Jharkhand High Court
Nageshwar Rajwar vs State Of Jharkhand on 30 June, 2016
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
1
Cr. Appeal (D.B.) No.1418 of 2008
With
Cr. Appeal (D.B.) No. 1196 of 2008
[Against the judgment of conviction dated 22.08.2008 and order
of sentence dated 25.08.2008 passed by Sri Prem Prakash Pandey,
Ist Addl. Sessions Judge, Bokaro in Sessions Trial No. 115/174 of
2004]
Nageshwar Rajwar ... ... Appellant
[in Cr. Appeal (D.B.) No.1418 of 2008]
Saraswati Devi ... ... Appellant
[in Cr. Appeal (D.B.) No.1196 of 2008]
Versus
State of Jharkhand .... ... Respondents
(in both cases)
PRESENT
HON'BLE MR. JUSTICE PRADIP KUMAR MOHANTY
HON'BLE MR. JUSTICE ANANT BIJAY SINGH
For the Appellants : Mrs. Rashmi Kumari, Advocate
[in Cr. Appeal (D.B.) No.1418 of 2008]
Mr. N. K. Sahani, Advocate
[ in Cr. Appeal (D.B.) No.1196 of 2008]
For the State : Mrs. Sadhna Kumar, A.P.P
[in Cr. Appeal (D.B.) No.1418 of 2008]
Mr. Ravi Prakash, A.P.P
[in Cr. Appeal (D.B.) No.1196 of 2008]
...........
C.A.V on 20.05.2016 Pronounced on 30.06.2016
Anant Bijay Singh, J:
Both the criminal appeals, bearing Criminal Appeal
(D.B.) No. 1418 of 2008 preferred by appellant Nageshwar Rajwar
and Criminal Appeal (D.B.) No.1196 of 2008 preferred by Saraswati
Devi are taken up together and are disposed of by common judgment
as both the criminal appeals arised out of same judgment dated
22.08.2008passed in S.T. No. 115/174 of 2004 by Sri Prem Prakash Pandey learned Ist Addl. Sessions Judge, Bokaro holding the appellants guilty for the offence under Section 304(B) I.P.C and 2 further sentenced them on 25.08.2008 whereby both the appellants have been ordered to undergo rigorous imprisonment for life under Section 304(B) I.P.C.
2. The case of the prosecution, as unfolded in the written report(Exhibit1) of the informant, P.W.5 Sudhir Rajwar addressing to OfficerinCharge, of Chas Police Station dated 23.10.2003 alleging that he is resident of village Narkara, P.S.Balidih, District Bokaro, his sisterUrmila Devi was married in the month of June, 2002 with Nageshwar Rajwar [appellant in Cr. Appeal(D.B.) No. 1418 of 2008]. It is alleged that in the marriage, 55,000/ (fifty five thousand) in cash and other articles were given in dowry. The sister of the informant went to her sasural. Thereafter, she came to her parental home with her father and Nageshwar Rajwar also came there and fell ill and he was treated and thereafter he returned back to his house. It is further alleged that in the meantime his sister disclosed that her motherinlaw, her husband Nageshwar Rajwar used to put pressure for demand of one Hero Honda Splendor motorcycle and one Colour T.V, any how his father and other family members assured to provide motorcycle, thereafter, his sister went to her matrimonial home. It is further alleged that before three months of the occurrence, his sister came to the house and disclosed that her husband Nageshwar Rajwar, motherinlaw and one neighbour Elu Rajwar, Ram Bilash Kapardar, Jagdish Kapardar, Bhikhan Kapardar being the maternal uncle of her husband regularly used to put pressure for demand of motorcycle and threatened with dire 3 consequences. It is further alleged that on 23.10.2003 at about 3.00 p.m Raju Rajwar (not examined)son of Bandhu Rajwar informed the informant that his sister Urmila Devi has been murdered, thereafter the informant along with his family members and some villagers went to matrimonial home at village Gomdih, Tolla Piprabera, P.S. Chas (M) of his sister and reached there at 5.00 hours and found his sister dead having black mark on the left side of the neck. It is alleged that though the dowry demand was not fulfilled, her sister was murdered strangulating by the the accused persons.
