Dismissed¶53

Durga Bhakat v. the State of Jharkhand

Jharkhand HC20 Aug 2024Cr.A(DB)/725/2012

Case brief

AI extract

What is this about?

Jharkhand HC (DB: Ananda Sen & Gautam Kumar Choudhary, JJ.), 20.08.2024 — Cr. Appeal (D.B.) Nos. 725/2012 & 788/2015, Durga Bhagat & Somar Bhkat v. State of Jharkhand: dowry-death conviction upheld; bride burnt within two months of marriage (m. 25.05.2009, d. 28.07.2009) over bed-and-ring demand; S.304B/34 & S.498A IPC sentences affirmed; S.113B Evidence Act presumption invoked; simultaneous 304B+498A conviction permitted per Gurmeet Singh (2021) 6 SCC (relied on); Kamesh Panjiyar (2005) 2 SCC 388 referred.

What did the court decide?

Within two months of marriage the deceased was burnt to death; death by burn injuries is evident from the post-mortem report and the Doctor's evidence, and there is sufficient evidence of demand of dowry from P.W.-1, P.W.-5, P.W.-7, P.W.-8 and P.W.-9, with assault and demand soon before death. ¶43

Durga Bhakat Vs the State of Jharkhand — Dowry and Cruelty | Jharkhand HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the prosecution proved the basic ingredients of Section 304B IPC — death by burns of the deceased within about two months of marriage, with dowry demand and torture soon before death — despite alleged contradictions between witness statements. +2 more

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Court's answer

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Ratio / Principle

The contradictions referred to on behalf of the appellants are not vital so as to be fatal to the prosecution case.

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Key takeaways

With all ingredients of Section 304B IPC established, the onus shifted upon the appellants to prove their innocence; nothing on record shows they discharged it, and the presumption of dowry death operates against them as direct in-laws (mother-in-law and husband), nothing suggesting absence from the place of occurrence or non-involvement in the dowry demand and torture.ratio¶45
The Trial Court's conviction of the appellants under Sections 304B and 498A IPC involved no illegality, having considered all aspects and evidence; this court found no material to differ with the Trial Court's findings.ratio¶46

Detailed headnote1 paragraphs

Criminal Appeals (D.B.) Nos. 725 of 2012 and 788 of 2015 — conviction under Sections 498A and 304B/34 IPC upheld; appeals dismissed. The appellants, Somar Bhkat (husband) and Durga Bhagat (mother-in-law) of the deceased, were convicted by the Additional Sessions Judge-III, Jamshedpur in Sessions Trial No.351 of 2009 and sentenced to R.I. for ten years under Sections 304B/34 IPC and R.I. for two years with fine of Rs.1000/- each under Section 498A IPC. The deceased, married on 25.05.2009, was burnt to death on 28.07.2009, about two months after marriage, amid persistent demands for a bed and ring; post-mortem (P.W.-6) attributed death to shock of burn with an antemortem contusion. Held (Ananda Sen, J.): contradictions in witness statements were not vital; the ingredients of Section 304B IPC stood established, shifting the onus onto the accused under Section 113B of the Evidence Act, which they failed to discharge; and, relying on Gurmeet Singh v. State of Punjab, (2021) 6 SCC, a simultaneous conviction under Sections 304B and 498A IPC is sustainable as the offences are distinct. Pending interlocutory applications disposed of.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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( Against the judgment of conviction dated 23.04.2012 and order of sentence dated 27.04.2012 passed by learned Additional Sessions Judge-III, Jamshedpur in Sessions Trial No.351 of 2009 ).

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………

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Cr. Appeal (D.B.) No. 725 of 2012

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Durga Bhagat @ Durga Bhakat, W/o Late Maheshwar Bhakat, R/o Village & P.O. Pichli, P.S. Potka, District East Singhbhum

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….. Appellant

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Versus The State of Jharkhand …. Respondent

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WITH

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Cr. Appeal (D.B.) No. 788 of 2015

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Somar Bhkat @ Samar Bhakat @ Samir Bhagat, S/o Late Maheshwar Bhakat, R/o Pichli, P.S. & P.O. Potka & District East Singhbhum

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….. Appellant

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Versus

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The State of Jharkhand …. Respondent

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……… For the Appellants : Mr. Akhouri Awinash Kumar, Advocate Mr. Yogesh Modi, Advocate For the State : Mr. Vishwanath Roy, Spl. Public Prosecutor Mr. Vineet Kumar Vashistha, Spl. Public Prosecutor -----------

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PRESENT Sri Ananda Sen, J. Sri Gautam Kumar Choudhary, J.

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J U D G M E N T

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20.08.2024

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Per Ananda Sen, J. :

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We have heard in details, the learned counsel appearing on behalf of the parties, we have gone through the entire records including the evidence led by the parties, impugned order and exhibits.

