be set at liberty forthwith.
61. It has been held by the Hon'ble Supreme
Court in the case of Phulel Singh Vs. State of Haryana
reported in (2023) 10 SCC 268 that if harassment on
account of dowry demand is not established beyond
reasonable doubt by evidence on record then prosecution
case u/s 304-B of I.P.C. is not proved.
Neutral Citation No.
( 2025:JHHC:13965 )
62. It has been held by the Hon'ble Supreme
Court in the case of Parvati Devi Vs. State of Bihar
reported in (2022) 14 SCC 500 that omnibus allegations
with respect to dowry demand is not sufficient to prove the
guilt of mother-in-law when the Respondent-State has not
been able to indicate any specific allegation, nor point to any
specific evidence or testimony against her and then the
Hon'ble Supreme Court had acquitted the mother-in-law
Parvati Devi.
63. There is general and omnibus allegation
against the appellant and other six in-law members for
demanding additional dowry.
64. There is no specific over act alleged against
the appellant for demanding the alleged additional dowry of
Rs.5,000/- and even the demand of dowry is vague. Even
the alleged assault on the person of daughter of the
Informant is vague without any specific overt act committed
by the appellant.
65. The defence, in support of its case has
also filed the certified copy of the judgment dated
01.07.2010 passed in S.T. No. 29 of 2006 by Shri Deepak
Nath Tiwari, then learned Additional Sessions Judge, F.T.C.-
VI, Hazaribagh, by which the other accused persons named
in the F.I.R., namely Sangita Devi, Fulangi @ Dhaneshwar @
Satish Yadav, Meena Devi, Sahdeo Yadav, Alakh Yadav and
Mahesh Yadav have been acquitted. The certified copy of
said judgment dated 01.07.2010 passed in S.T. No. 29 of
2006 by Shri Deepak Nath Tiwari, then learned Additional
Sessions Judge, F.T.C.-VI, Hazaribagh has been brought on
Neutral Citation No.
( 2025:JHHC:13965 )
record. Therefore, it is evident that the appellant Baswa Devi
is entitled to be acquitted on the ground of parity also.
66. Thus, in view of the discussions made above
and on the facts and in the circumstances of the case and in
the light of the judgment of the Hon'ble Supreme Court,
judgment of conviction dated 24.05.2005 and sentence
dated 25.05.2005 respectively passed by Sri Rajesh Kumar
Vaish, the learned then Additional District Sessions Judge-
VI, Hazaribagh in S.T. No. 336 of 2004/ 65 of 2004, arising
out of Barhi P.S. Case No. 9 of 2004, corresponding to G.R.
No. 145 of 2004 are set-aside and the appellant namely
Baswa Devi is acquitted for the offences under sections 304
(B)/34 , 498-A/34, 201 and 323/34 of the I.P.C and the
appellant is also discharged from the liability of her bail
bonds.
67. Accordingly, this Criminal Appeal (S.J.)
No. 756 of 2005 is, hereby, allowed.
68. Let the remuneration of Rs.5,500/- be paid
to Mr. Abhilash Kumar, learned Amicus Curiae by the
learned Member Secretary, JHALSA appearing for the
petitioner in this Criminal Appeal (S.J.) No. 756 of 2005.
69. Let a copy of this judgment be sent to the
learned Member Secretary, JHALSA for the needful.
70. Let the original Lower Court Records be
sent to the learned Court below by the Office.
(Sanjay Prasad, J.)
Jharkhand High Court, Ranchi
Pronounced on 28.04.2025
N.A.F.R./Bibha