3. On the basis of aforesaid written report of the informant, Chas(M) P.S. Case No. 75 of 2003 was registered for the offence under Section 304B of the Indian Penal Code.
4. After completion of investigation, chargesheet was submitted and the case was committed to the Court of Sessions by order of learned C.J.M, Bokaro on 27.03.2004. It further appears that the case of the appellant Nageshwar Rajwar in S.T. No. 115 of 2004 and the case of Sarswati Devi in S.T. No.174 of 2004 were committed separately and further record reveals that charge under Section 304(B) I.P.C was framed against Nageshwar Rajwar in S.T. No. 115 of 2004 on 15.05.2004 by learned Additional Sessions Judge and further charge under Section 304(B) I.P.C was framed against Saraswati Devi [appellant in Cr. Appeal (D.B.) No. 1196 of 2008] in S.T. No. 174 of 2004 on 23.08.2004 by learned Additional Sessions Judge and further record reveals that trial in S.T. No. 115 of 2004 proceeded and four witnesses namely, Arjun Rajwar, Mohan 4 Rajwar, Ashok Kumar Rajwar and Kashi Nath Rajwar were examined thereafter on the petition filed by the State on 15.02.2004 both the cases namely S.T. No. 115 of 2004 and S.T. No. 174 of 2004 were amalgamated vide order dated 24.11.2004 and the appellant Saraswati Devi was not given opportunity to crossexamine the aforesaid four witnesses.
5. Prosecution, in support of its case, examined altogether eleven witnesses. P.W.1 is Arjun Rajwar, P.W.2 is Mohan Rajwar, P.W.3 is Ashok Kumar Rajwar, P.W.4 is Kashi Nath Rajwar, P.W.5 is Sudhir Rajwarinformant, P.W.6 is Murlidhar Rajwar, P.W. 7 is Birendra Rajwar, P.W. 8 is Jalo Rajwar, P.W. 9 is Mohni Devimother of the deceased, P.W.10 is Jhari Rajwar (father of the deceased) and P.W.11 is Dr. Ajai Shankar Srivastava who conducted postmortem examination over the dead body of deceased.
6. Record reveals that despite opportunity given to the prosecution, Investigating Officer was not examined and on 14.07.2006, case of the prosecution was closed. On 24.07.2006, Rameshwar Ram, (Inspector of Police) appeared and further vide order dated 28.07.2006 an application was filed by learned A.P.P under Section 311 Cr.P.C which was allowed by the Trial Court and Rameshwar Ram (Inspector of Police) was examined as court witness, C.W.1.
7. The defence in support of its case, examined altogether five witnesses namely, D.W.1Laxman Tiwari, D.W.2Dasrath Mahatha, D.W.3Sri Subodh Chandra Rajwar, D.W.4Gulel Mahto, 5 D.W.5 Mihir Das.
8. As per exhibits, Ext. 1 is Fardbeyan, Ext.2 is sign on inquest report of Urmila Devi by Murlidhar Rajwar, Ext. 2/2 is sign on inquest report of Urmila Devi by Jalo Rajwar, Ext. 2/1 sign on inquest report of Urmila Devi by Birendra Rajwar, Ext. 3 is Postmortem Report of Urmila Devi, Ext. 1/1 is endorsement on Fardbeyan of O/c Chas (M), Ext. 4 is Entire Formal F.I.R, Ext. 2/3 is Entire Inquest Report, Ext. 5 is Entire Seizure List.
