Jharkhand High Court
Ram Sahay Yadav @ Ram Sahay Mahto vs The State Of Jharkhand on 28 January, 2025
Criminal Appeal (S.J.) No. 574 of 2006
[Against the Judgment of conviction dated 29.03.2006 and Order of
sentence dated 30.03.2006, passed by learned Additional District &
Sessions Judge, Fast Track Court, Koderma, in Sessions Trial No.
539(A) of 1999 ]
Ram Sahay Yadav @ Ram Sahay Mahto, Son of Prasadi
Yadav, resident of Village - Kurmidih, Police Station -
Jainagar, District - Koderma.
... ... Appellant
Versus
1. The State of Jharkhand
2. Bandhan Yadav (Informant), Son of Late Bhatu Yadav,
resident of Village - Guria, Police Station - Barhi,
District - Hazaribagh.
... ... Respondents
.....
For the Appellant : Mr. Rajesh Lala, Advocate.
For the Respondent : Mr. P.D. Agrawal, Spl.P.P.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 21.11.2024 Pronounced on 28.01.2025
1. Heard learned counsel for the parties.
2. Present criminal appeal is directed against the
judgment of conviction and order of sentence dated
29.03.2006 passed by learned Additional Sessions
Judge, FTC, Koderma in S.T. No. 539(A) of 1999,
whereby and whereunder the appellant has been held
guilty for the offence under Section 328, 498A and 306
of the I.P.C. and sentenced to undergo R.I. for 05 years
for the offence under Section 306 I.P.C. along with fine
of Rs. 1,000/-, R.I. of 03 years along with fine of Rs.
5,00/- for the offence under Section 498A I.P.C. and
R.I. for 5 years along with fine of Rs. 5,00/- for the
offence under Section 328 of the I.P.C. with default
stipulation. All the sentences were directed to run
concurrently.
FACTUAL MATRIX
3. The factual matrix giving rise to this appeal is that
informant's daughter Dewanti Devi was married before
7-8 years with one Dhanpat Yadav in accordance with
Hindu rites and customs. It is alleged that after
marriage, the husband and wife were living in very good
and cordial atmosphere for 3-4 years, but there was no
issue to the informant's daughter. It is further alleged
that due to no issue, informant's daughter was being
subjected to cruelty and tortured both mental and
physical by in-laws family members. The informant
convened Panchayati 3-4 occasions to mend the
conduct of the accused persons, but no virtual result
yield. It is further alleged that on 06.05.1999, the son-
in-law of the informant and his brother Ram Sahay
Yadav (present appellant) had brutally assaulted the
informant's daughter while she was insisting to go to
her parental home. Thereafter, again on 09.05.1999,
the informant's son-in-law Dhanpat Yadav and his
brother Ram Sahay Yadav (present appellant)
committed murder of his daughter and the information
was given by the present appellant to the informant on
10.05.1999 at about 5:00 A.M.
4. On the basis of aforesaid information, FIR being
Jayanagar P.S. Case No. 30 of 1999 for the offence
under Section 302/34 of the I.P.C. was instituted
against the above-named accused persons. After
completion of investigation, the police submitted
charge sheet against the accused persons for the
offence under Sections 302, 328, 498A of the I.P.C.
5. The case was committed to the court of Sessions, where
trial proceeded in Original Sessions Trial No. 539 of
1999 Dhanpat @ Dhanpat Yadav faced trial, but the
present appellant was absconding, therefore, his trial
was separated and split case S.T. No. 539A of 1999 was
continued. The present appellant appeared and also
faced the trial and after conclusion of trial, he has been
held guilty and sentenced as stated above.
6. Learned counsel for the appellant has vehemently
argued that the appellant happens to be brother-in-law
of the deceased. Admittedly, the marriage was
solemnized about 8-10 years prior to the incident. It is
admitted case of the prosecution that the deceased was
murdered by administering poison. It is further
submitted that the Viscera was sent to FSL Ranchi for
chemical examination which was not available during
trial of the case and has not been proved. The Doctor,
who conducted, the autopsy on the dead body of the
deceased, has also not been examined in this case.
