Jharkhand High Court
Pradeep Yadav @ Mangra vs The State Of Jharkhand on 22 August, 2024
Author: Ananda Sen
Bench: Ananda Sen
Cr. Appeal (D.B.) No. 496 of 2015
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(Against the judgment of conviction and order of sentence dated
17.06.2015 passed by learned District & Additional Sessions Judge-I,
Godda in S. T. Case No.72 of 2006).
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Pradeep Yadav @ Mangra, S/o Khukharu Yadav, R/o Village- Dadhu,
Ghuttu @ Kutta, P.O. and P.S. Poraiyahat, Distt- Godda ..... Appellant
Versus
The State of Jharkhand .... Respondent
.........
For the Appellant : Mrs. Abha Verma, Advocate
For the State : Mr. Pankaj Kumar, Public Prosecutor
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PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
CAV On 08.08.2024 Pronounced On 22/08/2024 Per Ananda Sen, J.:
The instant criminal appeal is directed against the conviction of sole appellant under Section 304B of the Indian Penal Code vide judgment of conviction and order of sentence dated 17.06.2015 passed by learned District & Additional Sessions Judge-I, Godda in S. T. Case No.72 of 2006, whereby the sole accused has been sentenced to undergo R.I. for ten years for the offence punishable under Section 304B of IPC.
2. Learned counsel for the appellant submitted that there are no materials to convict this appellant for the charge framed under section 304B of the Indian Penal Code. It is his contention that charge could not have been framed under section 304B of the Indian Penal Code as it is apparent from the First Information Report itself wherein the informant had stated that the marriage of the deceased along with the appellant had taken place eight years ago. He further argued that there is no evidence that there was any demand for dowry soon before her death. It is his contention that the charge was only framed under section 304B of the Indian Penal Code and not 1 under section 302 of the Indian Penal Code and when the basic ingredients of demand of dowry fails, the appellant is bound to be acquitted. He lastly argues that just because the appellant is the husband of the deceased, without any material he has been convicted.
3. Learned A.P.P. for the State submitted that though in the FIR it has been mentioned that marriage had taken place eight years back but the evidence of the witnesses clearly suggest that marriage had taken place within seven years of the date of the death. There is consistent evidence that dowry was demanded and the death is unnatural. When all these three ingredients are complete, the onus shifts upon the accused to prove his innocence. In the instant case the appellant has failed to discharge his burden thus it is presumed that the appellant being the husband, is guilty of committing dowry death. The trial Court has correctly convicted the appellant which needs no interference.
4. We have heard, the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit-4 and the same was at the instance of Bhudeo Yadav. In the fardbeyan, he has stated that on 27.12.2005 when he was at his home, one Surendra Yadav of Village- Dadhukutta had informed that his daughter- Jiro Devi is unconscious in her matrimonial home. After getting information on the same day, he along with his father- Lodho Mahto, Balram Yadav, Ramotar Yadav, Raghu Yadav and other well-wishers went to the matrimonial home of his daughter, Jiro Devi. He saw his daughter lying on a cot in her matrimonial home. When he touched her, he found his daughter dead and also saw the injury below the left eye and hand. He further stated that his daughter was married with Hindu Rituals with Mangra @ Pradeep Yadav about eight years ago. He further stated that from last one year, his daughter, Jiro Devi was pressurized by her husband to bring motorcycle, television, one Buffalo and cash Rs.5,000/- from her him. He also stated that she used to tell him about the said demand and torture as and when she met her father. She was also apprehending and 2 used to say to her father that if the demand is not fulfilled, she might be killed. He further stated that his daughter- Jiro Devi was tortured by her husband for the demand of dowry.
5. On the aforesaid fardbeyan, Poraiyahat P.S. Case No.177 of 2005 was registered under Section 304B of IPC. The police after investigation filed chargesheet under Section 304B of IPC and thereafter cognizance was taken and the case was committed to the Court of Sessions.
