Govind Sah, Durga Sah vs State Of Jharkhand

Both the aforesaid Criminal Appeals are arising out of common impugned judgment of conviction and order of sentence, as such, both are being

heard and disposed of, by a common judgment. During pendency of the Criminal Appeals before this Hon'ble Court, Nirmal Sah (original appellant

No.3 in Cr. Appeal (SJ) No.1259 of 2003) died on 20.12.2005, but no application for grant of leave under Section 394 Cr.P.C. has been filed by

legal heirs or relatives of appellant, Nirmal Sah within 30 days of his death, as such, the Criminal Appeal preferred by the appellant, Nirmal Sah,

stands abated.

Heard, Mr. Anil Kumar Singh, learned counsel for the appellants and Mr. Satish Kumar Keshri, learned Addl. Public Prosecutor appearing for the

State.

Both the aforesaid Criminal appeals are directed against the judgment of conviction and order of sentence, both dated 4th July, 2003, passed by

learned Addl. Sessions Judge-I, Rajmahal, in S.C. No.46 of 2000/ S.T. No.80 of 2001 , whereby these appellants have been convicted under Sections

304-B/34 I.P.C. and awarded rigorous imprisonment for seven years. The learned trial court has further ordered that the period undergone by the

appellants during investigation and trial in custody shall be set off under Section 428 Cr.P.C.

The prosecution case, is based upon the 'fardbeyan' of the informant, Chhedu Lal Saha recorded by B.B. Rai, Sub Inspector of Police and

Officerin-Charge of Kotal Pokhar Police Station at 7.00 p.m. on 31.08.1999 in the village- Jambad, wherein the informant has alleged, that he has

solemnized marriage of his daughter, Savitri Devi, aged about 20 years with Govind @ Durga Saha two years ago, as per the Hindu Rites and

Customs and at the time of marriage, the informant gave a sum of Rs.8,000/- cash and jewellery worth Rs.4,000/-. The informant has also stated that

for one year, his daughter remained peacefully and thereafter, Nirmal Sah, father-in-law of the deceased and her brother-in-laws, Jhupar Saha,

Kaliyug Saha and Govind Saha have started asking for amount of Rs.5,000/-, as they have spent more amount during the marriage. It is alleged that

one day prior to the last day of 'Raksha Bandhan' that was Wednesday i.e. 25.08.1999 at around 12.00 p.m., the informant's daughter, Savitri Devi

came to her 'maike' and said that the accused persons have sent her to bring Rs.5,000/- after 'Raksha Bandhan' otherwise she should not come to her

'Sasural'. The informant pacified his daughter by saying that after 'Rainy Season' he will pay the same amount and sent her daughter to the 'sasural'

with his wife, Shanti Devi. Today i.e. 31.08.1999 in the morning, three persons came from Village- Jambad and disclosed that his daughter is

unconscious. Further, on query, they did not disclose their names and identity nor the informant is knowing about them. The informant along with his

wife went to the 'sasural' of his daughter and saw the dead-body of his daughter and all the inmates of the house were not present, as they have fled

away. Thereafter, villagers came and they have also searched the in-laws, but they were not found anywhere. In the village, the informant got

information that the accused persons have assaulted his daughter for demand of Rs.5,000/- as dowry and after seeing the dead-body of his daughter,

the informant found black-mark on the temple and cheek of the person of the deceased. The informant has claimed that the accused persons have

killed his daughter for demand of Rs.5,000/- as dowry which was not fulfilled by them.

On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report bearing Kotal Pokhar (Barharwa) P.S. Case

No. 64 of 1999 dated 01.09.1999 corresponding to G.R. No.317 of 1999 under Sections 304B /34 of the Indian Penal Code against the accused

persons.

After investigation, the Police submitted charge-sheet bearing No.23 of 1999 dated 30.09.1999 under Sections 304B /34 I.P.C. The cognizance of

the offence has been taken vide order dated 18.11.1999, and the case has been committed to the Court of Sessions vide order dated 31.07.2000.