9. Learned counsels appearing in both the appeals while assailing the impugned judgment submitted that the witnesses examined on behalf of the prosecution can be classified in two categories. P.W.1 to P.W.4 namely, Arjun Rajwar, Mohan Rajwar, Ashok Kumar Rajwar and Kashi Nath Rajwar are independent witnesses and they are not related with the informant and they have not supported the case of demand of dowry or any torture inflicted by the appellants to the deceased. It is further submitted that appellantSaraswati Devi [appellant is Cr. Appeal (D.B.) No. 1196 of 2008] was not given opportunity to crossexamine these witnesses as record reveals, which caused prejudice to the appellants. It is further submitted that another set of witnesses is P.W. 5 to P.W.10 namely, Sudhir Rajwarinformant, Murlidhar Rajwar, Birendra Rajwar, Jalo Rajwar, Mohni Devimother of the deceased and Jhari Rajwar (father of the deceased) who are relative of the deceased and they are highly interested witnesses. They have supported the case of prosecution regarding demand of motorcycle and colour T.V by the appellants 6 although their evidences are contradictory to each other. The prosecution has not established when first demand was made by the appellants regarding motorcycle and colour T.V, so much reliance can not be placed on their evidences. It is submitted that defence has also examined five witnesses. They have supported the case of appellants and have not said about any demand of motorcycle or colour T.V by the appellants or any torture by the appellants. Further doctor, P.W.11 in his opinion has stated that death was due to asphyxia as a result of strangulation by ligature. Death cannot be caused in this case by hanging. Learned counsels for the appellants in this context also referred to evidence of P.W.5Sudhir Rajwar(informant) who in examinationinchief has stated that marriage of his sister Urmila Devi (deceased) was solemnized with Nageshwar Rajwar in the month of June, 2002 and Rs. 55,000/ cash and another articles were given as dowry thereafter she went to her sasural. After six month of her marriage, she came back. This witness has further stated that Nageshwar Rajwar came for bidagari, then his family members requested to perform Bidagari after karmapooja. It is further stated that her sister disclosed that her inlaws including husband Nageshwar Rajwar, motherinlaw, Elu Rajwar and Ram Bilash Kapardar were demanding one Hero Honda motorcycle and colour T.V. His father expressed his inability to fulfil the demand but any how, his father completed ceremony of Bidagari of his sister on 21.10.2003 but on 23.10.2003 he received information from Raju Rajwar (not examined) that his sister has been murdered, thereafter 7 P.W.5 along with his family members and some villagers with some police personnel went to the house of his sister where he found the dead body of his sister lying on a cot and also found a black mark around her neck and he gave written report (exhibit 1) to the police station. In his crossexamination, this witness has stated that he has passed only fifth and sixth class and presently he is working in Bokaro Steel Limited. He has further submitted that Nageshwar Rajwar used to sell eggs and his mother is maid servant. This witness has stated that his house is situated at 25 k.m from the house of the deceased. This witness has stated in his fardbeyan that bidagari of his sister took place on 21.10.2002. In paragraph 17 this witness has stated that in which month his father brought his sister from sasural, he cannot say. He has stated that his father is working at B.S.L. In paragraph 19 of his crossexamination, he has admitted this fact that he had gone to his sister's sasural, there is no any electric connection. His sister never complained of electric fan. In paragraph 27 of his crossexamination, he has stated that his sister told that dowry was demanded by herinlaws but no written information was given to any one. He has denied the suggestion that there were no electric line at the sasural of her sister due to which his sister committed suicide.
10. Learned counsels for the appellants have referred the evidence of P.W.10, who in his examinationinchief has stated that Urmila Devi was his daughter. After her marriage, she went to her sasural where she was subjected to torture and demand of Hero 8 Honda motorcycle and a colour T.V was made from her, this fact was disclosed by his daughter Urmila Devi (deceased). He has further stated that on Tuesday bidagari of his daughter took place and on Thursday his daughter died. In crossexamination, he has stated that after marriage his daughter came to his place and after ten days she again went to her sasural. After 34 days, again she came in Karma Puja thereafter she again went to her sasural after Karmapuja where she fell ill. In para 8 of crossexamination, this witness has stated that his soninlaw Nageshwar Rajwar used to sell eggs at Sector11. In para 10, he has stated that there is no electric line in the sasural of his daughter and the family members of his daughter's sasural are poor. His soninlaw has no source of income except selling eggs. In para 13 of crossexamination, he has stated when his daughter informed about the demand of T.V and Hero Honda motorcycle by her sasural people, he did not inform to police station.
