Allowed

Anjani Kumar v. the State of Jharkhand

Jharkhand HC17 Apr 2023Cr.A(SJ)/444/2015

Case brief

AI extract

What is this about?

This High Court allowed an acquittal appeal filed by the deceased woman's father. The trial court had acquitted the husband and his brother of murder (Section 302 IPC) while convicting them of dowry death. The High Court found the trial judge erred in ignoring medical evidence indicating murder, held the husband guilty of murder due to the nature of injuries, and convicted him of section 302 IPC.

What did the court decide?

Acquittal Appeal No.114 of 2018 allowed against Ashok Kumar; conviction for murder under Section 302 IPC and life imprisonment with fine.

Anjani Kumar Vs the State of Jharkhand — 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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I.A. No. 4160 of 2019

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Acquittal Appeal No. 114 of 2018

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Siya Yadav, aged about 54 years, son of Late Prasadi Yadav, resident of Prem Nagar, P.O & P.S. Telco, Town Jamshedpur, District Singhbhum East

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….. Appellant

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Versus

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The State of Jharkhand

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Ashok Kumar, son of late Ram Pravesh alias Shri Ram Tiwari

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Sitapato Devi wife of late Ram Pravesh alias Shri Ram Tiwari – (deleted)

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Anjani Kumar, son of late Ram Pravesh alias Shri Ram Tiwari

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All are residents of Thagu Bagan, Laxmi Nagar, P.O. Telco, P.S. Telco, Town Jamshedpur, District East Sighbhum …... Respondents

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With

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Criminal Appeal (SJ) No. 430 of 2015

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Ashok Kumar, son of Late Ram Pravesh @ Sriram Tiwary, resident of Jhagru Bagan, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum (Jharkhand).

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Sitapado Devi @ Sitapato Devi, wife of Late Ram Pravesh @ Sriram Tiwary, resident of Jhagru Bagan, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum (Jharkhand) – (deleted) ….. Appellants

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Versus

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The State of Jharkhand …... Respondent With Criminal Appeal (SJ) No. 444 of 2015

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Anjani Kumar, son of Late Ram Pravesh @ Sreeram Tiwary, resident of Jhagru Bagan, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum (Jharkhand) ….. Appellant

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Versus

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The State of Jharkhand …... Respondent

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PRESENT

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

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For the Appellants For the State	------- : Mrs. J. Mazumdar, Advocate [in Acq. Appeal No.114 of 2018] : Mrs. Priya Shreshtha, Spl.PP [in Cr. Appl. (SJ) No.430 of 2015] Mr. Gautam Rakesh, APP [in Cr. Appl. (SJ) No.444 of 2015]
For Resp. Nos.2 to 4	: Mr. Pramod Kumar, Advocate [in Acq. Appeal No.114 of 2018] -------

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2 Acquittal Appeal No. 114 of 2018 & Ors.

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O R D E R 17^th April 2023

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Per, Shree Chandrashekhar, J.

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Acquittal Appeal No.114 of 2018 has been filed by Siya Yadav who is the father of Rina.

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Ashok Kumar who is the husband, Sitapato Devi who is the mother-in-law and Anjani Kumar who is the brother-in-law of Rina were put on trial on the charge of causing her dowry death. An alternative charge under section 302 of the Indian Penal Code was also framed against them.

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S.T Nos.366 of 2012, 82 of 2013 and 143 of 2013 which were registered against the aforementioned accused persons have ended in their conviction on the charge under section 304-B of the Indian Penal Code; however, they have been acquitted for the charge under section 302 of the Indian Penal Code. These accused persons who are respondent nos.2 to 4 in this acquittal appeal have been convicted and sentenced to RI for 7 years under section 304-B of the Indian Penal Code.

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On a statement made on behalf of Sitapato Devi, Acquittal Appeal No.114 of 2018 qua respondent no.3 and Criminal Appeal (SJ) No.430 of 2015 qua the appellant no.2 have abated as she has died during pendency of these appeals.

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This appeal has been filed by the informant by virtue of proviso to section 372 of the Code of Criminal Procedure to challenge the judgment of acquittal of the accused persons under section 302 of the Indian Penal Code.

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However, the Registry has reported that there is delay of 1172 days in filing this acquittal appeal.