The charge has been framed against all the accused/appellants under Sections 304B /34 I.P.C. on 11.04.2007, to which they have pleaded their

innocence and thus, they were put under trial.

The prosecution has examined altogether 14 prosecution witnesses and also adduced documentary evidence in support of its case i.e. 'fardbeyan'

has been proved by Chhedu Lal Saha (P.W.5- informant) and marked as Exhibit-1 and the post- mortem report, conducted by P.W.14 (Dr. Niranjan

Kumar Jha), Medical Officer, has been proved and marked as Exhibit-2.

Pocha Saha, uncle of the deceased has been examined as P.W.1, Hari Bol Saha has been examined as P.W.2, Uma Charan Saha has been examined

as P.W.3, Lakhi Ram Saha has been examined as P.W.6, Aghnu Saha has been examined as P.W.7, Jhodhan Ghosh has been examined as P.W.8,

Dinga Saha has been examined as P.W.9, Kali Podo Saha has been examined as P.W.10, Khitish Chandra Saha has been examined as P.W.11,

Baijnath Saha has been examined as P.W.12. All the above witnesses have been declared hostile by the prosecution.

Etwari Saha (P.W.4) has been tendered by the prosecution.

Chhedul Lal Saha (P.W.5), informant of the case and father of the deceased and Shanti Devi (P.W.13- mother of the deceased) have been examined

in this case, but they have also not supported the prosecution case although the 'fardbeyan' of the informant has been proved and marked as Exhibit-1

by informant (P.W.5) of this case, as P.W.5 (Chhedul Lal Saha) during his cross-examination in Paras 5, 6, 7 and 8 has categorically stated that his

daughter was having mental disease and her in-laws have also treated her by the Doctor at Sahibganj.

This witness (P.W.5) has further stated that during marriage of his second daughter, the father-in-law of the deceased (his daughter- Savitri Devi) has

also given financial assistance to him. The fatal blow to the prosecution case came in Para-7 of cross-examination of the informant, where the

informant has stated that the money which demanded by the father-in-law of the deceased, was not a dowry nor his daughter has ever made

complaint against her in-laws or the husband. In Para-8 of his crossexamination, this witness (P.W.5) has admitted that none of the co-villagers have

made any complaint with respect to the in-laws or the husband of the deceased. Same version has been given by the wife of the

informant and mother of the deceased, Savitri Devi, who has been examined as P.W.13 in this case.

Dr. Niranjan Kumar Jha has been examined as P.W.14 and he has stated during cross-examination that there was no injury on nose and mouth.

The Doctor has opined that because of Cardio-respiratory failure caused by 'Asphyxia', the deceased died and the time elapsed since death is more

than 24 hours. Autopsy was conducted on 01.09.1999.

After closure of the prosecution evidence, the appellants have been examined under Section 313 Cr.P.C. on 30.09.2002 wherein they have said that

they are innocent.

The learned trial court, after hearing learned counsel for the partiesand perusing the records, has passed the impugned judgment of conviction and

order of sentence, as stated above, which has been assailed before this Hon'ble Court by the appellants in the aforesaid two Criminal Appeals.

 Both the aforesaid Criminal Appeals are arising out of common impugned judgment of conviction and order of sentence, as such, both are being

heard and disposed of, by this common judgment

Heard, Mr. Anil Kumar Singh, learned counsel appearing for the appellants.

 Learned counsel appearing for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and

cannot sustain in eyes of law, as the basic ingredients with regard to demand of dowry is not fulfilled in this case thus, the presumption under Section

113B of the Indian Evidence Act will not come into play.

Learned counsel for the appellants has further submitted, that from perusal of the First Information Report and the evidence of father of the deceased,

Chhedu Lal Saha (P.W.5) and mother of the deceased (P.W.13), there is no evidence that any demand of dowry was made, rather this witness

(P.W.5) in Para-7 of his cross-examination, has categorically stated that there is no demand of dowry.

