Dismissed

The State of Jharkhand through Dc Dhanbad v. Anthony Francis

Jharkhand HC3 Apr 2023Acq. App./3/2018

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by the State challenging an acquittal in a dowry death case. The court held that the prosecution failed to prove harassment connected to dowry demand soon before death, barring the statutory presumption under Section 113-B of the Evidence Act.

What did the court decide?

Acquittal Appeal No. 3 of 2018 is dismissed; lower court records to be transmitted.

The State of Jharkhand through Dc Dhanbad Vs Anthony… — Dowry and Cruelty | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction)

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Acquittal Appeal No. 3 of 2018

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The State of Jharkhand through D.C. Dhanbad, PO, PS & District Dhanbad

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…. Appellant

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Versus

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Anthony Francis, s/o late Lazar Francis, r/o Muhalla Hesalong, Lapra, Mc- Luskiegang, PO & PS Luskieganj, District Ranchi. …. Respondent

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant-State : Mr. Saket Kumar, APP For the Respondent : None -------- ORDER 3^rd April 2023

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Per, Shree Chandrashekhar, J.

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The State of Jharkhand is in Appeal under section 378 of the Code of Criminal Procedure (in short, CrPC) challenging the judgment of acquittal of Anthony Francis passed in Sessions Trial Case No. 164 of 2008. 2. In a prosecution under section 304-B of the Indian Penal Code (in short, IPC), the prosecution has examined 9 witnesses out of whom PW5 Abdul Shakoor is the father and PW6 Md. Muzammil Ansari is the brother of Tabassum Parveen. According to the investigating officer of Jorapokar PS Case No. 33 of 2008 which was lodged on the basis of a written report given to the police by Abdul Shakoor on 10^th February 2008, PW1, PW2, PW3, PW4 and PW7 did not provide any information regarding demand of dowry by Anthony Francis who is the respondent in the present Acquittal Appeal.

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The case of the prosecution is that the respondent who was a tutor had solemnized inter-caste marriage with Tabassum Parveen and on account of non-fulfillment of his demand of dowry he used to ill-treat and threaten his wife to kill her. The further case of the prosecution is that the respondent alongwith his brother Joseph Francis and sister Baby Anthony have committed murder of Tabassum Parveen on 9^th February 2008.

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Dr. Swapan Kumar Sarak who conducted the postmortem examination over the dead body of Tabassum Parveen has found a ligature mark of the size of ½ inch x ¼ inch wide over thyroid on the front of her

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neck, running obliquely upwards and backwards on both sides towards ear lobule on right side and left side of occipital region, with a gap of 6 inch on back.

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As PW8, the doctor has rendered an opinion that the aforesaid external injury was antemortem in nature, subcutaneous tissues beneath ligature mark were dry white and no abnormality was found over soft tissue of the neck. PW8 has further found that mucous membrane of trachea and larynx were found congested, both lungs were also congested and, infact, all internal organs were found congested.

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In the opinion of the doctor, Tabassum Parveen had died within 18 to 24 hours of the postmortem examination and her death was due to asphyxia as a result of hanging.

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The investigating officer has admitted in the Court that she did not seize broken bangles, ladder, rassi etc. from the place of occurrence which is the matrimonial home of Tabassum Parveen.

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The learned trial Judge has held that PW5 and PW6 were not consistent on the point of demand of dowry by the respondent. The marriage of the respondent was solemnized with Tabassum Parveen in the Registrar Office and, later on, upon insistence of the parents of Tabassum Parveen, Nikah was also performed.

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The learned trial Judge has referred to the judgments in “ Baijnath v. State of Madhya Pradesh ” (2017) 1 SCC 101 and “ Bharat Bhushan v. State of Madhya Pradesh ” (2014) 13 SCC 525 to arrive at a conclusion that the prosecution has failed to establish that soon before her death Tabassum Parveen was subjected to harass and torture in connection to demand of dowry.