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In I.A No.4160 of 2019, the appellant has stated that Criminal Appeal (DB) No.508 of 2015 was filed on 20^th July 2015 against the judgment dated 18^th June 2015 passed in the aforesaid sessions trials. This appeal was taken up for hearing on 20^th March 2017 alongwith Criminal Appeal (DB) No.430 of 2015 filed by Ashok Kumar and Sitapato Devi when in view of the Stamp Reporting this Court had permitted the appellant to convert that criminal appeal into a criminal miscellaneous petition.

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The order dated 20^th March 2017 reads as under:

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3 Acquittal Appeal No. 114 of 2018 & Ors.

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“I.A. No. 1319 of 2017

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Mrs. Mazumdar, learned counsel appearing for the appellant submits that Cr. Appeal (DB) No. 508 of 2015, has wrongly been filed by the appellant in stead of criminal miscellaneous petition and therefore, prayer has been made to convert the same into criminal miscellaneous petition.

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Prayer is allowed.

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This Court directs the Registry to convert Cr. Appeal (DB) No. 508 of 2015 to a criminal miscellaneous petition and thereafter, send it for fresh stamp reporting.

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I.A. No. 1319 of 2017, stands disposed of accordingly.”

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Mrs. J. Mazumdar, the learned counsel for the appellant refers to the order dated 21^st February 2018 passed in Cr. M.P No.756 of 2017 passed by a Division Bench of this Court to indicate that by virtue of the liberty granted to the appellant, Criminal Appeal (DB) No.403 of 2018 was filed which has now been converted into Acquittal Appeal No.114 of 2018.

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From the proceedings in this acquittal appeal, we gather that Criminal Appeal (DB) No.403 of 2018 was filed on 19^th March 2018. 11. Viewed thus, there is no delay in challenging the judgment dated 18^th June 2015 passed in the aforementioned sessions trials. 12. I.A. No. 4160 of 2019 is allowed. 13. Telco P.S Case No.76 of 2012 was registered on the basis of the fardbeyan of Siya Yadav who has made specific allegation of demand of dowry and harassment and torture of his daughter in connection therewith. After the investigation, a charge-sheet was laid against Ashok Kumar under section 304-B of the Indian Penal Code for causing dowry death of Rina while the investigation against Sitapato Devi, Anjani Kumar and Pramila Devi was kept pending. Through supplementary charge-sheets dated 10^th September 2012 and 23^rd January 2013, Anjani Kumar and Sitapato Devi were sent up for trial to face the charge under section 304-B of the Indian Penal Code – Pramila Devi was found innocent. Accordingly, S.T Nos.366 of 2012, 82 of 2013 and 143 of 2013 were registered against Ashok Kumar, Sitapato Devi and Anjani Kumar. Simultaneously, an alternative charge under section 302 of the Indian Penal Code was framed against Ashok Kumar, Sitapato Devi and Anjani Kumar and S.T Nos. 82 of 2013 and 143 of 2013 were amalgamated with S.T No.366 of 2012 by an order dated 11^th July 2013.

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During the trial, the prosecution has examined 11 witnesses out of whom PW2, PW8 and PW10 have turned hostile; PW3, PW5 and

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4 Acquittal Appeal No. 114 of 2018 & Ors.

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PW7 are hearsay witnesses and; PW9 who is neighbour of the accused persons has deposed in the Court that Rina has committed suicide by hanging.

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Rina was married to Ashok Kumar on 28^th May 2011. According to the informant, he gave Rs.5 lacs in cash, Rs.71,000/- for a vehicle, some ornaments and household articles in the marriage but after Ashok Kumar got employment under Tinplate Company the accused persons started making demand of dowry. The informant again gave Rs.1,50,000/- to the accused persons but they continued with their demand of more dowry. Later on, when he visited the accused persons alongwith others they refused to settle the issue and therefore he was compelled to come back home. He has further stated that Ashok Kumar made a call to him at about 01.30 PM on 11^th March 2012 and threatened him to kill Rina whereupon he asked his son Gopal Kumar to visit the house of the accused persons where he found Rina lying on a bed. When Gopal Kumar insisted to meet his sister the accused persons did not permit him to see her whereupon he made forcible entry in her room and found his sister lying on a bed. On his request, Ashok Kumar brought Rina to Tinplate Hospital where the doctor declared her dead.