Therefore, the cause of death has not been proved by
the prosecution. It is further submitted that the
charges were framed under Section 302, 328, 498A
read with Section 34 of I.P.C. and the husband of the
deceased was convicted and sentenced in the original
Sessions Trial No. 539 of 1999 vide judgment dated
24.05.2004 passed by same Court. It is utter
surprising that it was never the case of the prosecution
that the accused persons have abetted the deceased to
commit suicide due to her barrenness. It is also not
proved by the prosecution that the deceased was
unable to give birth to a child, therefore, she was
subjected to cruelty by the present appellant. The case
of administering poison to the deceased has also not
been proved. Altogether seven witnesses were
examined by the prosecution, who were close relative
of the informant. The Investigating Officer was also not
examined to elicit the contradictions and
improvements appearing in the evidence of witnesses.
The learned trial court in the statement under Section
313 of the Cr.P.C. of the present appellant has put a
single question as regards incriminating circumstances
appearing against him, which is that "on 06.05.1999,
he along with his brother Dhanpat Yadav assaulted to
deceased and again on 09.05.1999 brutally assaulted
to deceased and when she became unconscious, the
present appellant along with his brother administered
her poison and killed her." No question regarding any
kind of abetment to commit suicide by the deceased
has been proved through oral or documentary evidence
nor the question was put to the appellant under
Section 313 of Cr.P.C. for getting his explanation.
Therefore, the circumstance, on the basis of which the
appellant has been held guilty and sentenced in this
case, have never been explained and known to him
under Section 313 of the Cr.P.C. and the conviction on
that basis of the appellant is absolutely vitiated under
law.
7. It is further submitted that offence under Section 302
of the I.P.C. and Section 306 of the I.P.C. are mutually
exclusive having different ingredients. The offence
under Section 306 of the I.P.C. cannot be treated as a
minor offence in connection with murder under Section
302 I.P.C. Therefore, when charge has been framed for
the offence under Section 302 of I.P.C., no conviction
can be maintained for the offence under Section 306 of
the I.P.C. with aid of provision of Section 222 of Cr.P.C.
8. In this regard, learned counsel for the appellant has
placed reliance upon judgment of Hon'ble Apex Court
in the case of Sangaraboina Sreenu Vs. State of
Andhara Pradesh reported in (1997) 5 SCC 348.
9. In the above premises, it is submitted that there is
merit in this appeal, which is fit to be allowed by setting
aside the judgment of conviction and order of sentence
of the appellant.
10. On the other hand, learned APP for State has opposed
the aforesaid contentions raised on behalf of the
appellant and defended the impugned judgment and
order and has submitted that the learned trial court
has very wisely and aptly considered the circumstances
proved against the appellant and rightly passed the
impugned judgment and order, which suffers from any
illegality, calling for any interference. This appeal has
no merits and is fit to be dismissed.
11. I have gone through the record of the case along with
impugned judgment and order in the light of the
contentions raised on behalf of both side.
12. It appears that the simple fact of the case pertains to
unnatural death of deceased at her matrimonial home
after 8-10 years of marriage, due to non-bearing of
child. It is alleged that she was taunted and tormented
and also treated with cruelty both physical and mental.
It is suspicion of prosecution that deceased was killed
by administering poison, but later on, the learned trial
court twisted the prosecution story assuming the
circumstances that it was not a case of murder, rather
the deceased has taken poison, due to cruelty and
torture meted to her on instigation by her husband and
present appellant.
13. In the course of trial, altogether seven witnesses were
examined by the prosecution:-
P.W.- 1 Doman Yadav has stated that Dewanti
Devi was died in her sasural on 09.05.1999, due to
poisoning. He has also stated that Ram Sahay Yadav
(present appellant) and her husband have assaulted
her brutally and after getting information of the
incident, he along with family members of the deceased
has also gone to her sasural. She was brought to
Parwati Clinic and Holy Family Hospital, but could not
be admitted and died in the way. Her husband and
brother-in-law were also present, who told that
Dewanti has been died. He also came to know that due
to non-bearing of child, she was poisoned.