6. As the appellant pleaded not guilty, charge was framed under Section 304B of IPC and he was put on trial. Nine witnesses have been examined in this case, who are as follows:-
(i)P.W.-1-Lodho Mahto
(ii)P.W.2- Ramawtar Yadav
(iii) P.W.-3- Balram Yadav
(iv)P.W.-4- Raghu Yadav
(v)P.W.-5- Bhudeo Yadav
(vi)P.W.-6- Julfikar Ali, Investigating Officer of this case
(vii)P.W.-7- Dr. Subhan Murmu
(viii)P.W.-8- Surendra Yadav
(ix)P.W.-9- Manager Yadav.
P.W.-1 (Lodho Mahto) he deposed that the deceased, Jiro Devi was married with Mangra Yadav @ Pradeep Yadav in the year 1999. He deposed that Sadhu Munda and Surendra Yadav told him that his grand-daughter is lying unconscious in her matrimonial home. On information, he reached her matrimonial home, where he saw his grand-daughter lying dead on a cot. He saw injury on her hand. He further stated that after one year of marriage the accused started demanding buffalo, motorcycle and cash Rs.5,000/-. In his cross- examination, he stated that from the wedlock, the deceased had two children. He further stated that they were informed at about 07.00 A.M. in the morning and they reached her matrimonial home around 8.00 A.M. He denied the suggestion that the deceased died due to fall in a well.
P.W.2- Ramawatar Yadav, who deposed that when Jiro Devi died, he was at home. He further stated that Surendra Yadav informed the father of the deceased that his daughter is lying unconscious in her matrimonial home. He further stated that he saw the dead body of Jiro 3 Devi having injury on her both hands, neck and head. He further stated that Pradeep Yadav used to quarrel with Jero Devi for dowry. In his cross-examination, he stated that Village- Dadhokutta is six kilometers away from the Village. He further stated that deceased's sari was wet. He also denied that the suggestion regarding the death of the deceased due to fall in a well.
P.W.-3- Balram Yadav, who deposed that Jiro Devi was married with Pradeep Yadav in the Village- Dadhokutta. He further stated that he had gone to Dadhokutta where he had seen the dead body. He further stated that there was injury on his hand and back and blood was there. In her cross-examination, he admitted that the information was received around 8.00 A.M. in the morning and they reached in the Village at around 10.00 A.M. P.W.-4- Raghu Yadav he deposed that he knows Pradeep Yadav and Jiro Devi. He further stated that Jiro Devi died her matrimonial home, who was married with Pradeep Yadav about 6-7 years back. He further stated that the information regarding unconsciousness of Jiro Devi was given by one Surendra Yadav to the father of the deceased Bhudeo Yadav. He further stated that he along with Bhudeo Yadav, Ramawater Yadav, Balmukund Yadav and Villagers went to Village- Dadhokutta where they saw the dead body of Jiro Devi and found injury on the neck, left eye and hand and found blood there. He further stated that he was aware about the demand of dowry by her husband and for that she was being tortured. In his cross-examination, he stated that a boy of village Dadho Kutta had informed in the morning on the day of incident about the incident. On this information, he along with others had gone to Dadhokutta. He further stated that in his presence two years prior to the incident demand of dowry was made by deceased's husband. Since the deceased's parents are poor, they could not fulfill the demand. He also denied the suggestion regarding the death of the deceased due to fall in a well.
