[Cites 13, Cited by 0]
Jharkhand High Court
Mithilesh Kumhar @ Mithilesh Pandit vs The State Of Jharkhand on 28 November, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1049 of 2024
With
I.A. No. 9306 of 2025
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Mithilesh Kumhar @ Mithilesh Pandit, aged about 24 years, s/o Sri
Dulal Kumhar, R/o Narkopi, P.O. & P.S. Topchanchi, District-
Dhanbad.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Shailesh Kr. Singh, Advocate
For the Respondent : Mr. Satish Prasad, A.P.P.
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CAV/Reserved on 13.11.2025 Pronounced on 28/11/2025
Per Sujit Narayan Prasad, J.
I.A. No. 9306 of 2025:
1. The instant interlocutory application, under Section 389(1) of the
Code of Criminal Procedure, has been filed on behalf of applicant for
suspension of sentence in connection with the Judgment of
conviction dated 22.07.2024 and order of sentence dated 24.07.2024
passed by the learned Additional Sessions Judge-VII-cum-
FTC(CAW),Dhanbad, in Sessions Trial No.751 of 2023, in
connection with Topchanchi P.S. Case No. 82 of 2023, whereby and
whereunder, the applicant has been convicted and sentenced to
undergo R.I. for ten years for the offence under Section 304B of IPC.
Factual Matrix:
2. The prosecution story, in brief, requires to be referred herein which
read as under:
The informant has given written report before O/c,
Topchanchi P.S. alleging therein that on 09.12.2022, Mithilesh
Kumhar induced and trapped her daughter Priya Kumari into love
and solemnized inter-caste marriage with her. It is further alleged
that after marriage, Mithilesh Kumhar, his father Dulal Kumhar,
mother Indiya Devi, brother Ranjit Kumar and sister started
demanding dowry of Rs. 5 lacs and on non-fulfillment of demand
she was subjected to mental and physical torture.
On 01.06.2023 at 02:00 p.m. the accused persons including the
applicant herein, killed her by tying rope in her neck/ strangulation.
3. On the basis of written report of the informant, Topchanchi P.S. Case
No. 82/2023 was registered against Mithilesh Kumhar, Dulal
Kumhar, Indiya Devi, Ranjeet Kumhar and Sunita u/s 304-B/34 of
the IPC on 01.06.2023. After completion of investigation, I.O. of the
case submitted charge-sheet against Mithilesh Kumhar @ Mithilesh
Pandit u/s 304-B/34 of the IPC by keeping the investigation pending
against rest accused persons.
4. Accordingly, the trial proceeded and the present applicant was found
guilty by the learned trial court and accordingly, has been convicted
and sentenced to undergo R.I. for ten years for the offence under
Section 304B of IPC.
5. The present application has been filed on behalf of applicant for
suspension of sentence during pendency of the appeal.
Submission on behalf of the Applicant:
6. Mr. Shailesh Kr. Singh, learned counsel for the applicant, at the
outset, has submitted that earlier interlocutory application being I.A.
No. 9926 of 2024 was filed by the present applicant/appellant for
suspension of sentence but vide order dated 18.02.2025 the said I.A.
had been dismissed as not pressed.
7. Thereafter, the present interlocutory application has been filed on
behalf of applicant renewing the prayer for suspension of sentence
on the ground that the judgment of conviction is without considering
the facts and circumstances of the case as the applicant is innocent
and has falsely been implicated in this case.
8. It has been submitted by the learned counsel for the applicant that
although the charge has been framed under Section 304-B/34 of IPC
but it is not found in the entire evidence that the deceased was
subjected to cruelty or harassment by the appellant soon before her
death.
9. It has also been submitted that Section 34 of IPC has been added
without taking into consideration that the prosecution did not find
any sufficient evidence to put any other relative on trial and it is the
applicant who alone faced the trial.
10. It has also been submitted that the learned trial court has also failed
to appreciate the conduct of the applicant that after his wife
committed suicide, he was present in the house and did not try to
flew away rather he was arrested by the police from the house itself.
11. It has also been submitted that the learned trial court has failed to
take into consideration that no complaint was lodged regarding the
demand of dowry by the applicant, as such, the allegation as has
been levelled against the applicant, is completely false.