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As regards cruelty and harassment of Tabassum Parveen soon before her death, the learned trial Judge has held as under:

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“27. The evidence regarding commission of cruelty and harassment to the deceased is also not very consistent and cogent. No prior report, as aforesaid, has been lodged in this regard anywhere including the police or the Anjuman Committee. Simply because the death has been caused within seven years of the marriage, the presumption of dowry death U/s 113-B of the Evidence Act will not be attracted. To draw this presumption, the prosecution has to prove by a cogent, credible and trustworthy evidence that dowry was demanded and the deceased was harassed for the same and she was subjected to torture or harassment soon before her death. If

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these ingredients of Sec. 304-B IPC are proved beyond reasonable doubts, then only the presumption U/s 113-B of Evidence Act will be attracted.”

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In a prosecution under section 304-B of IPC, it is necessary for the prosecution to prove such facts to establish the following ingredients: (i) death within 7 years (ii) death otherwise than under normal circumstances and (iii) soon before her death woman was subjected to harass and torture in connection to demand of dowry.

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In “ Baijnath ” the Hon'ble Supreme Court has observed as

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under :

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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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The prosecution has established that Tabassum Parveen has died unnatural death inasmuch as the medical evidence clearly establish that Tabassum Parveen has committed suicide.

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The presence of ligature mark running obliquely upwards and backwards on both sides clearly established that it was a case of suicide and not a homicidal death ( refer: Textbook of Medical Jurisprudence and Toxicology by Modi 26^th Edition). The death of Tabassum Parveen has occurred within 7 years of marriage has also been established by the prosecution. However, there is no evidence on the record that soon before her death Tabassum Parveen was subjected to harassment and torture in connection to demand of dowry. No doubt there is no fixed time-frame to find whether soon before her death the woman was subjected to harassment and torture. But then, the prosecution must show that there was a live-link between the demand of dowry and death of the woman. As noticed above, the prosecution has miserably failed to establish that soon before her death Tabassum Parveen was subjected to harassment and torture in connection to demand of dowry.

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The expression “soon before the death” is not defined in the

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statutes and as held in “Kamesh Panjiyar v. State of Bihar” (2005) 2 SCC 388 the expression “soon before” is a relative term and it would depend upon the circumstances of each case.

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As PW5, the father of the victim girl has deposed in the Court about assault upon his daughter by the respondent, his brother Joseph Francis and sister Baby Anthony in connection to demand of dowry. He has further stated in the Court that his daughter used to inform him about her ill-treatment at the hands of the accused persons and her husband would beat her in drunken state. However, in his cross-examination, PW5 has admitted that he did not make any allegation of demand of dowry in his written complaint given to the police; he has not made any allegation about demand of Rs.5,000/- or Rs.20,000/- and; he did not make any allegation of demand of motorcycle by the respondent. PW6 who is the brother of the victim girl has also made statements in the Court regarding harassment and ill-treatment of his sister in her matrimonial home. At the same time, PW6 has admitted in his cross-examination that he did not inform the police about demand of Rs.5,000/- and Rs.20,000/- by the respondent. He has also stated that after payment of Rs.20,000/- his sister was treated properly in her matrimonial home for few days.

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The statements made by PW5 and PW6 in the Court regarding demand of Rs.5,000/- and Rs.20,000/- by the respondent are definitely improvements by them in the Court inasmuch as these witnesses have admitted in the Court that they did not make such statements before the police.

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This is a well-accepted proposition in law that the judgment of acquittal recorded by the learned trial Court is not interfered with by the High Court on some minor mistakes in appreciation of the evidence and, that, the view taken by the learned trial Court must be accorded precedence.

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In “Sambasivan v. State of Kerala” (1998) 5 SCC 412 the Hon’ble Supreme Court has observed as under:

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“7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an

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accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.....”

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Having examined the materials on record, we find no ground to interfere in this matter and, accordingly, Acquittal Appeal No. 3 of 2018 is dismissed.

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Let the lower Court records be transmitted to the Court concerned, forthwith.

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Let a copy of the judgment be transmitted to the Court concerned through FAX.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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High Court of Jharkhand, Ranch Dated: 3^rd April 2023 RKM/ NAFR

The State of Jharkhand through Dc Dhanbad v. Anthony Francis

Case brief

What is this about?

What did the court decide?

The State of Jharkhand through Dc Dhanbad v. Anthony Francis

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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