P.W.-5- Bhudeo Yadav is the informant and father of the deceased of this case. He deposed that his daughter was married with one Pradeep Yadav @ Mangra Yadav of Village- Dadhokutta in the year 4 1999 and after one year of the marriage, the deceased was blessed with two children and thereafter, appellant demanded a buffalo, T.V. and Rs.5,000/- cash. He further stated that his daughter informed about the said demand as and when she used to visit his house, she also raised apprehension that she might be killed by her husband for non- fulfillment of the said demand. He further stated that Surendra Yadav of Village- Dadhokutta had informed that his daughter is lying unconscious her matrimonial home. Thereafter, he along with Balram Yadav, Raghu Yadav, Lodho Yadav and other villagers went to the Village- Dadho Kutta where he saw the dead body of his daughter lying on a cot. He further stated that he seen the injury on the dead body above the left eye, head and hand. In his cross-examination, he stated that he reached the Village- Dadhokutta at around 10-11 A.M., after the information where he had seen the dead body on a cot and at that time, he did not find any villagers near the dead body. Police reached the place of occurrence at around 3-4 P.M. He further stated that he has not reported the matter of demand of dowry to any concern authority. He further stated that there is no well near the house. He also denied the suggestion regarding the death of the deceased due to fall in a well. P.W.-6- Julfikar Ali is the Investigating Officer. He deposed that on 27.12.2005, he was posted in Poraiyahat P.S. Case No.177 of 2005 as he was in-charge of Police Station. He stated that he has prepared the inquest report of the deceased in presence of witnesses, Balram Yadav and Bhudeo Yadav. He has identified his signature on the inquest report on the carbon copy prepared in the same, which has been marked as Exhibit- 2. He further stated that he has sent the dead body for postmortem. The witness has identified the signature on the Formal F.I.R., which has been marked as exhibit-3. The Formal F.I.R. has been written by Constable, Dharmpal Yadav. He further stated that he identified signature on the fardbeyan, which has been marked as Exhibit- 4. The endorsement on the fardbeyan has been marked as Exhibit-4/1. He further deposed that request of medical examination of the accused has been made by him and on his request the requisition was prepared, which has been marked as Exhibit-5. In his cross-
5examination, he stated that he recorded the statement of Balram and Lodho Yadav in Village- Dadhokutta at the place of occurrence. The witness admitted that there is no description in his case diary about presence of any well near the place of occurrence. He also denied suggestion that he has not made proper investigation.
P.W.-7- Dr. Subhan Murmu had examined the injured on 28.12.2005, who was posted at Sadar Hospital, Godda. He found the following:-
"The dead body was average build, medium complexation with black hair, Eye closed, Mouth partially opened. Rigor mortise present in both the limbs.
Antemortem Injuries:
(i)Sharp cutting injury 4"x1/2" x bone deep over the occipital region.
(ii)Sharp cutting wound 2"x1/2"x skin deep over the left parietal region.
(iii)Abrasion 2"x 1"x Superficial over the left dorsum of hand
(iv)Bruise over the outer canthus of left eye.
On Dissection:
Skull- there was blood in side the cranium and occipital bone was found fractured.
Chest- The lung was bilaterally pale and heart was partially filled.
Abdomen- the liver, spleen, kidney were found pale and stomach contained only gastric juice about 200 ml. Uterus was found non gravid tubectomy was done previously, Sear was seen and bladder contained urine about 15 ml."
In his opinion, the death was due to hemorrhage and shock as a result of head injury Nos.(i) and (ii) or both. Weapon used- Sharp cutting for injury Nos.(i) and (ii) whereas a rest was caused by hard and blunt substance. The postmortem report was marked as Exhibit-5. In his cross-examination, he stated that injury Nos.(i) and (ii) is not possible from fall on stone, but the rest injury are possible from fall on stone.
P.W.-8- Surendra Yadav is the villager. He stated that the occurrence is of four years ago in the morning. Deceased- Jiro Devi fell down in the well and became unconscious. He further stated that in this respect, he informed the father of the deceased.
P.W.-9- Manager Yadav was declared hostile and nothing important could be extracted from his cross-examination.
7. The following documents and material objects were also exhibited by the prosecution:-
Exhibit-1 Signature of witness Lodho Mahto on fardbeyan.6
Exhibit- 1/1 Signature of Ramawatar Yadav on fardbeyan Exhibit-1/2 Signature of Balram Yadav on fardbeyan Exhibit-1/3 Signature of Lodho Mahto on the inquest report Exhibit-1/4 Signature of Balram Yadav on the inquest report Exhibit-1/5 Signature of witness Bhudeo Yadav on the fardbeyan Exhibit-2 Inquest report, Exhibit-3 Formal FIR Exhibit-4 Fardbeyan, Exhibit-4/1 pagination on fardbeyan Exhibit-5 Medical requisition of accused Pradeep Yadav Exhibit-6 Postmortem report.
