Sunita Devi @ Tuniya vs The State Of Bihar
2021 Latest Caselaw 2707 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.2447 of 2018
       Arising Out of PS. Case No.-84 Year-2016 Thana- KORHA District- Katihar
======================================================

Sunny Sharma @ Sanni Sharma, Son of Shushil Sharma, Resident of Village- Mushapur, P.S.- Korha, District- Katihar.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 1455 of 2018 Arising Out of PS. Case No.-84 Year-2016 Thana- KORHA District- Katihar ====================================================== Sunita Devi @ Tuniya, wife of Shushil Sharma, Resident of Village- Mushapur, P.S.- Korha, District- Katihar.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 2447 of 2018) For the Appellant/s : Mr. N. K. Agrawal, Sr. Advocate.

Mr. Krishna Chandra, Advocate.

For the Respondent/s : Mr.Sri Abhay Kumar, APP. (In CRIMINAL APPEAL (SJ) No. 1455 of 2018) For the Appellant/s : Mr. N. K. Agrawal, Sr. Advocate.

Mr. Krishna Chandra, Advocate.

For the Respondent/s : Mr. Sujit Kumar Singh, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 28-06-2021 These two appeals arise out of common judgment

of conviction and sentence dated 14.03.2018 passed in Sessions

Trial No. 98 of 2017 by learned 3rd Additional Sessions Judge,

Katihar whereby both the appellants were found guilty for

offence under Section 304B/34 of the Indian Penal Code and

have been sentenced to undergo rigorous imprisonment for 10 Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

years. Besides imprisonment, a fine of Rs.3000/- has been

imposed against both the appellants and in default of payment of

fine, 6 months rigorous imprisonment has been awarded.

2. The prosecution case is that Mr. Ajit Prasad

Singh, the officer-in-charge of Korha Police Station (PW-7) was

on patrolling duty in the evening of 28.04.2016. He got

information that in village Musapur within Korha Police

Station, a female had committed suicide by hanging herself. To

verify the information, the police team including PW-7 reached

village Musapur at the house of the appellants. A room was

found closed and the back side window was open. PW-7 saw

that a female was hanging with the ceiling fan. PW-7 informed

to the senior police officer and called services of Circle Officer,

Korha as local Magistrate and in presence of the public

representatives, the door of the room was broken, the hanging

body was brought down and an inquest report was prepared

which is available as Ext.-5. Thereafter, father of the deceased,

namely, Chandrashekhar Prasad (PW-10) was informed. In the

next morning at 10:30 a.m. on 29.04.2016, PW-10 reached at

the police station and gave his written report. On the basis

whereof, Korha P.S. Case No. 84 of 2016 was registered under

Section 304B/34 of the Indian Penal Code and after Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

investigation, the police submitted chargesheet. Accordingly the

appellants were put on trial.

3. The prosecution case as disclosed in the written

report of PW-10 Chandrashekhar Prasad is that his daughter

Suman Devi was married with appellant Sunny Sharma on

24.04.2015. According to capacity and freewill, gifts were given

at the time of marriage. However, after few days, the daughter

of the informant reported that appellant Sunny Sharma asked to

demand Rs. 5 lacs from the informant for opening a dispensary

and Rs. 4 lacs for a four wheeler. In due course, the daughter of

the informant went to the house of the informant. Again on

insistence of her in-laws, she came to her matrimonial house

and for non-fulfillment of the aforesaid demand, all the family

members committed dowry death on 28.04.2016. Another

appellant is mother of appellant Sunny Sharma.

4. Mr. N. K. Agrawal, learned Senior counsel for

the appellants contends that a suicidal note left by the deceased

was seized by the police from the room of the deceased where

her dead body was found and the suicidal note has been brought

on the record as Ext.-A. The genuineness of the suicidal note to

be in the writing of the deceased has not been denied by any of

the prosecution evidence. The suicidal note has been proved by Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

PW-2 who is a relative of the deceased. The suicidal note does

not speak about any demand of dowry or any other illegal

demand by any of the appellants or any other in-laws.

A careful perusal of the same would reveal that the

deceased was in depression as she found herself unable to adjust

in the family of the appellants for the reason that none of the

family members were happy with her in spite of her best efforts

for peaceful life in the family. According to learned counsel,

Ext.-A is a document of the prosecution which cannot be

ignored and the same makes the testimony of other prosecution

witnesses on demand of dowry and torture for the same, shaky

and unworthy of credence.