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In their defence, the accused persons have produced 4 witnesses to set up a defence that Rina has suffered an accidental death. The accused persons have also endeavored to demonstrate that Rina had good relations with her husband and in-laws but she wanted to live separately with her husband which was not accepted by Ashok Kumar due to which she was not happy with her husband.

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The learned trial Judge has referred to the evidence of PW1, PW5, PW6, PW7 and PW9 to hold that Rina who had good relations with her husband and in-laws could not have desired to stay away from them and lived separately with her husband. According to the learned trial Judge, these two facts cannot exist simultaneously as they are diametrically opposite. The learned trial Judge has held that the demand of dowry and torture and harassment of Rina in connection therewith have been established by the prosecution beyond all reasonable doubts. He has further recorded a finding that the death of Rina was not under normal circumstances and the injuries found on her dead body speak volumes

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5 Acquittal Appeal No. 114 of 2018 & Ors.

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about cruelty inflicted upon her by the accused persons soon before her death.

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After concluding that the charge under section 304-B of the Indian Penal Code has been proved beyond all reasonable doubts, the learned trial Judge has held that the charge under section 302 of the Indian Penal Code could not be proved by the prosecution.

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As noticed above, this acquittal appeal is confined to acquittal of the respondent nos.2 and 4 of the charge under section 302 of the Indian Penal Code.

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We are also seized with the Criminal Appeals filed by the convicts under section 304-B of the Indian Penal Code. 21. Where the death of a woman is caused by 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 of dowry, the accused shall be presumed to have committed dowry death. In the context of the offence of dowry death, this is well-remembered that through the Amendment Act, 43 of 1986 this new offence has been incorporated in the Indian Penal Code by inserting section 304-B. Simultaneously, the legislature has incorporated section 113-B in the Indian Evidence Act to raise a presumption of dowry death wherever a woman is shown to have died on account of cruelty or harassment caused to her soon before her death.

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In “Kamesh Panjiyar v. State of Bihar” reported in (2005) 2 SCC 388 the Hon'ble Supreme Court has held that the expression “soon before her death” needs to be examined in the peculiar facts and circumstances of the case and no strait-jacket formula can be evolved to find with certainty whether the woman was subjected to harassment and torture in connection to demand of dowry soon before her death. The expression “soon before her death” does not mean immediately before the death and what needs to be ascertained is whether there was any live nexus between the death of a married woman and demand of dowry and her harassment and torture at the hands of the accused persons.

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In “Kamesh Panjiyar” the Hon'ble Supreme Court has observed as under:

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6 Acquittal Appeal No. 114 of 2018 & Ors.

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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 strait-jacket 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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Therefore, on establishing a prima facie case that death of the woman has occurred within 7 years of marriage, the woman has died under circumstances otherwise than normal circumstance and soon before her death she was subjected to harassment and torture by the husband and/or his family members in connection to demand of dowry the burden shall shift on the accused to demonstrate that he was not involved in the crime. However, the statutory presumption under section 113-B of the Indian Evidence Act cannot be raised in every case as a matter of course. In “Shambhu Nath Mehra v. State of Ajmer” AIR 1956 SC 404 the Hon'ble Supreme Court has observed that section 106 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.

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The initial case of the prosecution was that the accused persons have committed dowry death of Rina and, accordingly, a chargesheet dated 1^st June 2012 against Ashok Kumar and supplementary chargesheets dated 10^th September 2012 and 23^rd January 2013 against Anjani Kumar and Sitapato Devi were laid in the Court under section 304-B of the

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7 Acquittal Appeal No. 114 of 2018 & Ors.

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Indian Penal Code. However, PW1 Siya Yadav who is the father, PW3 Bhola Choudhary and PW6 Munna Kumar Choudhary who are the neighbours and PW7 Rajesh Kumar Singh and PW9 Samru Yadav who are the co-villagers have made direct and specific allegations only against Ashok Kumar. In the circumstances of the case, the evidence against Anjani Kumar who is the brother-in-law of Rina must be held insufficient to hold him guilty.

