Allowed

Shiv Charan Mahto And Ors. v. The State Of Jharkhand

Jharkhand HC10 Aug 2020Cr.A(DB)/46/2016

Case brief

AI extract

What is this about?

A two-judge bench of the Jharkhand High Court recalled an acquittal of appellants convicted under s. 304-B/34 IPC for dowry death. The court held the prosecution failed to prove cruelty/harassment prior to death and that medical evidence supported accidental death, not homicidal burns.

What did the court decide?

The appeal was allowed; the conviction and sentence were set aside; the appellant in jail custody was released, and others on bail were discharged.

Shiv Charan Mahto And Ors. Vs The State Of Jharkhand — Dowry and Cruelty | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (DB) No. 46 of 2016

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(Against the judgment of conviction dated 15.12.2015 and the order of sentence dated 18.12.2015 passed by the learned Addl. Sessions Judge-III, Seraikella-Kharsawan in Sessions Trial No. 11 of 2010)

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Shiv Charan Mahato, s/o Sri Sharad Chandra Mahto

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Sharad Chandra Mahato, s/o Sri Gour Chandra Mahto

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Laltu Mahato, s/o Sri Sharad Chandra Mahto

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All resident of village & P.O.-Kolebira, P.S.-Seraikella, District-Seraikella Kharswan … Appellants

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Versus

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The State of Jharkhand … Respondent

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For the Appellants : Mr. H. K. Mahato, Advocate For the State : Mrs. Priya Shrestha, A.P.P

(Through V.C)

PRESENT

HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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JUDGEMENT

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Per, Shree Chandrashekhar, J . Dated: 10^th August, 2020 (Oral)

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In Sessions Trial No. 11 of 2010, the appellants, namely, Shiv Charan Mahato, Sharad Chandra Mahato and Laltu Mahato have been convicted under section 304-B/34 IPC. Shiv Charan Mahato and Laltu Mahato have suffered the sentence of R.I for life under section 304-B/34 IPC and Sharad Chandra Mahato was sentenced to R.I for 10 years for the said offence.

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2. Raibu Mahato, the father of Sumitra Devi, is the informant of this case. On the basis of his fardbeyan recorded on 22.10.2009 at about 12:15 hrs. in the Emergency Ward of M.G.M Hospital, Jamshedpur, Seraikella P.S. Case No. 101 of

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2009 was registered under section 304-B/34 IPC against Shiv Charan Mahato, Sharad Chandra Mahato, Laltu Mahato and Phulmati Devi, the mother-in-law. After the investigation a charge-sheet was filed against the above-named accused persons and they have faced the trial on the charge of causing dowry death of Sumitra Devi; during the trial the mother-in-law has died.

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3. The case of the prosecution is that Sumitra Devi was continuously harassed and tortured by the accused persons in connection to demand of motorcycle and in the night of 21.10.2009 the accused persons assaulted Sumitra Devi and set her on fire. She suffered serious burn injuries and succumbed to death the next day at M.G.M Hospital, Jamshedpur, where she was taken for treatment. The case setup by the accused persons is that Shiv Charan Mahato was residing with Sumitra Devi in a house separate from the other accused persons and in the night of 21.10.2009 a fire broke out in the house when Sumitra Devi was sleeping and she suffered burn injuries in the incident.

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4. During the trial the prosecution has examined nine witnesses; the informant is P.W.6.

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5. P.W.1 is the mother of Sumitra Devi and P.W.2 is her brother.

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6. To prove the charge of dowry death against the appellants the prosecution has laid evidence on: (i) harassment and torture of Sumitra Devi (ii) motive, and (iii) medical evidence.

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7 . In a case based on circumstantial evidence, an interference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with innocence of the accused and the circumstances from which an interference of guilt of an accused are drawn have to be proved beyond reasonable doubt. In “Bhagat Ram Vs. State of Punjab” reported in AIR 1954 SC 621 , the Hon’ble Supreme

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Court has observed that when a case depends upon the conclusions drawn from the circumstances the cumulative effect of the circumstances must be such as to negative innocence of the accused and bring home the offences beyond any reasonable doubt.

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8 . The essential ingredients for constituting the offence under section 304-B IPC are : (i) death has occurred within seven years of marriage, (ii) the death was caused by any burn or any bodily injury or in the circumstances otherwise than normal, and (iii) soon before her death the victim was subjected to cruelty and harassment in connection to demand of dowry by her husband or any relative of her husband. On harassment and torture of Sumitra Devi at the hands of the appellants the prosecution has led evidence through P.W.1, P.W.2 and P.W.6. These witnesses have deposed in the Court that after the marriage Sumitra Devi was received well in her matrimonial home for about one month but thereafter the appellants started demanding more money and due to non-fulfillment of dowry they would assault her. PW-1 has stated that her daughter used to tell her about the demand of dowry and harassment and torture at the hands of the accused persons over telephone, however, in her cross-examination she has admitted that there is no telephone connection in her house. PW-2 has stated that his sister whenever visited his house informed him about demand of motorcycle by her husband, but, in his cross-examination he has failed to state when his sister had visited him. PW-6 has also made allegations of demand of motorcycle and money, however, he has deposed in the Court that he does not know how his daughter had caught fire. By saying this he has shattered the prosecution story of burning of his daughter by the appellants. He has further stated that his son-in-law and his family members had taken his daughter to hospital and they have performed the last rites. And, in their testimony these witnesses are completely silent about day, date, month

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or even year of the demand of dowry. Contrary to their evidence, PW-4 has deposed in the Court that Sumitra Devi was living happily in her matrimonial house and PW-5 has stated that Sumitra Devi never complained about her ill-treatment by the accused persons. Co-villagers, namely, Subhash Chandra Mahto-P.W.7 and Bharat Mahato-P.W.9 have come to the Court to depose that a fire had broken out in the night of 21.10.2009 in the house of Shiv Charan Mahto and in the incident Sumitra Devi had suffered burn injuries.