12. Learned counsel, apart from these grounds, has prayed for
suspension of sentence on the ground that applicant is suffering from
HIV(AIDS) and for this learned counsel has referred to medical
report Anexure-1 of the applicant.
13. Learned counsel for the applicant, on the aforesaid premise, has
submitted that, therefore, it is a fit case for suspension of sentence so
that the applicant be released from judicial custody.
Submission on behalf of the Respondent:
14. While on the other hand, Mr. Satish Prasad, learned Additional
Public Prosecutor appearing for the respondent-State has vehemently
opposed the prayer for suspension of sentence.
15. It has been submitted that the informant Sanoj Rawani, is the father
of the deceased, who has been examined as PW.7, has corroborated
his first version made in written report and has stated in his
testimony that after marriage of her daughter, applicant had started
demanding Rs. 5 lakh as dowry and when the demand was not
fulfilled applicant started torturing her and ultimately the accused
person/applicant committed murder of her daughter just within few
months of her marriage.
16. It has also been submitted that the doctor has been examined as PW-
8, who has proved postmortem report, which has been marked as
Ext.-P-3/PW.8. According to postmortem report and the statement of
doctor, the death of deceased was due to asphyxia as a result of
hanging and he has also stated about the possibility of homicide.
17. Learned counsel for the respondent/state, on the aforesaid premise,
has submitted that alleged offence fully made out against the
applicant and therefore, it is not a fit case for suspension of sentence,
as such, the present interlocutory application may be rejected.
Analysis:
18. We have heard the learned counsel for the parties and appreciated the
submission made on behalf of both the parties as also gone through
the trial court record.
19. It is evident that earlier the prayer for suspension of sentence of the
present applicant had been dismissed as not pressed by this Court
vide order dated 18.02.2025 passed in I.A. No. 9926 of 2024.
Thereafter, the present interlocutory application has been filed
renewing the prayer for suspension of sentence during pendency of
the appeal.
20. Before adverting to the facts of the instant case, it needs to refer
herein the settled position of law that there is difference between
grant of bail in case of pre-trial arrest and suspension of sentence,
post-conviction. In the earlier case, there may be presumption of
innocence, however, in case of post-conviction bail, by suspension of
operation of the sentence, there is a finding of guilt and the question
of presumption of innocence does not arise. Further the Court while
considering an application for suspension of sentence is to consider
only the prima facie merits of the appeal.
21. The Hon'ble Apex Court in the case of Preet Pal Singh vs. State of
U.P., (2020) 8 SCC 645 has observed that there is difference
between grant of bail in case of pre-trial arrest and suspension of
sentence, post-conviction. In the earlier case, there may be
presumption of innocence, which is a fundamental postulate of
criminal jurisprudence, and the courts may be liberal, depending on
the facts and circumstances of the case, however, in case of post-
conviction bail, by suspension of operation of the sentence, there is a
finding of guilt and the question of presumption of innocence does
not arise. For ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
"35. There is a difference between grant of bail under Section
439 CrPC in case of pre-trial arrest and suspension of
sentence under Section 389 CrPC and grant of bail, post
conviction. In the earlier case, there may be presumption of
innocence, which is a fundamental postulate of criminal
jurisprudence, and the courts may be liberal, depending on
the facts and circumstances of the case, on the principle that
bail is the rule and jail is an exception, as held by this Court
in Dataram Singh v. State of U.P. [Dataram Singh v. State of
U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However,
in case of post-conviction bail, by suspension of operation of
the sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the principle
of bail being the rule and jail an exception attracted, once
there is conviction upon trial. Rather, the court considering
an application for suspension of sentence and grant of bail, is
to consider the prima facie merits of the appeal, coupled with
other factors. There should be strong compelling reasons for
grant of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and compelling
reason must be recorded in the order granting bail, as
mandated in Section 389(1) CrPC."
22. The learned counsel for the applicant/appellant has contended that
although the charge has been framed under Section 304-B/34 of IPC
but it is not found in the entire evidence that the deceased was
subjected to cruelty or harassment by the appellant soon before her
death.
