Ajit Kumar vs State Of Jharkhand

I.A. No. 5232 of 2019

Heard learned Senior Counsel for the appellant and the State on the prayer for suspension of sentence made through instant interlocutory application.

This appellant (husband) along with the mother-in-law Indu Devi stood convicted in connection with Sessions Trial No. 301 of 2008 by the impugned judgment of conviction dated 02.02.2017 by the learned Court of Additional Sessions Judge-III, Ramgarh for the offence punishable under Section 304B/34 of the I.P.C and have been sentenced to undergo R.I. for 10 years by the impugned order of sentence dated 06.02.2017.

Learned Senior Counsel for the appellant in support of the prayer inter alia has made the following submissions:

It is submitted that the marriage of the victim took place on 07.02.2006; relationship between the spouses were cordial as is apparent from the statement of the mother P.W.3 Gulab Jhari Devi at para 7 during trial; victim was carrying pregnancy of 6 months at the time of occurrence; the demand of dowry has not been explicitly proved by any of the related witness such as Roop Lal Ram (P.W.1) father, Prakash Ram (P.W.2) brother, Gulab Jhari Devi (P.W.3) mother except bald allegation that one A.C. car was being demanded as per Surendra Ram (P.W.5). The Medical Officer Dr. Tulsi Mahto (P.W.6) who has conducted the post mortem on the dead body of the victim and proved the report, marked as Ext.4 opined that death occurred due to respiratory failure due to oedema of lungs resulting from pneumonitis but he did not find any mechanical injury either external or internal. There is no evidence of pressure over nose, mouth, neck and chest. Both the lungs were oedematus with features of consolidation. Frothy fluid came out on cutting of the lungs. The victim was found to be carrying female foetus 36 cm in length of approximately 6 months of pregnancy. The FSL report (Ext.5) was received after 9 months which showed presence of Aluminium Phosphide commonly known as 'Celphos' in the viscera of the victim. The Medical Officer Dr. Tulsi Mahto (P.W.6) during cross examination has stated that meaning of oedema is inflammation of lung with swelling. Pneumonitis means inflammation of lungs. Death may be caused due to disease including toxicant or poison. Defence had during course of argument after conclusion of the trial tried to prove that 'Celphos' poisoning would lead to circulatory failure and not respiratory failure. Thus, there is a grave doubt as to the cause of death also. The Investigating Officer of the case has also not been examined. In such circumstances, appellant who has remained in custody for 2 months during trial and thereafter since the date of his conviction till date should be enlarged on bail on grant of privilege of suspension of sentence during pendency of the appeal.

Learned counsel for the State has strongly opposed the prayer. It is submitted that within 10 months of the marriage death has occurred in the matrimonial house in an unnatural circumstances in the background of demand of dowry by the appellant and his mother and also instances of cruelty before the death. The FSL report (Ext.5) shows presence of pesticide Aluminium Phosphide "Celphos", which the doctor has opined to be the reason for Pneumonitis i.e., inflammation of lungs, which has caused death. Appellant, who is the husband, has not been able to discharge his onus under Section 106 of the Evidence Act, though death has occurred in the matrimonial house. Therefore, considering the period of custody of about 2 years 7 months only, appellant should not be enlarged on bail on grant of privilege of suspension of sentence during pendency of the appeal.

We have considered the submission of learned counsel for the appellant and the State and taken note of the facts and circumstances including the relevant material evidence relied upon by learned counsel for the rival parties. It appears that the victim was married on 07.02.2006 and died in an unnatural circumstances in the matrimonial house on 21.12.2006. As per the viscera report (Ext.5), a poisonous substance "Celphos" was found in the viscera and the doctor has opined that death has occurred due to oedema of lungs resulting from pneumonitis.

Considerable argument has been made on the cause of death during course of submission of the parties. However, for the purpose of consideration on the prayer of suspension of sentence, we are not inclined to enter into merits of such issue. In totality of facts and circumstances noted herein above, we are not inclined to enlarge the appellant on bail on grant of privilege of suspension of sentence at this stage. Accordingly, prayer made in instant interlocutory application is rejected.

I.A. No.5232 of 2019 stands dismissed.