8. After conclusion of the prosecution evidence, the statement of the appellant was recorded under Section 313 of Cr.P.C. No defence witness was produced on behalf of the appellant. Ultimately the Trial Court found the appellant guilty and has convicted him under Section 304B of IPC.
9. In this case the appellant is the husband of the deceased. The charge was framed against the appellant under section 304B of the Indian Penal Code. Section 304B of the Indian Penal Code relates to dowry death. The aforesaid section is divided into two parts; sub-
section 1 defines what is dowry death and sub-section 2 provides the punishment which is not less than seven years but may extend to life imprisonment. For better appreciation it is necessary to quote section 304B of the Indian Penal Code which reads as under:
304B. Dowry Death:-
"(1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her 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 for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
From the aforesaid definition, the basic ingredients which can be culled out is: (a) death of a woman should be caused by any burns or 7 bodily injury or the same should be otherwise than under normal circumstances (b) death should be within seven years from her marriage
(c) it has to be shown that soon before death she was subject to cruelty or harassment by husband or any relative of the husband and the said cruelty and harassment should be in connection with any demand for dowry.
10. The Hon'ble Supreme Court in "Satvir Singh and Others vs. State of Punjab and Anr." reported in (2001) 8 SCC 633 defined dowry and has held that dowry means any property or valuable security given or agreed to be given in connection with marriage. Any customary gift or payment in connection with other ceremonies which is unrelated to marriage is not a dowry.
11. As per section 113B of the Evidence Act presumption of guilt against the husband or his relatives arises once the basic ingredients of section 304B of the Indian Penal Code is established by the prosecution. The Hon'ble Supreme Court in the case of "Satvir Singh" (supra) and in several other judgments has held that when the aforesaid ingredients of section 304B(1) is fulfilled than guilt of the husband and the other family members can be presumed. Further section 113B of the Evidence Act provides for presumption of dowry death. As per section 113B of the Evidence Act if it is shown that soon before her death such woman had been subject to cruelty or harassment by such person in connection with any demand for dowry, the Court shall presume that person had committed dowry death. It is necessary to quote section 113B of the Evidence Act:
"113B. 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 had 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 304B of the Indian Penal Code (45 of 1860)."
812. From the aforesaid provision of law, I find that it is the prosecution who has to first establish the basic ingredients of section 304B of the Indian Penal Code which has been culled out in paragraph no.10.
13. Once the prosecution establishes the aforesaid facts, in view of section 113B of the Evidence Act the legal presumption is against the in- laws. At that point the onus shifts upon the accused to prove their innocence, but before that stage it is the primary duty of the prosecution to prove the ingredients.
14. Keeping in mind the aforesaid provision of law, the evidence led by the prosecution needs to be weighted. Though in the FIR the informant had stated that the marriage had taken place eight years ago from the date of death but PW1 stated that the marriage has taken place in the year, 1999. PW4 also stated that the deceased got married with this appellant six to seven years back. PW5 who is the informant deposed that the marriage had taken place in the year, 1999. The defence did not controvert the aforesaid statement either in cross-examination or by bringing any other evidence to the contrary. Thus, I hold that the prosecution has been able to prove that the marriage had taken place within seven years from the date of death as the deceased died on 27.12.2005. Thus, it is established that the deceased died within seven years from the date of marriage.
15. Now the next question would be whether the death is otherwise than in normal circumstances or not. PW1, PW2, PW3, PW4 and PW5 stated they went and saw the dead body was lying on the cot and there was bodily injury in neck, head, eye and hand. PW7 is the doctor who conducted the postmortem of the deceased. He found sharp cutting injuries on the occipital region and left parietal region. The doctor opined that the death is due to hemorrhage and shock as a result of head injury. He opined that sharp cutting weapon was used for injury nos. 1 and 2 and rest by hard and blunt substance. PW8 who is a villager stated that the deceased fell in the well and became unconscious. Even if his statement is taken to be correct, then also the death cannot be said to be normal. From the evidence of doctor, it is clear that the death is homicidal and the same is definitely not in normal circumstances. Thus, 9 the prosecution has proved that the death of the deceased is not in normal circumstances. What is death otherwise than under normal circumstances has been discussed by the Hon'ble Supreme Court in "Kans Raj vs. State of Punjab" reported in (2000) 5 SCC 207 wherein it has been held that the "death which is not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury" may come under purview of death otherwise than under normal circumstances.
