Jharkhand High Court
Balram Pal @ Swornkar S/O Late Hare Pal vs The State Of Jharkhand on 21 March, 2025
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.888 of 2007
With
Criminal Appeal (S.J.) No.1443 of 2008
(Against the impugned Judgment and order of sentence dated 27.02.2007
passed by 2nd Additional Sessions Judge, Pakur in S.C. No. 162 of 2006 )
In Criminal Appeal (S.J.) No.888 of 2007
1. Balram Pal @ Swornkar S/o Late Hare Pal
2. Manju Devi w/o Balram Pal @ Searnkar
Resident of village-Sunderpur; P.S. Hiranpur, District Pakur (Jharkhand)
...... Appellants
Versus
The State of Jharkhand ......Respondent
In Criminal Appeal (S.J.) No.1443 of 2008
Shankar Pal, son of Balram Swarnkar, resident of Village-Sundarpur, P.S.
Hiranpur, District-Pakur ...... Appellant
Versus
The State of Jharkhand ......Respondent
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For the Appellant(s) : Mr. Ranjan Kr. Singh, Advocate
Mr. Indu Shekhar Gupta, Advocate
For the State : Mr. Vineet Kr. Vashistha, Spl.P.P.
----------
PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-----
JUDGMENT
C.A.V. On 09.11.2024 Pronounced On: 21 . 03 .2025
1. The appeal being Cr. Appeal (SJ) No. 888 of 2007 has been filed by
Balram Pal, father-in-law of the deceased, and Manju Devi mother-in-
law of the deceased, while the Cr. Appeal (SJ) No. 1443 of 2008 has
been filed by Shankar Pal, husband of the deceased.
2. Both the appeal arises out of the common judgment of conviction and
sentence, as such, listed together for analogous hearing and hereby
disposed of by the common order.
3. The instant appeal is preferred against the impugned Judgment of
conviction and order of sentence dated 27.02.2007 passed by the
learned 2nd Additional Sessions Judge Pakur in S.C. No. 162 of 2006
whereby and whereunder the above appellants have been convicted
and sentenced to undergo R.I. for seven years for the offence under
Section 304-B of I.P.C.
4. In nutshell case of prosecution is based upon the fardbeyan of one
Golak Swarnkar, Son of Guhi Swarnkar, village-Umbra, P.S.-Andal,
District- Bardwan (West Bengal) who happens to be maternal uncle
(mama) of deceased, who stated therein that his niece Mamuni Devi,
daughter of late Vasudev Das, resident of Burdwan, West Bengal got
married with Shankar Pal, son of Balram Swarnkar, resident of
Sunderpur, District-Pakur on 03.03.2006 and he had given gift,
utensils of Kansa and gold ring and one ear ring, other articles also
worth of Rs. 40,000/- to her neice and she was sent to her in-laws
house and on the same day Manju Devi (mother-in-law), Balram
Swarnkar (father-in-law) and Shankar Pal (husband) started
demanding Rs. 20,000/- as dowry and also said that if such demand is
not fulfilled then they would not keep the girl and they would
solemnize other marriage of the boy by which they would get more
dowry. Informant requested that as per his capacity he had given gift
and they should show mercy to her and he returned to his place. It is
further alleged by the informant that after lapse of sometime, message
was sent by deceased to the informant that her father-in-law, mother-
in-law, brother-in-law and husband repeatedly giving beatings to her
Criminal Appeal (S.J.) No.888 of 2007
With
Criminal Appeal (S.J.) No.1443 of 2008
and extending threat to the deceased to get Rs. 20,000/- from her
mama, then again informant along with others visited to the in-laws
place of deceased and again tried to make them understand and on
29.04.2006 at about 05.00 a.m. in the morning he got information
telephonically that her niece died on account of stomach-ache at about
04.00 a.m. in the morning, then informant, his sister (mother of
deceased) and other persons visited to Hiranpur, Sunderpur i.e. in-
laws place of his niece, then no one was present in the house and
informant came across the fact from nearby person that his niece was
put to fire by aforesaid persons. She succumbed to burn injury in
Pakur hospital and they had circulated the news that his niece died on
account of fire due to stove burst. Informant entered into the house of
her niece and found that there was sign of fire in the room and an old
stove in broken condition was kept and there was hole in the tank from
outside and as no person was present in the in-laws house of deceased
therefore they came to Pakur hospital where they found dead body of
his niece in burnt condition. On the aforesaid basis, informant alleged
that as dowry to the tune of Rs. 20,000/- was not given, therefore, his
niece was put to fire and accused persons have propounded a story of
stove burst.