11. It is submitted by the learned counsels for the appellants that there is contradiction in the evidence of P.W.5 and P.W.10 regarding the demand of motorcycle and colour T.V which is after thought.
12. Further learned counsels for the appellants referred to evidence of P.W.9 Mohni Devi, who is the mother of the deceased. Mohini DeviP.W.9 in her evidence has stated that her daughter Urmila Devi was married with Nageshwar Rajwar in the year, 2002. After marriage, she went to her sasural. After one month, she came back to her parental house and remained there for one month, 9 thereafter she again went to her sasural. In para3 in her examinationinchief, this witness has stated that her daughter complained that accused persons abused her. The maternal uncle of Nageshwar Rajwar (husband of the deceased) used to demand T.V and vehicle and also threatened her daughter. In para8 in her cross examination, she has stated that Nageshwar Rajwar used to sell egg and she cannot say what the mother of Nageshwar do. In para9 of her crossexamination, she has stated that the sasural people of her daughter are very poor. She has categorically stated in para10 of her crossexamination that she can not disclose on which date her daughter was tortured. In para11, she has stated that she went in the marriage of daughter of maternal uncle of Nageshwar where Nageshwar assaulted her daughter in her presence. In para13 of her crossexamination, she has stated that she along with her husband had gone in the marriage of maternal uncle of Nageshwar and she disclosed the events to her daughter. In para22 of her cross examination, she has categorically stated that she cannot say about the day and date when maternal uncle, her daughterinlaw had demanded T.V etc. In para 24 in her crossexamination, she has stated that she had informed about the demand of dowry to the police station and additional police station. It was submitted by the learned counsels for the appellants referring the evidence of P.W.9 that demand of motorcycle and colour T.V was made by maternal uncle of appellantNageshwar Rajwar.
13. P.W.6 Murlidhar Rajwar who is uncle of deceasedUrmila 10 Devi who has supported the factum of marriage of Urmila Devi with Nageshwar Rajwar and stated that he after hearing the death of Urmila Devi went to the sasural of Urmila Devi and inquest report was prepared by the police and he put his signature which is marked as Exhibit2. In crossexamination, he has stated that inquest report was read over to him. In para 14 of crossexamination, he has stated that he had not informed the police about the demand of T.V or Hero Honda motorcycle. In para17, he has stated that police did not interrogate him.
14. P.W.7Birendra Rajwar, who is the brother of the deceasedUrmila Devi also supported the factum of marriage of his sister with Nageshwar Rajwar and stated that after her marriage she went to her sasural. After her death, he went there and saw the dead body of his sister. He put his signature on the inquest report which has been marked as Exhibit 2/1. In his crossexamination, he has categorically stated that in his presence no demand of dowry was made and in para16, he has categorically stated that he had met with the deceased 34 months after she went to her sasural.
15. P.W. 8Jalo Rajwar who is the uncle of deceased has also admitted the factum of marriage of the deceased with Nageshwar Rajwar and also stated the fact that after her marriage she went to her sasural and when she returned to her parental house complained about the demand of colour T.V and motorcycle by the accused persons and also assault against her. This witness is also inquest report witness. He put his signature on the inquest report which has 11 been marked as Exhibit 2/2. In para 10 of crossexamination, he has stated that when he met with deceased, she disclosed about the assault by her inlaws. In para 11, he has stated that he did not give any information to the police.
So, it was submitted by the counsels for the appellants that the aforesaid witnesses P.W. 5 to PW.10 are relatives of the deceased and they are highly interested witnesses and they have given contradiction version about the demand of motorcycle and colour T.V by Nageshwar Rajwar, so much reliance can not be placed upon their evidence.
16. Learned counsels for the appellants also referred to the evidences of P.W.1, P.W.2, P.W.3 and P.W. 4 who are the independent witnesses and they have not supported the case of prosecution, demand of motorcycle and colour T.V or any torture inflicted upon the deceased by the appellants.