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As PW1, the informant has deposed in the Court about demand of dowry after Ashok Kumar got employed under Tinplate Company and the accused persons sent continuous threats to him that they would kill Rina if their demands are not fulfilled. In his cross-examination, PW1 has made allegations against Anjani Kumar that he paid Rs.50,000/- to him on two occasions but he was not able to say with certainty that Anjani Kumar had also called him on 11^th March 2012. He has further stated that he does not remember whether Anjani Kumar and his mother had made demand of dowry. PW5 who is the younger brother of Rina has deposed in the Court that he has seen thumb marks over her neck and Anjani Kumar had taken her to Tinplate Hospital for treatment. He has further admitted that Anjani Kumar was not given money in his presence. PW6 who is a neighbour of the accused persons has stated that Rina never made any complaint against her in-laws and that she had good relations with her husband and in-laws. PW7 who is also a co-villager of the accused persons has stated in the Court that they never made demand for dowry and that Rina wanted to live with her husband separately. PW9 who is also a neighbour of the accused persons has stated that Rina has good relations with her husband and in-laws. He has also stated that Rina wanted to live separately with her husband and that she has committed suicide. As PW11, the investigating officer of the case has tendered evidence that he could see scratch marks on the hands and black marks over the neck of Rina. He has admitted in his cross-examination that Siya Yadav did not make any allegation against the accused persons that they would kill Rina if the demand of money is not fulfilled.

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Indisputedly, the prosecution witnesses have made specific allegation of demand of dowry by Ashok Kumar and harassment and torture of Rina in connection therewith. There is some evidence also

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8 Acquittal Appeal No. 114 of 2018 & Ors.

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against Anjani Kumar of making demand of dowry and payment of Rs.50,000/- to him by the informant on two occasions. However, the prosecution evidence against Anjani Kumar is not consistent inasmuch as PW3 has admitted in the Court that Anjani Kumar and Sitapato Devi never made any demand of dowry in his presence. From the cross-examination of PW1 whereunder he has admitted that he was not sure whether Anjani Kumar has spoken to him over telephone on 11^th March 2012 and threatened to kill Rina, the involvement of Anjani Kumar in causing death of Rina becomes doubtful. It is common knowledge that on death of a married woman her relatives would make omnibus allegations against the husband and his family members. Therefore, the duty of the Court is to separate chaff in the evidence of related witnesses.

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There is no presumption in law that all the family members of the husband must be held guilty for death or dowry death wherever a woman is found dead in her matrimonial home. Similarly, this is also not the law that a presumption under section 113-B of the Evidence Act of dowry death shall be raised against all family members. Rather, the prosecution is required to lay clear, cogent and sufficient evidence to rope in the family members. Having regard to the medical evidence, the silence of Anjani Kumar to explain the circumstances of the death of Rina is disquieting, but then, a brother for variety of reasons may not come forward to depose against his own brother. This also has to be kept in mind that PW7, PW8 and PW9 have deposed in the Court that Rina had good relations with her in-laws.

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Having regard to the facts and circumstances in the case, Criminal Appeal (SJ) No.444 of 2015 filed by Anjani Kumar is allowed. Anjani Kumar is discharged of the liability of the bail bonds furnished by him pursuant to the order dated 22^nd February 2017.

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This is really unbelievable that without any discussion the learned trial Judge has held that the charge under section 302 of the Indian Penal Code has failed.

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In “State of Punjab v. Jagir Singh” (1974) 3 SCC 277 the Hon'ble Supreme Court has observed as under:

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“23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial

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9 Acquittal Appeal No. 114 of 2018 & Ors.

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is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures”.

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In our opinion, the trial Judge has committed serious errors in law in coming to a conclusion that the charge under section 302 of the Indian Penal Code has failed.

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The provisions of the Code of Criminal Procedure, 1973 put no limitation on the powers of Appellate Court in dealing with appeal against acquittal. In “Sheo Swarup v. King-Emperor” AIR 1934 PC 227(2) Lord Russell of Killowen has written that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice. Since then, “Sheo Swarup” has been followed by the Courts in India. In “Harbans Singh v. State of Punjab” AIR 1962 SC 439 the Hon'ble Supreme Court has observed that before interfering in appeal with an order of acquittal the Court must examine not only the questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower Courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower Court that the guilt of the person has not been proved is unreasonable.