5. On the basis of aforesaid fardbeyan, an FIR being Hiranpur P.S. Case
No. 40 of 2006 dated 29.04.2006 under Section 304-B/34 of I.P.C. has
been lodged.
6. After due investigation, chargesheet has been submitted against all the
three appellants as well brother-in-law of the deceased, Narayan Pal.
Chargesheet has been submitted under Sections 302, 201, 304(B) of
I.P.C. and learned court of C.J.M, Pakur has taken cognizance of
offence and case was committed to court of Session and thereafter the
present case got S.C. No. 162 of 2006. Charge under Section 304-B of
IPC has been read over to all the three appellants and one Narayan
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
Pal, brother-in-law of the deceased, to which they denied and claimed
to be tried.
7. To prove its case, prosecution has examined as many as nine
prosecution witnesses and has also bring on record fardbeyan as
Exhibit 1/1. Signature of Informant (P.W. 2) on fardbeyan as Exhibit
1, endorsement of Officer-in-charge of Hiranpur as Exhibit 1/2,
signature of P.W.7 on seizure list as Exhibit 2, signature of P.W. 6 on
seizure list as Exhibit 2/1 and seizure list of stove as Exhibit 2/2, P.M.
report as Exhibit 3 and death inquest report as Exhibit 4.
8. As far as deposition of P.W. 1 Gayatri Devi (mother of deceased),
P.W. 2 Golak Swarnkar (mama of deceased), P.W.3 Kalicharan
Swarnkar (maternal cousin brother of deceased), P.W. 4 Kalyani
Swarnkar (mami of deceased) are concerned, they turned hostile at the
time of their respective deposition before trial court. As far as P.W. 5,
Rajesh Swarnkar who is alleged to have removed deceased alongwith
other villagers to primary health center Hiranpur, P.W.-6, Md. Saiful
Ansari and P.W.-7, Shyam Swarnkar are said to be neighbourer of the
appellants have also not supported the case of prosecution and have
become hostile in the present case. P.W. 8, Dr. Bindu Bhushan is the
medical officer on 29.04.2006 at Pakur Sub-Divisional Hospital and
had conducted postmortem examination on the dead body of Mamuni
Devi. Doctor has found:-
(i) Body was burnt about 65% from head to heel.
(ii) Rigor Mortis was present.
(iii) Burn area from face to upper part of the abdomen including both
upper part of the hands and back upto the buttock.
(iv) Scalp hair was partially burnt.
On dissection it was found:-
(i) On opening the scalp, brain tissues and its membrane were congested.
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
(ii) On opening the chest wall, lungs tissues were congested. Left side of
heart was empty. Right chamber of heart was full of blood.
(iii) On opening the abdomen, the stomach contained turbic liquid. Small
and large intestine contained gas and fecal material. Liver, spleen and
both kidneys were congested. Bladder was empty and the uterus was
non-gravic.
Doctor has opined cause of death was due to hypovolenic shock
following burn injury.
9. P.W. 9, Jai Bahadur Singh is the I.O. of the present case who has
stated in his testimony that he has recorded the fardbeyan of the
informant and same has been marked as exhibit 1/1 and he has also
inspected the place of occurrence and seized one old iron stove and it
was found to be old one and it was in dilapidated condition and it was
found that a hole was made in the tank by chheni and other part of the
stove on which utensils rest was found rusted and there was no
mark/sign of burning on it. The said stove was seized by him in the
presence of witness Md. Saiful Ansari and Shyam Swarnkar.
I.O. has reiterated the restatement of informant and statement of
witness Gayatri Devi, Kalicharan Swarnkar, Kalyani Swarnkar,
Rajesh Swarnkar, Md. Saiful Ansari, Shyam Swarnkar. In cross-
examination he has stated that stove was not sent to expert.
10. Apart from above said prosecution witnesses, defence has examined
two witnesses, D.W.-1 Vishwanath Sah and D.W.-2 Md. Dukhu
Ansari. These two witnesses on behalf of the defence tried to bring on
record the fact that it was accidental fire by which deceased got burnt
injury while she was preparing meal.