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9. The expression soon before her death is not capable of any precise definition; no straight-jacket formula can be evolved for arriving at a conclusion whether soon before her death a woman was subjected to harassment and torture in connection to demand of dowry. It depends on the facts of the case. In “Kamesh Panjiyar Vs. State of Bihar” reported in (2005) 2 SCC 388 , the Hon'ble Supreme Court has observed as under:

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“11. ….... Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.”

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10. In “Baijnath and others Vs. State of Madhya Pradesh” reported in (2017) 1 SCC 101 , the Hon'ble Supreme

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Court has dealt with the presumption under section 113-B of the Evidence Act, 1872, thus ;

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“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 harassment 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.

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30. 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 above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.”

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11. From the testimony of the prosecution witnesses, it is not established that soon before her death Sumitra Devi was subjected to harassment and torture by the appellants in connection to demand of dowry and, therefore, on this count alone the conviction of the appellants under section 304-B IPC must be held bad in law.

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12. P.W.3, Dr. Lalan Chaudhary who has conducted the post-mortem examination on 23.10.2009, has found multiple abrasions on the body of Sumitra Devi. He has found ante-mortem dermo-epidermal burnt injuries all over her body except scalp and the soles. The learned counsel for the appellants has relied on the medical jurisprudence to contend that Sumitra Devi had suffered accidental death.

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13. Modi in his book “Medical Jurisprudence & Toxicology” (22^nd edition) writes that in case of death by intense heat the brain, its meninges and the lungs are usually congested. In case of death caused by kerosene oil, petrol or some other combustible substance characteristic smell of that substance is distinctly found and there would be sooty blackening of the parts of the dead body. The post-mortem

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report of Sumitra Devi does not indicate presence of any sooty blackening on the dead body and P.W.3 has not stated that he found the characteristic odour of kerosene oil, petrol or any combustible substance. He has found the brain highly congested, the lungs congested, vesera congested and heart and bladder empty. Modi has written that burns produced by flame may or may not produce blisters, but singes of the hair, eye-brow and blackening of the skin is always present on the dead body. P.W.3 has stated that the forehead, scalp hair, eye-brows and pubic hair of Sumitra Devi were singed. It is also important to indicate that in case of death due to burn the victim may not have CO in his blood due to convection air current, flash fire, inhalation of super-heated air etc. The post-mortem report would reveal that no CO content was found in the blood of Sumitra Devi. The presence of injury on a dead body in case of death by fire has also been discussed by Modi in his book. He has written that there may be some injury suffered by the person who was struggling to come out from a fire which may cause false suspicion of violence and sometimes burn injury is projected to support a false charge of murder. The multiple abrasions found on Sumitra Devi are superficial injuries which can be caused during struggle to come out from the fire and in any case these injuries are not the determinative factor, particularly, in view of the aforesaid findings recorded in the post-mortem report.

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14. Because no other characteristic of homicidal burn injuries has been found on Sumitra Devi by P.W.3, his observation that Sumitra Devi did not suffer burn injuries on the upper portion of her body, sole of her legs etc., homicidal death of Sumitra Devi is completely ruled out. The defence story that Sumitra Devi suffered burn injuries while she was sleeping in her room is corroborated to some extent by the evidence of P.W.3 who has stated in his cross-examination that about three hours prior to suffering burn injuries Sumitra Devi had taken food. And, she has committed suicide by

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setting herself ablaze is not the case pleaded by the prosecution.

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15 . Another remarkable feature of this case is that the prosecution witnesses – P.W.5, P.W.7, and P.W.9 have supported the defence story that in the night of 21.10.2009 the house of Shiv Charan Mahato caught fire and in the incident Sumitra Devi has suffered burn injuries. These witnesses were not declared hostile by the prosecution and their evidence is binding on the prosecution. In fact, their evidence is corroborated by the medical evidence [refer, “Javed Masood Vs. State of Rajasthan” reported in (2010) 3 SCC 538 and “Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi)” reported in (2005) 5 SCC 258 ].

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16. Therefore, the defence story that Sumitra Devi had suffered accidental burn injuries is the most probable and acceptable cause for her death.

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17. In “Bakshish Ram and Another Vs. State of Punjab” reported in (2013) 4 SCC 131, the Ho'ble Suprme Court has held as under:

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“ 19. ......... A perusal of section 113-B of the Evidence Act and section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances.”

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18. To conclude, we find that the essential ingredients for constituting the offence under section 304-B IPC are missing in this case and, therefore, we hold that the prosecution has failed to establish the charge under section 304-B IPC against the appellants.

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19. Accordingly, the conviction and sentence of the appellants under section 304-B IPC in Sessions Trial No. 11 of 2010 are set-aside. The appellant, namely, Shiv Charan Mahato who is in jail custody shall be released forthwith, if not wanted in connection to any other case.

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20. The appellant no.2, namely, Sharad Chandra

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Mahato and appellant no. 3, namely, Laltu Mahato who are on bail are discharged of the liability of the bail-bonds furnished by them.

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21. In the result, Criminal Appeal (DB) No.46 of 2016 is allowed.

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22. Let the lower-Court records be sent to the Court concerned, forthwith.

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23. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.

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