17. Similarly, it was submitted with reference to evidence of P.W.11, Dr. Ajay Kumar Srivastava who has stated that on 24.10.2003, he was posted as Medical Officer at Subdivisional Hospital, Chas, and performed autopsy on the dead body of a lady Urmila Devi wife of nageshwar Rajwar @ Lagan Rajwar, village Gomatidih, TollaPiprabera, P.S. Chas(M), Bokaro and found following; Deceased was aged about 21 years and her dead body was brought by Chowkidar and Sudhir Rajwar & Krishna Rajwar. Her built was average, R.M was partly present in the lower limbs. Both hands were partially closed. Tongue was protruded. No saliva mark 12 or discharged from angles of mouth seen blood mixed for frothy discharge at nostril. Abdoman was distended and tense. Antimortem injuriesligature mark, there was almost horigental grooved 1/2"
wide ligature mark with ecchimosed and abraded surfaces above and below the ligature mark on the left side extending from thyroid cartilage to the nap of neck. It was also extended to the right side obliquely upwards almost encircling the neck. There was no other antimortum injury found on the body of the deceased. On dissection There was extravsation of blood above and below the ligature mark. Larynx & Trachea were conjested and blood mixed forthy nucous collection in the luman. Thyroid and first tracheal rigng were conspicuously grooved. In front of the neck, which appeared to be fractured. The lungs were congested and edamatous. All the chambers of the heart contained blood. Time elapse since death till postmortem examination done was 36 to 40 hours. According to him cause of death was due to asphyxia as a result of strangulation by ligature. Death cannot be caused in this case by hanging. Postmortem report has been marked Exhibit3. In case of hanging , trachea would not be attached due to weight of the body. He further stated that in course of hanging there may be mark of rope or type of ligature. Resistance mark may depend upon the situation. This witness has denied the suggestion that it is not true that deceased died, in this case due to hanging.
18. It was submitted by the learned counsels for the appellants that death was due to asphyxia. Further, the learned 13 counsels for the appellants referred to the evidence of C.W.1 Rameshwar RamI.O of the case, whose evidence has been taken by a petition filed by the prosecution under Section 311 Cr.P.C before the Court. This witness has stated that on 23.10.2003, he was posted as S.I at Chas (M) P.S., Chas (M) P.S. Case No. 75 of 2003 was registered on the basis of written report of Sudhir Rajwar and investigation of this case was handed over to him. He has proved the endorsement and signature of the officerincharge (Exhibit 1/1). He has further proved the signature of officerincharge (Exhibit4) on the formal F.I.R. He further deposed that after taking charge of Investigation, he went at the place of occurrence with officerin charge. The officerinchargeAnjani Kumar prepared death inquest report with carbon copy which was signed by witnesses Murlidhar Rajwar, Jalo Rajwar, Virendra and Dhum Rajwar and also signed by the OfficerinCharge. The signature of witnesses and officerin charge have been marked Exhibit 2/3. He further stated that he inspected the place of occurrence and found the house of the accused was built by brick and cement under Indra Awash Yojna consisting two rooms. The dead body of the deceased was found. One seven ft. plastic rope was found which was seized by officerin charge. The seizure list was prepared by officerincharge with signature of witnesses (Exhibit5). He has recorded the statement of witnesses and sent the dead body for postmortem examination. He found the occurrence to be true but in the meantime, he has been transferred therefore, handed over the charge of investigation to the 14 officerincharge.
19. In course of crossexamination, he has stated in para 9 that after inspection of the P.O he came on conclusion that it is a case of hanging. He further stated in para10 that he recorded statement of Kashinath Rajwar (P.W.4), Ashok Kumar RajwarP.W.3, Arjun Rajwar P.W.1 and Mohan RajwarP.W.2 who have not stated that accused persons tortured the deceased for the demand of dowry and stated that deceased committed suicide and also stated that except the husband of deceased none was present at that very house. In para11, he has stated that Mohini Devi, mother of deceased did not disclose that when she went in the marriage of the daughter of maternal uncle of Nageshwar, her daughter was assaulted by Nageshwar in her presence. In para 13, he has stated that witnesses did not disclose the exact time of occurrence. He has denied the suggestion that investigation was defective.
