Bhaba Das And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Three persons were named as suspected accused in Jadugora P.S. Case No.29 of 1998, which was registered on the basis of the written report of Subhas Chandra Das, the father of the deceased, namely, Sanchita Rani Das given by him to the police at 17:00 hrs. on 07.08.1998.

The appellants who were named as accused in the First Information Report were sent up for trial on the charge under section 302/34 I.P.C and the alternative charge under section 304-B I.P.C.

The learned 2nd Additional Sessions Judge, Jamshedpur has convicted them on both counts. They have been sentenced to undergo R.I for life under section 302/34 I.P.C; no sentence has been passed for the offence punishable under section 304-B I.P.C.

During the trial, the prosecution has examined 8 witnesses; the informant is P.W.7 and the brother-in-law, the grand-father and the uncle of the deceased, namely, Sanchita Rani Das @ Sangeeta have also been examined during the trial.

Dr. Kapileshwar Nath who has conducted autopsy on the dead-body of Sanchita Rani Das @ Sangeeta has observed Dermo-epidermal burn of whole body except lower half of left leg and 1/3 of lower part of right leg. He has also found blackening due to shoot deposit over abdomen, chest and face.

In the opinion of the doctor the burn injuries were ante-mortem in nature and death was caused due to shock caused by the burn injuries.

In his fardbeyan, the informant has stated that in the night of 05.08.1998 the elder brother-in-law of his daughter, namely, Madan Das came to his house and informed him that his daughter has been badly burnt. Upon such information the informant went to the house of his daughter alongwith his brother Nabdeep Das, his father Nani Gopal Das and brother-in-law Jitendra Nath Das. There he found that his daughter who was in burnt condition was treated by a private doctor, namely, S. Chatterjee. His daughter was taken to U.C.I.L. Hospital at Jadugora, however, the doctors referred her for further treatment to T.M.H., Jamshedpur. The informant has stated that when he brought his daughter at T.M.H., Jamshedpur, the doctors there declared her dead. In his fardbeyan, the informant has suspected that the husband of his daughter, namely, Ram Ratan Das, Pagru Das and Bhabo Das have killed his daughter by setting her on fire. He has further stated that his daughter while taken to T.M.H. Hospital has informed him that due to demand of dowry of Rs.3,000/- these accused persons have killed her. In the court, the informant has reiterated a similar story about the incident. He says that at about 2:00 a.m on 05.08.1998 Madan Das came to his house at Domjuri and informed him that his daughter has sustained burn injuries. He has reiterated that his daughter has informed him that in the night of 04.08.1998 the accused persons sprinkled kerosene oil on her and set her ablaze. The reason why the accused persons have killed her was demand of Rs.3,000/- as balance dowry amount by them.

P.W.1 is the brother-in-law of the deceased. He says that at about 11:00 p.m. in the night of 04.08.1998 when he came back home, Ram Ratan Das informed him about Sanchita catching fire by Dhibri and asked him to inform her father. He has spoken about his visit in the night informing the father of Sanchita about the serious burn injuries to his daughter. The informant has named four persons, namely, Subhash Das, Nani Gopal Das, Nabdeep Das and Jitendra Das who according to him had gone to the village of his daughter to see her. He has seen Dr. Chatterjee treating Sanchita Rani Das. P.W.2 is a formal witness and P.W.4 who is the uncle of Sanchita Rani Das, the deceased, has stated that marriage of Sanchita was solemnized with Ram Ratan Das in the year 1996. He has also alleged that when Sanchita was being taken to T.M.H. Hospital she informed them that the accused persons have set her on fire due to non-fulfilment of the balance amount of dowry of Rs.3,000/-. The maternal uncle of the deceased, namely, Jitendra Nath Das has been examined as P.W.5 and the grand-father of the deceased, namely, Nani Gopal Das has been examined as P.W.6. Both the witnesses have narrated a similar story as portrayed by the informant in his fardbeyan.

Admittedly, there is no eye-witness to the actual occurrence. Madan Das-P.W.1 has deposed in the court that Sanchita Rani Das died because she caught fire due to fall of a dhibri in the night. The maternal uncle of the deceased has also stated that when they had gone to the house of the accused persons Ram Ratan Das informed them that Sanchita caught fire by fall of dhibri (small open lamp). These witnesses have not been declared hostile by the prosecution. The accused-Ram Ratan Das when he was examined under section 313 Cr.P.C has stated that his wife has died due to burn injuries as she caught fire from a dhibri.