23. Per contra the learned counsel for the state has vehemently opposed
the prayer for bail of the appellant and had contended that informant
Sanoj Rawani who is the father of the deceased, has been examined
as PW.7, has corroborated his first version made in written report
and had stated in his testimony that after marriage of her daughter,
applicant had started demanding Rs. 5 lakh as dowry and when the
demand was not fulfilled applicant started torturing her and
ultimately the accused person/applicant committed murder of her
daughter just within few months of her marriage.
24. At this juncture, in view of contentions made by the learned counsel
for the parties, it is pertinent to analyses the law on dowry death.
Section 304-B IPC, which defines, and provides the punishment for
dowry demand. 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.
25. Thus, it is evident that there are three conditions in the aforesaid
statute and if those three conditions are fulfilled then 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.
26. 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.
27. 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:
(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."
28. It needs to refer herein that 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
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.
29. 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:
"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)."
30. 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.
31. 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 21 Singh v. State of Punjab
[Gurmeet Singh v. State of Punjab, (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-B IPC 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)
32. In the backdrop of the aforesaid settled legal position, we are re-
adverting to the factual aspect of the instant case. Admittedly, the
marriage between deceased and the accused/applicant was
solemnized on 09.12.2022, and the death of the lady occurred on
01.06.2023 which was about six months from the date of marriage.
Thus, death of the victim lady happened 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.
33. Further, it is evident from the testimony of PW-6 Anjani Devi
(mother of the deceased) and PW-7 Sanoj Rawani (father of the
deceased) that demand of dowry was made from them by the
accused/applicant.
34. PW-6 had specifically stated that when she solemnized her younger
daughter's marriage, then Mithilesh Kumar (present applicant)
started demanding dowry of Rs. 5 Lacs. and when she refused to
give money, he used to threaten that he would sell her daughter in
Mumbai and later on, he killed her daughter.
35. PW-7 had also substantiated the factum of demand of Rs. Rs. 5 Lacs,
and had stated in his testimony that Mithilesh Kumar (present
applicant) induced his daughter Priya Kumari into love and
solemnized marriage with her and after the marriage, Mithilesh
Kumar told his daughter to bring dowry of Rs. 5 Lacs and when the
money was not given, he started torturing his daughter. After some
days, Mithilesh Kumar, his sister, elder brother and mother killed his
daughter by strangulation.
36. Thus, from the aforesaid testimonies of P.W.6 and P.W.7, prima
facie the demand of Rs. 5 Lacs as well as torture caused by the
appellant/applicant upon the deceased has been established.
37. Further P.W.-8 is the doctor, who had conducted postmortem
examination on the dead body of the deceased and opined that
ligature mark is antemortem and stated that cause of death is due to
Asphyxia as a result of hanging. Thus, from the testimony of P.W.8
it is apparent that the death of deceased had not occurred in normal
circumstance, therefore, the unnatural death of deceased is proved
from the prosecution evidence.
38. Thus, on the basis of discussion made hereinabove, prima facie all
the requisite condition for application of Section 304 B IPC appears
to be meted out and further by virtue of Section 113-B of the
evidence Act presumption is also there, therefore, the contention of
the learned counsel for the applicant/appellant that there is no case
made out under Section 304 B against the present applicant, is not
tenable in the eye of law.
39. Further, applicant has also taken a ground for his suspension of
sentence that he is suffering from HIV(AIDS) by annexing his
medical report Anexure-1 to this Interlocutory Application. But, this
ground for suspension of sentence is not tenable, as on 15.09.2025,
the officials from Central Jail, Hazaribagh, were present before this
Court and had stated that the applicant is kept in isolation and he is
getting treatment in ART Centre, Hazaribagh.
40. Thus on the basis of discussion made hereinabove and further taking
into consideration the import of Section 304-B IPC and 113-B
Evidence Act as also taking into consideration the ratio of the
judgment rendered by the Hon'ble Apex Court in the case of Preet
Pal Singh vs. State of U.P.(supra), this Court is of the view that it is
not a fit case where the sentence is to be suspended during pendency
of the appeal.
41. Accordingly, the instant Interlocutory Application stands dismissed.
42. It is made clear that any observation made hereinabove will not
prejudice the case of the parties on merit since the appeal is lying
pending for its consideration.
(Sujit Narayan Prasad, J.)
I Agree,
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
28th November, 2025
Saurabh/-
A.F.R.
Uploaded on:28.11.2025