11. Learned counsel for the appellants vehemently argued that prosecution
has miserably failed to bring on record the fact that "soon before death
deceased was subjected to cruelty", as none of the prosecution
witnesses have ever stated in their respective testimony that deceased
Criminal Appeal (S.J.) No.888 of 2007
With
Criminal Appeal (S.J.) No.1443 of 2008
was subjected to cruelty at any point of time. Learned counsel further
pointed out that all the prosecution witnesses except the formal
witnesses i.e. P.W. 8 & P.W. 9, who are doctor and I.O. respectively
have not supported the case of prosecution and despite lengthy cross-
examination on behalf of prosecution nothing has been extracted from
them which could support the case of prosecution.
12. Learned counsel for the appellants submitted that before invoking
presumption under Section 113-B of Indian Evidence Act, prosecution
has to prove that deceased was died on account of un-natural death
that too within seven years of marriage and soon before death
deceased was subjected to cruelty.
13. Upon aforesaid premise, submission has been made that it is a case
where learned trial court has not appreciated/analyzed the evidence
available on record in proper perspective and appellants were held
guilty under Section 304-B of I.P.C.
14. Learned Spl.P.P. has submitted that no interference is required by this
Court as there is proper appreciation of evidence by the learned trial
court and it has come to conclusion that deceased was subjected to
cruelty on demand of dowry and it is admitted case that such incident
took place on 29.04.2006, whereas deceased was married on
03.03.2006, well within seven years of marriage. He further pointed
out that this is also admitted case that death of the deceased has been
caused on account of burn injury.
15. Heard learned counsel for the parties and perused the lower court
record.
16. Before analyzing the evidence available on record, it is required to be
noted that before invoking Section 113-B of Indian Evidence Act,
prosecution has to establish the ingredients of Section 304-B of IPC
which reads as under:-
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
"304-B. Dowry death.--(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death
shall be called "dowry death", and such husband or relative shall be deemed to
have caused her death.
Explanation.--For the purposes of this sub-section, "dowry" shall have the
same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (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."
17. A perusal of the above provision would indicate that the main
ingredients of the offence required to be established are:
(a) death of a woman must have been caused by any burns or bodily
injury or her death must have occurred otherwise than under normal
circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or
harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand
for dowry."
18. The presumption drawn relating to dowry death has been
contemplated in Section 113-B of the Evidence Act, 1872, which
states 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 Indian Penal Code (45 of 1860)."
19. Section 304-B of IPC read along with Section 113-B of Indian
Evidence Act, 1872 makes it clear that once the prosecution has
succeeded in demonstrating that a woman has been subjected to
cruelty or harassment for or in connection with any demand for dowry
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
soon before her death by her husband or relative of her husband within
seven years of marriage, a presumption shall be drawn against the said
persons that they have caused dowry death as contemplated under
Section 304-B of IPC. The said presumption comes with a rider
inasmuch as this presumption can be rebutted by the accused on
demonstrating during the trial that all the ingredients of Section 304-B
of IPC have not been satisfied.
20. As stated in preceding paragraph, this Court finds that mama, mami,
maternal brother of the deceased resiled from their earlier respective
statement recorded under Section 161 of Cr.P.C. and they were
declared hostile by the learned trial court.
21. From evidence available on record and statement of
accused/appellants under Section 313 of Cr.P.C, it is clear that
marriage of deceased Mamuni Devi solemnized with Shankar Pal on
03.03.2006 and alleged incident took place on 29.04.2006. From the
post mortem report vide Exhibit-3 and evidence of doctor P.W. 8, it is
clear that deceased got burnt about 65% and she died on account of
burn injury. So, undoubtedly prosecution has been able to established
that deceased died on account of burn injury within two months of the
marriage. As far as other ingredient i.e. deceased was subjected to
cruelty soon before death on account of dowry is concerned, this
Court finds that none of the prosecution witness has uttered a word
about inflicting cruelty by the hands of appellants in their evidence
recorded before trial court. However, P.W. 2 Golak Swarnkar, who
has been declared hostile by the trial court has stated in his cross
examination on behalf of prosecution, that he had stated to police that
he solemnized marriage of his niece Mamuni Devi(deceased) with
Shankar Pal, son of Balram Swarnkar, resident of Sunderpur, District
Pakur according to Hindu Rites and by way of gift they had given
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
utensils of Kansa and gold ring and ear ring to his niece and articles
worth of Rs. 40,000/-. He has also admitted that he had stated to the
police that on the day of vidai of his niece, Manju Devi mother-in-law
of deceased, Balram Pal father-in-law of deceased, Shankar Pal
husband of the deceased started demanding Rs. 20,000/- as more
dowry, thereafter this witnesses categorically denied that he has ever
stated to police that accused persons told him that if Rs. 20,000/- was
not given to him then they would not keep the girl and would
solemnize second marriage by which they would get more dowry.