16. Whether is there any demand of dowry soon before death or not. The expression "soon before death" must indicate there should be a nexus between the period of harassment, cruelty and the death and there should not be huge time gap between these two periods. The Hon'ble Supreme Court also dealt with the issue in "Satvir Singh"
(supra).
17. The Hon'ble Supreme Court in "Baljinder Kaur v. State of Punjab" reported in (2015) 2 SCC 629 has held as under:
18. The above decisions of this Court laid down the proximity test i.e. there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the courts depending upon the facts and circumstances of each case.
21. In our view, there is force in the submission of the learned counsel for the appellant. In cases related to dowry death, the circumstances showing the cruelty or harassment are not restricted to a particular instance, but normally refer to a course of conduct. Such conduct of cruelty or dowry harassment must be "soon before death". There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her.
18. The Hon'ble Supreme Court in "Devender Singh v. State of Uttarakhand" reported in (2022) 13 SCC 82 has held as under:
1014. The question, therefore, is as to whether the evidence tendered by the prosecution would be sufficient to establish the remaining ingredients of Section 304-BIPC with regard to the demand for dowry and perpetration of cruelty and harassment in connection with such a demand. Further, whether such cruelty and harassment were suffered by the deceased soon before her death so as to constitute a dowry death. As to the phrase "soon before her death", it is well-settled that the same ought to be interpreted to mean proximate and to be linked with but not to be understood to mean immediately prior to the death.
19. The Hon'ble Supreme Court in "Kans Raj v. State of Punjab"
reported in (2000) 5 SCC 207 has held as under:
15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" 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. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration
(a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. 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. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. 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. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.
1120. In this case, I find that all the prosecution witnesses have stated that the marriage had taken place in the year, 1999 and in the next year child was born, thereafter the demand was made. The demand was of buffalo, TV and Rs. 5,000/- cash. There is nothing in the evidence of the prosecution witnesses that immediately before the death was caused there was any demand. Thus, I hold that the prosecution has not been able to establish that there was dowry demand by the appellant soon before the death of the deceased.
21. The burden in terms of section 113B of the Evidence Act will shift upon the accused when the basic ingredients of 304B of the Indian Penal Code are established by the prosecution. All the pre-conditions must exist simultaneously. If any one of the ingredients is not established by the prosecution, the burden will not shift upon the accused and there cannot be any presumption of dowry death.
22. In this case, I find from the evidence that one of the ingredients i.e. demand of dowry soon before her death has not been established by the prosecution. When the prosecution has failed to establish one of the ingredients which is necessary to prove dowry death, the case cannot come within the ambit of section 304B of the Indian Penal Code. Even if the other two ingredients i.e. death otherwise than in normal circumstances and death within seven years of marriage is proved.
23. Even if the death had taken place in the matrimonial home and is homicidal, section 106 of the Evidence Act cannot be applied in this case as the charge has been framed under section 304B of the Indian Penal Code and not under section 302 of the Indian Penal Code.
24. Be it noted there is no alternative charge except section 304B of the Indian Penal Code. From what has been held above, I hold that the prosecution has not been able to prove the basic ingredients of section 304B of the Indian Penal Code and in absence of the same the appellant could not have been convicted under section 304B of the Indian Penal Code. He is thus acquitted of the charge under section 304B of the Indian Penal Code. This Appeal thus stands allowed.
1225. This appellant who is in custody be released immediately.
26. Let Trial Court Records along with a copy of this judgment be sent to the concerned trial court forthwith.
27. Interlocutory application, if any, also stands disposed of.
(Ananda Sen, J.) Gautam Kumar Choudhary, J: I agree.
(Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated 22/08/2024 NAFR /R.S./ Cp 03.
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