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Once it is found that Rina has died under unnatural circumstances and demand of dowry and her harassment and torture by Ashok Kumar in connection therewith is established, having regard to the evidence of PW4 who found ante-mortem external injuries over her dead body, subdural hemorrhages in the brain and mild contusion over her frontal and right mid parietal lobe of the brain the onus has shifted on Ashok Kumar to explain the injuries found on the dead body of Rina. The nature of injuries found on the dead body of Rina unerringly establish that she was assaulted with hard and blunt substance and strangulated to death. This was a clear case of murder of Rina in her matrimonial home but the trial Judge has ignored this vital piece of evidence to hold that the charge

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10 Acquittal Appeal No. 114 of 2018 & Ors.

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under section 302 of the Indian Penal Code is not proved.

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As PW4, Dr. J. Srinivas Rao has deposed in the Court that the injuries found on the dead body of Rina were ante-mortem in nature, caused by hard and blunt substance and the time elapsed since death was 18 to 24 hours from the postmortem examination.

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The following external injuries have been observed by PW4 on the dead body of Rina:

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“i. Pressure abrasion mark 2½ c.m x 1½ c.m present along the upper most part of right side neck, adjacent to the airway. ii. Linear abrasion vertical, 4 c.m. in length, present over right middle and lower part of the breast. iii. Linear abrasion 2 c.m. in length, present along right mid lower jaw.

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iv. Parallel linear scratches ½ c.m size, present along left upper and outer part of the neck with a surrounding area of contusion of 3 c.m. X2 c.m. size.

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v. Linear scratch abrasion 3 in number present along the dorso lateral aspect of right wrist of sizes 1 c.m., 1½ c.m and 1½ c.m.”

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PW4 has deposed in the Court that there was mild contusion over frontal and right mid parietal lobe of the brain of Rina and the brain was congested with subdural hemorrhages. In his cross-examination, PW4 has stated that he did not find any ligature mark around the neck of Rina and the injuries found over her dead body are not referable to a case of hanging. Presumably to a suggestion by the defence that there was no evidence of manual pressure over the neck of Rina, PW4 has stated in the Court that there is an observation about pressure abrasion over the neck.

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In every case where a married woman is found dead in her matrimonial house the husband and other family members cannot be held guilty as a matter of course. There may be cases of accidental or suicidal deaths or murder of the woman by a stranger/unknown person. Therefore, it is the duty of the prosecution to produce sufficient evidence to demonstrate prima facie that all hypothesis of innocence of the accused have been ruled out and that all circumstances taken together unerringly indicate that it was the accused who has committed the murder. But, at the same time, a husband who is living with his wife under the same roof must inform the Court what has happened to his wife on the fateful night. This is not the case set up by the husband that he was not in the house when the dead body of Rina was found in the matrimonial home. Chapter-VII of the Indian Evidence Act deals with burden of proof. Section 101 of the Evidence Act

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11 Acquittal Appeal No. 114 of 2018 & Ors.

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provides that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The expression “fact” has been defined under section 3 of the Evidence Act to mean and include (i) anything, state of things, or relation of things, capable to being perceived by the senses and to any mental condition of which any person is conscious. This is fundamental in law that the burden of proof in a criminal case lies on the prosecution which must prove facts sufficient to establish the charge against an accused. However, there are certain cases in which a statutory presumption on culpability of the accused can be raised by virtue of section 106 of the Evidence Act. Ashok Kumar has failed to offer any plausible and acceptable explanation to the incriminating circumstances appearing against him. His silence during his examination under section 313 of the Code of Criminal Procedure is quite disturbing. In a case like the present one where there is no eyewitness account of the occurrence available and the other circumstances clearly establish a homicidal death of Rina, this shall be the duty of the Court to raise a presumption under section 106 of the Indian Evidence Act that Ashok Kumar has committed her murder. As noticed above, the accused has failed to discharge the burden shifted upon him. Somewhere it is well said that circumstances do not lie. The circumstances of this case clearly establish guilt of Ashok Kumar.

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While so, we hold that the charge under section 302 of the Indian Penal Code has been proved against Ashok Kumar.

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Acquittal Appeal No.114 of 2018 is allowed against Ashok Kumar who is the respondent no.2.

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The judgment in S.T No.366 of 2012 by which Ashok Kumar has been acquitted of the charge under section 302 of the Indian Penal Code is set-aside and he is convicted and sentenced to imprisonment for life with fine of Rs.25,000/- under section 302 of the Indian Penal Code for committing murder of Rina.

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