In his cross-examination, he admits that he
usually resides at Bikaner, Rajasthan in connection
with his work. Rameshwar Yadav is the maternal Uncle
of the deceased from whom he got information about
this incident.
14. P.W.-2 - Hari Yadav has also stated in the same line
as P.W.-1 and stated that Dewanti Devi died in her
sasural. Her husband and in-laws were always
scuffling with her due to no issue born to her and in
this regard, Panchayati was also convened. Ultimately,
on 09.05.1999, he came to know that Dewanti has
consumed poison and her husband and other family
members brought her to Hospital, but she could not
survive. He also went to sasural of the deceased, where
husband of the deceased told that she has consumed
poison. The deceased was also brought to Parwati
Hospital and Holy Family Hospital, but in the way, she
died. The father of the deceased namely, Bandhan
Yadav lodged case as regards the incident.
15. P.W.-3 Rameshwar Yadav has stated that present
appellant and Dhanpat Yadav (husband of the
deceased) were always scuffling with the deceased due
to no issue born to her since long gap of the marriage.
He has further stated that due to frequent scuffle, she
has consumed poison and died. He has also admitted
that the deceased was never assaulted by accused
persons in his presence.
16. P.W.-4 Budhan Yadav is the uncle of the deceased. He
has proved the contents of his fardbeyan and has
stated that his niece was married with Dhanpad Yadav
about 8-10 years ago. She has no child since after her
marriage. He further states that on 05.10.1999, she
was assaulted in her sasural. There was frequent
scuffle with the deceased by her husband and brother-
in-law due to no issue to her. She was brutally assault.
Thereafter, she was administered poison. He received
information from his brother-in-law, Rameshwar Yadav
(P.W.-3) and went to the matrimonial home of Dewanti
Devi and found her dead body lying on a cot. Her
husband was present there, but present appellant was
absconding. He lodged FIR before the police. His
attention has been drawn towards his statement before
police, wherein he admits to have stated that the
accused persons were frequently assaulting to his niece
due to no issue born to her.
17. P.W.-5 Bandhan Yadav is father-cum-informant of the
deceased. According to his evidence, the deceased was
living quite well in her sasural about four years of her
marriage. Thereafter, she was being assaulted due to
no issue born to her. In this regard, he has also got
panchayat where husband of the deceased assured
that he will not torture the deceased. He has further
alleged that on 06.05.1999 his daughter was assaulted
by Ram Sahay Yadav and her husband Dhanpad
Yadav. She was assaulted and abused by catching her
hairs. The deceased was desiring to come back to her
parental home, but they stopped her and again on
07.05.1999, Ram Sahay Yadav (appellant) came to the
house of this witness and informed that he had slapped
to Dewanti and also requested to come with him to her
sasural, but this witness did not went to matrimonial
home of the deceased and again on 08.05.1999, he sent
his son Prem Chand, but at that time his daughter was
admitted in Hospital. On 09.05.1999 his son-in-law
Dhanpat brought Dewanti, his wife for treatment in
Parwati Clinic Telaiya, where he told that she has
consumed poison. Hence, Hospital declined to admit
her. They brought to Holy Family Hospital, but where
she died. He also noticed mark of injuries on the body
of deceased and there was finger print mark on neck
also.
This witness has not been cross-examined and
further no opportunity was given to the prosecution to
cross-examine this witness.
18. P.W.-6 Sanjay Yadav has only seen the dead body of
the deceased and has expressed no other knowledge
about the occurrence.
19. P.W.-7 - Kuldip Kumar is a 09 years old boy.
According to his evidence, Dewanti was his mousi. He
has also stated that his mousa Dhanpad Yadav was
assaulting her by stones and present appellant was
holding her hairs. He has stated nothing about the
poison, rather admits that on the date of occurrence,
he was present at the house of his mousi (deceased).