It is a well-settled principle in criminal jurisprudence that the prosecution must establish its case to the hilt, that is, beyond all shadows of reasonable doubt. To establish a case under section 304-B I.P.C, it is necessary that the prosecution must establish the following ingredients, (i) death has been caused within seven years of marriage, (ii) the death has been caused in a circumstance other than under normal circumstances, and (iii) soon before her death the victim was subjected to cruelty or harassment by the husband or any relative of the husband or in connection with any demand of dowry. The offence under section 304-B IPC has been inserted in the Indian Penal Code by way of Amendment Act, 1986. A corresponding amendment was made in the Indian Evidence Act, 1872 by which section 113-B was inserted to raise a presumption of dowry death. The language employed in section 304-B IPC and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with the demand of dowry. In "Baijnath and others Vs. State of Madhya Pradesh" reported in (2017) 1 SCC 101, the Hon'ble Supreme Court has dealt with the presumption under section 113-B of the Evidence Act, 1872 and proof of cruelty or harassment, thus;

"29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harrassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.

A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the abovereferred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof."

On demand of dowry whatever evidence the prosecution has led it does not disclose that soon before her death Sanchita Rani Das was subjected to demand of dowry. All the witnesses have stated that Sanchita Rani Das when she was taken to T.M.H. Hospital has informed them that the accused persons have set her on fire in connection to demand of balance dowry amount. However, no evidence has been brought on record regarding the time when such demand was made by the appellants. It is also not a case of the prosecution that in respect of demand of dowry any complaint was previously lodged with the police. The uncle of the deceased admits in his cross-examination that no panchayati in respect of the demand of dowry was convened. The allegation of demand of dowry or harassment to the victim by the appellants, thus, has not been proved.

The First Information Report was lodged more than two days after Sanchita Rani Das was allegedly set on fire; the occurrence took place in the intervening night of 04.08.1998/ 05.08.1998 and a written report has been given by Subhash Chandra Das on 07.08.1998 in the evening. It has also come on record that at the time of cremation of Sanchita Rani Das several villagers and the relatives of the deceased were present. The defence has examined one witness to prove the fardbeyan of Ram Ratan Das. The uncle of the deceased, namely, Nabdeep Das is a witness to the fardbeyan of Ram Ratan Das. According to the doctor, the burn injuries were ante-mortem in nature and smell of kerosene oil was not detected by him. In this context, it needs to be recorded that it is the prosecution's case that the accused persons sprinkled kerosene oil on Sanchita Rani Das and set her on fire. It has also come on record that when the informant and others visited the house of Sanchita Rani Das she was conscious and she remained conscious according to the prosecution witnesses while she was taken to T.M.H. Hospital, still her statement was not recorded.

In the aforesaid state of affairs, we find that the story narrated by the informant is shrouded with mystery. Delay in lodging the First Information Report, admission of the prosecution witnesses that P.W.1 and Ram Ratan Das informed them that Sanchita Rani Das caught fire from a dhibri and the doctor's evidence on absence of kerosene oil, create serious doubts on the prosecution's case.

In the above facts, we hold that the prosecution has failed to establish the charge under section 302/34 I.P.C and also under section 304-B I.P.C against the appellants.

The appellants, namely, Bhaba Das, Ram Ratan Das and Pagru Das are acquitted of the charges framed against them in Sessions Trial No.353 of 1998.

The judgment of conviction and the order of sentence, both dated 04.05.2001, passed by the 2nd Additional Sessions Judge, Jamshedpur, Singhbhum (East), in Sessions Trial No.353 of 1998 are set-aside.

The appellants are on bail. They are discharged of liability of the bail-bonds furnished by them.

In the result, Criminal Appeal (D.B.) No. 171 of 2001, Criminal Appeal (D.B.) No. 1054 of 2006 and Criminal Appeal (D.B.) No. 191 of 2001 are allowed.

Let lower-court records be transmitted to the court concerned forthwith.