This witness further denied all the fact as allegedly stated by him
under Section 161 of Cr.P.C. when it was confronted to him.
22. Impugned Judgment reveals that learned trial court has considered the
fact as stated by P.W. 2 that he has stated before police that at the time
of vidai Rs. 20,000/- was demanded by accused persons as more
dowry and on this premise comes to conclusion that third ingredient of
Section 304-B of I.P.C. has also fulfilled. Learned trial court further
come to conclusion that the stove which was allegedly seized by I.O.
was not in a working condition and there was no evidence found on it
that it was recently being used. However, I.O. has stated in his
testimony that at the time of his visit earthen chulha, wood and goitha
was found in the house where incident took place. On this, learned
trial court has come to conclusion that false plea has been taken by the
accused and, as such they were not able to rebut the presumption,
therefore, found appellants guilty in the present case.
23. This Court finds that none of the witnesses i.e. either P.W.1, P.W. 2,
P.W.3, P.W. 4, P.W. 5, P.W.6, P.W 7 has ever stated their respective
testimony that deceased was subjected to cruelty by the appellants
rather P.W. 1 has stated in cross-examination by accused that
deceased was having good relation with her husband and in-laws.
Similarly, P.W. 2 has also stated that deceased was having good
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
relation with in-laws and deceased never made complaint against her
in-laws. Similarly, P.W. 3 has also stated that his sister (since
deceased) was living at her in-laws house peacefully and happily.
P.W. 4 has also stated that deceased was very happy in her sasural. Of
course, in the cross examination on behalf of prosecution, P.W. 2 has
stated that he stated to police regarding demand of Rs. 20,000/- as
more dowry by the appellants but they did not pay. P.W. 2 at the same
time in cross-examination on behalf of defence has categorically
stated that he does not know hindi and whatever daroga ji has written
on the paper was not read over to him and his niece was having no
grievance with her in-laws and they are also having no complaints
against them.
24. Recently, Hon'ble Supreme Court in the case of Karan Singh Vs.
State of Haryana reported in 2025 SCC OnLine SC 214, after
appreciating evidence at length and applying the material ingredients
of the offence punishable under Section 304 B of I.P.C. did not find
that deceased was subjected to cruelty soon before her death and
further observation was made that the Trial courts are committing the
same mistake repeatedly and not considering the ingredients of
Section 304-B of I.P.C.
25. Considering the legal proposition and facts as stated by P.W. 2 as well
as other witnesses as discussed above, it is very difficult for this Court
to come to conclusion that soon before death deceased Mamuni Devi
had been subjected by the appellants to cruelty or harassment for any
demand of dowry, so statutory presumption under Section 113B of
Indian Evidence Act, 1872 cannot be invoked in the present case.
Therefore, the prosecution has failed to establish above said ingredient
of Section 304-B of I.P.C. in the present case.
26. The above stated aspects have not been considered by the learned trial
court, therefore, this impugned Judgment of conviction and order of
Criminal Appeal (S.J.) No.888 of 2007
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Criminal Appeal (S.J.) No.1443 of 2008
sentence dated 27.02.2007 passed by the learned 2nd Additional
Sessions Judge Pakur in S.C. No. 162 of 2006 is hereby set aside.
27. In the result, the appeals are allowed.
28. Since, the appellants are on bail, they are discharged from the liability
of their respective bail bonds.
(Arun Kumar Rai, J.)
Jharkhand High Court, Ranchi
Rajnish /- N.A.F.R.
Criminal Appeal (S.J.) No.888 of 2007
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