20. Learned counsels for the appellants further stated that evidence of I.OC.W.1 has falsified the evidence of Mohini Devi mother of the deceased that in her presence Nageshwar Rajwar assaulted her daughterUrmila Devi. Further learned counsels for the appellants referring the evidence of D.W.1, D.W.2, D.W.3, D.W.4 and D.W.5 who in their evidence have stated that they know Nageshwar Rajwar and Sarswati Devi. Nageshwar Rajwar used to sell eggs and Sarswati Devi is maid servant and they used to keep Urmila Devi with full dignity and love.
21. On the basis of these evidences and also relying on the 15 judgment of the Jharkhand High Court in the case of "Arun Soni Vs. State of Jharkhand" reported in 2014 (3) JLJR 646;
"Indian Penal Code, 1860Sections 498A/304B/201 r/w Section 113B of Indian Evidence Act, 1872death of wife within seven years of marriagetestimony of informant father of deceased contrary to the testimony of motherIO tried to build up a case by bringing evidence regarding seizure of articles to suit the story of the prosecution which is not corroborated by testimonies of father and mothertestimonies of father, mother and grandfather are inconsistent regarding the period as to when the appellant made the demand of a scooter and they had never disclosed to anyone regarding said demand prior to the occurrence which is against the normal conduct of parents in such situationprosecution has not established that appellant subjected the deceased to cruelty or harassment soon before her death in connection with demand of dowryin absence of any evidence that there was a demand of dowry or the deceased was subjected to cruelty or harassment in connection to dowry, the presumption u/s 113B cannot be drawnin view of testimony of independent witnesses, though declared hostile, the probability is that the deceased died an accidental deathconviction set aside.
Indian Penal Code, 1860Section 304B r/w Section 113 16 B of Indian Evidence Act, 1872u/s 304B, there is mandatory presumption on the guilty conduct of an accusedin order to presume the dowry death the onus to show that the essential ingredients of offence is established lies on the prosecution, and it is a condition precedent that there must be unimpeachable evidence relating to dowry demandif ingredients are established then only there is a shift of burden of proof on the defence in terms of Section 113B Section 304B permits presumption of law only in a given set of facts and not presumption of fact and fact has to be proved and then only, law will be presumed on the basis of the established/proved facts."
it was submitted on behalf of the appellants that during course of trial the prosecution witnesses namely, Sudhir RajwarP.W.5 (informant), urlidhar Rajwar P.W.6, Birendra Rajwar P.W.7, Jalo RajwarP.W.8, Mohni Devimother of the deceased P.W.9 and Jhari Rajwar (father of the deceased) P.W.10 have built up the case regarding demand of motorcycle and colour T.V in order to bring the charges under Section 304B I.P.C but this is not corroborated by the independent witnesses i.e P.W.1 to P.W.4 namely, P.W.1Arjun Rajwar, P.W.2Mohan Rajwar, P.W.3 Ashok Kumar Rajwar and P.W.4 Kashi Nath Rajwar read with evidence of defence witnesses and the evidence of C.W.1I.O of the case who has stated that this is a case of hanging. It was submitted that initially onus is on the prosecution to 17 discharge its burden regarding proving the ingredients of Section 304(B) I.P.C, then presumption of Section 113(B) of the Evidence Act attracted and onus will on the appellants to give explanation as to how the deceased died, since the prosecution has failed to establish the basic ingredients under Section 304B I.P.C. The Trial Court has failed to appreciate the law in its proper perspective hence, the impugned judgment of conviction and order of sentence is liable to be setaside.