20. On the other hand, no oral or documentary evidence
has been adduced by the defence, rather the case of
defence is denial from occurrence and false implication
being brother of the main accused Dhanpad Yadav.
21. It further appears that in the instant case, only post-
mortem report has been marked Exhibit-I without
formal proof and no other documentary evidence has
been adduced. The post-mortem report of deceased
shows following ante-mortem injuries:-
(i) Bruise 3" x ½", 2" x ½" both side of the neck (finger
like impression).The aforesaid bruise are 3" x ½"
left of the neck and 2" x ½" of right of the neck.
(ii) Lacerated wound ½" x ½" separated due to pulling
of earrings. Pinna of the right ear.
(iii) Bruise 2" x ½", 4" x 3" rigal seapular region.
(iv) Bruise 3" x ½", 5" x 3", 2" x 2" - left seapular
region.
(v) Bruise 2" x ½" 3" x 1" left thigh.
The cause of death was opined due to cardio
respiratory failure due to strange poison may be
Organo Phosphorous. Viscera was preserved for
chemical analysis and sent to Forensic Science
Laboratory on 30.07.1999, but no report has been
obtained and produced during trial of the case. It was
also opined that even injuries caused to the deceased
cannot be a cause of death of the deceased.
22. From perusal of the impugned judgment, it is quite
obvious that the learned trial court found that the
charge under Section 302 of I.P.C. has not been proved
by prosecution, but recorded finding that it was the
accused persons, who have abetted the deceased to
commit suicide due to her barrenness. It was also
found that the deceased was frequently subjected to
cruelty through harassment and torture by appellant
both physically and mentally driving her to commit
suicide. It was also found that due to conduct of the
appellant, deceased was compelled to take poison and
it was not her voluntary act. It was also held that
exercising the powers under Section 222 (2) of the
Cr.P.C. the accused can be held guilty for lesser offence
like Section 306 of the I.P.C.
23. The above findings of the learned trial court do not
appear to be justified under law. The offence under
Section 306 of the I.P.C. cannot be categorized as minor
offence to murder punishable under Section 302 of the
I.P.C.
24. The Hon'ble Apex Court in the case of Sangaraboina
Sreenu (Supra) has held that conviction under Section
306 of the I.P.C. assuming that it is minor offence in
relation to Section 302 I.P.C. is illegal inasmuch as the
basic constituents of the two offences are of distinct
and different categories. Therefore, Section 306 of the
I.P.C. cannot be said to be a minor offfence in relation
to an offence under Section 302 I.P.C. within meaning
of Section 222 of Cr.P.C. It was further observed that
while the basic constituent of an offence under Section
302 of the I.P.C. is homicidal death, those of Section
306 I.P.C. are suicidal death and abetment thereof.
25. In the instant case, the prosecution has miserably
failed to prove the cause of death of the deceased. The
prosecution has not proved either the death of the
deceased to be homicidal or of suicidal through any
cogent and reliable evidence.
26. It further appears that the allegation of cruelty meted
with the deceased is also hypothetical, only two
incidents have been pointed out in the evidence of
witnesses, which have happened in quick succession,
just within 2-3 days of the death of the deceased.
Moreover, the present appellant happens to be brother-
in-law of the deceased, having no concern with the
matrimonial dispute between husband and wife. Birth
of child to his elder brother has no relevance with his
own family responsibilities and he has least concerned
with the birth of child to his own brother or sister-in-
law. The entire approach of the learned trial court
appears to be beyond the weight of evidence against the
appellant. He has been convicted and sentenced only
on the basis of conjecture and surmises.
27. In view of above discussions and reasons, I am of the
firm view that the impugned judgment of conviction
and order of sentence of the appellant is not justified
under law, which is hereby set aside.
28. Accordingly, this appeal is allowed.
29. Appellant is on bail, as such he is discharged from the
liability of bail bond. Sureties are also discharged.
30. Pending I.A., if any, stand disposed of.
31. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 28 t h January, 2025.
Sunil / N.A.F.R.