5. Mr. Sujit Kumar Singh, learned APP for the State

contends that the learned trial Judge has discussed about Ext.-A

in the impugned judgment and has placed reliance on the

testimony of the prosecution witnesses, especially PW-8 Lalita

Devi, the mother of the deceased, PW-9 Sunita Devi, the aunt of

the deceased and PW-10 Chandrashekhar Prasad, the father of

the deceased, who have consistently deposed about the demand

of dowry and torture for the same soon before death. Since the

victim died within a year of her marriage in unnatural

circumstances in the house of the appellants and the prosecution Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

witnesses have consistently alleged about demand of dowry and

torture for the same, the conviction should not be interfered for

mere technicalities.

6. PW-1 Umesh Yadav has been declared hostile by

the prosecution as he deposed that he knows nothing about the

occurrence.

PW-2 Anil Kumar has also been declared hostile by

the prosecution. During cross-examination, the suicidal note

was placed before him and he admitted that the writing and

signature on that is of the deceased. On his proof, suicidal note

was marked as Ext.-A.

PW-7 the investigating officer in Para-18 of his

evidence stated that in Para-17 of the case diary he has

mentioned about the suicidal note seized by him and the suicidal

note was identified by the father of the deceased (PW-10) who

admitted that the writing is of the deceased.

PW-3 Rajendra Yadav deposed that wife of Sunny

Sharma committed suicide. On being called by the police, he

had gone to the house of the appellant Sunny Sharma. So many

people including the Circle Officer was there, the room was

locked from inside, the door was broken to open and the dead

body was taken out. Inquest report was prepared in his presence Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

and he had signed on the inquest report. The inquest report is

Ext.-5 on the record.

PW-4 Md. Nasiruddin is a witness on the seizure

list and has admitted that seizure was made in his presence and

the same bears his signature. The seizure list is available as Ext.-

8. The same refers to seizure of the suicidal note besides other

material including a printed saree and a diary containing writing

in Hindi and English.

PW-5 Dr. Surendra Jit Sarkar and PW-6 Dr. Amar

Kumar Deo had performed jointly post mortem examination,

marked as Ext.-3 and the doctors were of the opinion that death

was due to asphyxia arising out of hanging. The inquest report

as well as post mortem report is specific that no other injury on

any part of the body of the deceased was found.

PW-7 the investigating officer besides supporting

the investigation done by him, deposed that he had prepared the

seizure list of the suicidal note of the deceased.

PW-8 Lalita Devi, PW-9 Sunita Devi and PW-10

Chandrashekhar Prasad who are parents and aunt of the

deceased have consistently deposed that after marriage, there

was demand of dowry in the form of 5 lacs cash and a four-

wheeler from the deceased and other family members and for Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

non-fulfillment of dowry demand, dowry death was caused.

7. On careful perusal of the suicidal note addressed

separately to the husband of the deceased, to the brother of the

deceased, to the father of the deceased and to the mother of the

deceased, none of the suicidal notes contains any allegation of

demand of dowry or any other illegal demand. The only

statement is regarding unhappy relationship with the family

members and time without numbers, the deceased stated that she

was also responsible for that though she was not intending to be

so.

8. The suicidal note, uncontroverted by the

prosecution, creates serious doubt that the case was of dowry

death. In face of the suicidal note, the testimony of the

prosecution witnesses cannot be wholly relied as the suicidal

note makes the prosecution case doubtful. There is no material

in the form of any complain or written letter of the period prior

to death. The learned trial Judge has also not said that the

suicidal note contains averment regarding demand of dowry and

torture for non-fulfillment of the same. Even if it is assumed, as

has been done by the learned trial Judge, that the victim felt

tortured in the matrimonial family that would not suffice to

draw the ingredients of dowry death. Hence, in my view, the Patna High Court CR. APP (SJ) No.2447 of 2018 dt.28-06-2021

appellants deserve acquittal giving benefit of doubt.

9. Accordingly, the impugned judgment and

sentence are hereby set aside and these appeals are allowed.

Let the appellant Sunny Sharma who is in custody

since last five years be set free at once.

Appellant Sunita Devi is on bail. She is hereby

exonerated from the liability of the bail bond.

                                                                           (Birendra Kumar, J)

mantreshwar/
AFR/NAFR                N.A.F.R.
CAV DATE                22.06.2021
Uploading Date          28.06.2021
Transmission Date       28.06.2021