Learned counsel for the appellants has further submitted that unless and until the prosecution established, the case within the ambit of Section 304B

I.P.C., no presumption under Section 113B of the Indian Evidence Act can be drawn against the appellants.

Learned counsel for the appellant, in support of his submission, hasplaced reliance on the judgment, reported in [2014] 3 East Cr. C. 441 (SC)], in

the case of Manohar Lal Vs. State of Haryana, in Para 17 which reads as follows :-

“17. For the purpose of the said section, a presumption can be raised only on proof of the following essentials :-

(a) Death of the woman was caused by burns or bodily injury or occursotherwise than under normal circumstances.

(b) Such death took place within seven years of her marriage.

(c) The woman was subjected to cruelty or harassment by herhusband or his relatives.

(d) Such cruelty or harassment was for, or in connection with, anydemand for dowry and

(e) Such cruelty or harassment was soon before her death.â€​

Learned counsel appearing for the appellant has drawn attention of this Court towards the provisions of Section 2 of the Dowry Prohibition Act,

1961.

“Section 2 of the Dowry Prohibition Act, 1961 defines “dowry’ means any property or valuable security given or agreed to be given

either directly or indirectly â€

(a)by one party to a marriage to the other party to the marriage; or

(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the

marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal

Law(Shariat) applies.â€​

Learned counsel appearing for the appellants has submitted that any financial help or money demanded by the in-laws, which has no bearing on

the marriage, cannot be termed to be dowry under Section 2 of the D. P. Act.

Learned counsel appearing for the appellants in support of his submission, has also put reliance upon judgment of APPASAHEB AND

ANOTHER VS. STATE OF MAHARASHTRA, reported in (2007) 9 Supreme Court Cases 721, wherein it has been held that “correlation

between the giving or taking of property or valuable security with the marriage of the parties is essential â€" On facts held, demand for money on

account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for

dowry .â€​

Learned counsel appearing for the appellants has further submitted that except Chhedi Lal Saha (P.W.5) informant and father of the deceased

and Shanti Devi (P.W.13), mother of the deceased, all the other witnesses have been declared hostile by the prosecution and witness, Etwari Saha

(P.W.4) has been tendered, as such, from perusal of the evidence of P.W.5, P.W.13 and P.W.14 (Medical Officer), who conducted the autopsy upon

the person of the deceased, the conviction of the appellant under Sections 304B /34 I.P.C. cannot sustain in the eyes of law, as the basic ingredients

of demand of dowry are missing and the witnesses, Chhedi Lal Saha (P.W.5) informant and father of the deceased and Shanti Devi

(P.W.13), mother of the deceased, have not supported the prosecution case, as made out in the First Information Report rather they have categorically

stated that the said demand was not related with the dowry and father-in-law of the deceased has given financial support at the time of marriage of

his second daughter.

 Learned counsel appearing for the appellants has further drawn attention of this Court with regard to the evidence adduced by P.W.14, Medical

Officer, who conducted post- mortem and did not found any mark of violence either on the mouth or nose of the deceased.

Learned counsel appearing for the appellants has further submitted that death was caused 24 hours prior to 01.09.1999, when the autopsy of the

deceased was conducted and as per the prosecution case, the deceased died on 31.08.1999, as such, the medical evidence, is also not, in consonance

with the allegation made in the First Information Report.

 Learned counsel appearing for the appellants has further submitted that the Medical officer (P.W.14) has categorically stated that the deceased

died because of Cardio-respiratory failure caused by 'Asphyxia', thus, the allegation which has been levelled against the accused/appellants in the First

Information Report is also contrary to the medical report.