22. On the other hand, learned A.P.P appearing on behalf of the State referring to judgment of the Hon'ble Supreme Court (i) in "Trimukh Maroti Kirkan Vs. State of Maharashtra" reported in (2006) 10 SCC 681 ;
"A. Penal Code 1860S. 304B [S. 302] Dowry death Circumstantial evidenceBurden of proofNature ofHeld, is of a lighter character where the offence is committed in secrecy inside a house In view of S. 106, Evidence Act there is also a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committedThey cannot get away by keeping quiet and on the premise that the prosecution must discharge its burden of proving the caseEvidence Act, 1872, S. 106. B. Penal Code, 1860S. 302Circumstantial evidence Burden of proofNo explanation or false explanation against incriminating circumstance (s)If accused fails to offer any cogent explanation or offers an explanation 18 which is untrue, then it can be treated as an additional link in the chain of circumstances against the accused to make it complete Evidence Act, 1872, S. 106 and III (b) (C) Criminal TrialCircumstantial evidenceLast seen togetherDowry deathProsecution of the husband for Where prosecution succeeds in leading evidence to show that (i) either the husband and wife were last seen together, or (ii)the offence was committed in the dwelling house, where the husband also resided, and if the accused husband offers no explanation as to the injuries received by his wife or if the explanation is false, held, there is strong circumstances which indicates that he committed the crimeBurden of proofPenal Code, 1860, S. 304B."
and also referring to judgment of the Hon'ble Supreme Court in "Maya Devi & Anr. Vs. State of Haryana" (Criminal Appeal No. 1263 of 2011 D/d. 7.12.2015) "15. Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:
"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 has 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.19
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)."
As stated earlier, the prosecution under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". In view of the Explanation to the said section, the word "dowry" has to be understood as defined in Section 2 of the Dowry Prohibition Act, 1961 which reads as under:
"2. Definition of 'dowry'. In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent 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 any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies".
has submitted that in view of evidence of P.W.5 to P.W10 and further evidence of C.W.1I.O and evidence of doctor P.W.11 who has stated that death cannot be caused due to hanging and death was due to 20 asphyxia as a result of strangulation by ligature, the prosecution has discharged initially onus that (i) deceased died seven years of marriage (ii) She died due to unnatural death (iii) Soon before death demand of motorcycle and colour T.V was made and (iv) she died in her sasural so the burden in terms of provision under Section 113(B) of the Evidence Act burden is now on the appellants to give explanation that they have presumption due to dowry death and no good explanation was given by the appellants, hence the learned Trial Court has rightly convicted the appellants guilty and accordingly appeal is liable to be dismissed.
23. The judgment relied on by the learned A.P.P in the case of "Trimukh Maroti Kirkan Vs. State of Maharashtra" (Supra) wherein charges were framed under Section 304B & 302 I.P.C. The Court have held that provision under Section 106 of the Evidence Act which burdens the accused with special knowledge of any fact to explain, it can be invoked but in the instant case charge has only been framed under Section 304B I.PC and in terms of provision under Section 113B of the Indian Evidence Act, prosecution have to prove its case beyond reasonable doubt on following ingredients of Section 304B I.P.C namely;
(a) The marriage was within seven years.
(b) Cause of death was unnatural
(c)Soon before the death the deceased was subjected to cruelty or harassment by the husband or the relatives of the husband. Thereupon in terms of provision of 113B of the Evidence Act, onus 21 were shifted on the accused persons to explain that in what circumstances the deceased died but in the instant case, the prosecution has failed to establish that soon before death the deceased was subjected to cruelty or harassment by the appellants or their family members. In as much as, P.W.1 to P.W.4 (independent witnesses) and Defence witnesses (D.W. 1 to D.W.5) have not supported the case of prosecution and similarly P.W.5(informant) and P.W.10(father of the deceased and P.W.9mother of the deceased have given contradictory statement to each other and this fact was supported by the objective evidence of the I.OC.W.1. So under this circumstances, we are of the considered view that Trial Court has erred in holding both the appellants guilty under Section 304(B) of the I.P.C. So, in view of the matter as the appellants are in custody since more than ten years, judgment of conviction dated 22.08.2008 and order of sentence dated 25.08.2008 are setaside and the instant appeals stand allowed. Both the appellants are directed to be released forthwith from custody if not required in any other case.
(Anant Bijay Singh, J) Pradip Kumar Mohanty, J: (Pradip Kumar Mohanty, J) High Court of Jharkhand, Ranchi Dated 30. 06.2016 Satyarthi/AFR