 Learned counsel appearing for the appellants has further submitted that non-examination of the Investigating officer has caused serious prejudice to

the appellants as the fact which has been brought on record, could not be cross-examined by the defence, as such, the impugned judgment of

conviction and order of sentence cannot sustain in the eyes of law and accordingly, the appellants be acquitted of the charge and conviction under

Sections 304B /34 I.P.C. by extending the benefit of doubt in favour of the appellants.

Heard Mr. Satish Kumar Keshri, learned Additional Public Prosecutorappearing for the State.

Learned Additional Public Prosecutor appearing for the State while supporting the impugned judgment of conviction and order of sentence, has

submitted that the same has been passed on the basis of the materials available on record, as such, the learned trial court has rightly convicted the

appellants, as the deceased (Sumitra Devi) died within seven years of marriage in the house of the in-laws, which was unnatural death.

Learned Additional Public Prosecutor appearing for the State, from perusal of the First Information Report, has submitted that there is allegation of

demand of dowry.

Learned Additional Public Prosecutor appearing for the State has submitted that considering the evidence brought on record, the learned trial court has

rightly convicted the appellants, as such, this Court may not interfere with the impugned judgment of conviction and order of sentence, at this stage.

Heard, Mr. Anil Kumar Singh, learned counsel appearing for the appellants and Mr. Satish Kumar Keshri, learned Additional Public Prosecutor

appearing for the State. Perused the records including the First Information Report, the charge framed against the appellants and the deposition of all

the fourteen witnesses, two Exhibits and statement of accused/appellants recorded under Section 313 Cr.P.C.

This Court has considered the submission advanced by the learned counsel appearing for the appellants that such demand of Rs.5,000/- cannot be

termed as dowry and has buttressed his argument, on the basis of the evidence deposed in cross-examination of the informant (P.W.5- Chhedu Lal

Sah).

This Court has also perused the provisions enshrined under Section 2 of the D.P. Act and is in complete agreement with the learned counsel for the

appellants, who has submitted that the demand cannot be termed to be dowry under the Dowry Prohibition Act, as the same is not related with

marriage.

Perused the judgment cited by the learned counsel for the appellants in the case of APPASAHEB AND ANOTHER VS. STATE OF

MAHARASHTRA, reported in (2007) 9 Supreme Court Cases 721 (supra), this Court has found that demand of Rs.5,000/- as alleged in the First

Information Report itself, cannot be termed as dowry, as the basic ingredients for constituting an offence under Section 304B I.P.C. is missing. The

onus under Section 113B of the Indian Evidence Act, cannot be shifted upon the appellants. The prosecution has to prove the case against accused/

appellants beyond all reasonable doubts.Â

This Court has also perused the evidence of Chhedu Lal Saha (P.W.5), informant and father of the deceased and Shanti Devi (P.W.13), mother of the

deceased, who have completely taken somersault, as made out in the First Information Report, even though they have not been declared hostile by the

prosecution, but their evidences are contrary to the prosecution case and there is no evidence of demand of dowry or torture soon before death upon

the deceased. The investigating officer has also not been examined in this case.

Further-more, the Doctor has not found any mark of violence or black spot on the temple and cheek rather the Doctor (P.W.14) has found no injury

on the nose and mouth of the deceased and opined that the deceased died because of Cardiorespiratory failure caused by 'Asphyxia'.

Considering the facts and circumstances, as stated and discussed above, this Court is of the opinion that the prosecution has miserably failed to

prove its case beyond all reasonable doubt against the appellants, as such, the conviction of the appellant under Section 304B /34 of the Indian Penal

Code is non-sustainable in the eyes of law.

Accordingly, the Judgment of conviction and order of sentence, both dated 4th July, 2003, passed by learned Addl. Sessions Judge-I,

Rajmahal, in S.C. No.46 of 2000/ S.T. No.80 of 2001, is hereby set aside.

The appellants, who are already on bail as such, they are discharged from the liability of their bail bonds.

Accordingly, both the aforesaid Criminal appeals stand allowed.

Let L.C.R. along with a copy of this judgment be sent to the courtconcerned at once.