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2 . These criminal appeals are directed against the conviction and sentence of the appellants vide judgment of conviction dated 23.04.2012 and order of sentence dated 27.04.2012 passed by learned Additional Sessions Judge-III, Jamshedpur in Sessions Trial No.351 of 2009, whereby the appellants have been convicted under Sections 498A and 304B/34 of the Indian Penal Code and they have been sentenced to

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undergo R.I. for ten years for the offence punishable under Sections 304B/34 of IPC and R.I. for two years and fine of Rs.1000/- each for the offence under Section 498A of IPC.

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3 . Learned counsel for the appellants submits that without any evidence to implicate the appellants under Section 304B of the Indian Penal Code, the appellants have been convicted. As per him the prosecution has not been able to prove the basic ingredients of Section 304B of IPC. When the basic ingredients have not been established by the prosecution, conviction under Section 304B of IPC cannot be sustained as the law of reverse burden cannot be applied. The chain of circumstances in this case is also not complete. There are no sufficient materials to prove involvement of these appellants. The statement of P.W. 11 contradicts the statement of P.W.-1, P.W.-5, P.W.-7 and P.W.-8. The evidence of P.W.-9 does not inspire any confidence. Even the name of villagers from whom P.W.-9 had received the information has not been divulged. Solely on the basis of the interested witness, the appellants cannot be convicted. P.W.-5 and P.W.-7 stated that they have not given any statement before the police, thus, their evidence for the first time in the Court should not have been accepted. He lastly submitted that when the conviction is under Section 304B of IPC, there cannot be a simultaneous conviction under Section 498A of IPC. On these grounds the learned counsel for the appellants prays for acquittal.

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4 . Learned counsel for the State submits that this is a case of dowry death. Appellant, namely, Durga Bhagat @ Durga Bhakat is motherin-law of the deceased, whereas appellant, namely, Somar Bhkat @ Samar Bhakat @ Samir Bhagat is the husband of the deceased. The deceased was married with Somar Bhkat on 25.05.2009 and she died on 28.07.2009 i.e. about two months from the date of marriage. The deceased was burnt to death and there is evidence of consistent demand of dowry. The evidence clearly establishes all the ingredients, which is necessary to be established by the prosecution under Section 304B of IPC. When the ingredients of Section 304B of

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IPC is established by the prosecution, in terms of Section 113B of the Evidence Act, the burden shifts upon the accused to prove their innocence. In this case, the appellants had to prove their innocence by discharging the onus, which they failed. Thus, in view of Section 113B of the Evidence Act, it is presumed that these appellants have committed the offence.

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5 . In this case altogether eleven witnesses were examined by the prosecution.

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P.W.-1 is Padmawati Rani Bhkat, she is the person, who resides near the house of these appellants, which is the matrimonial house of the deceased. As per her statement her house is just four houses next to the house of appellants. Though she is the aunt of the deceased, she stated that at the time of marriage one bed and the ring was not given, for which the deceased was regularly assaulted by her husband, Somar Bhkat and her mother-in-law. Because of this assault, the deceased took refuge at the house of this witness and the panchayati was called. After two months for the marriage again a quarrel had taken place at the night, as the articles were not given and the deceased came to her house and asked for Rs.200/-. Rs.100/was given to her and Rs.100/- to her husband in the morning and on the same day at 9.00 A.M. in the morning she heard that house of Somar is on fire. When she saw her niece in burnt condition, she asked her then she told that her mother-in-law and her husband have burnt her and she later on died. She further stated that when she reached the place of occurrence no one was there and later on people arrived.

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P.W.-2 is Bankim Chandra Bhkat. He stated that he does not know anything about the occurrence, but had heard that the deceased died due to burn injury.

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P.W.-3 (Kriti Mandal) and P.W.-4 (Padamlochan Bhkat) have been declared hostile.

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P.W.-5 (Navin Tara) is the mother of the deceased. She also stated that at the time of marriage, Rs.10,000/- cash was given

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including ornaments and utensils. She remained peacefully for eight days, but thereafter torture started for non-fulfilment of demand of bed and ring, which they could not provide. Daughter had informed her about the torture and when her daughter called her, the husband of this deceased snatched the telephone and also told her that her daughter will be assaulted. Even P.W.-1 also informed her about the assault upon her daughter by the in-laws. She further stated that her daughter was done to death due to non-fulfilment of demand of dowry.

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P.W.-6 (Dr. Uma Shankar Prasad) is the Doctor, who conduct the post-mortem of the deceased on 29.07.2009. He was posted in Department of FMT at MGM Medical College, Jamshedpur. He found the following :-

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“Antemortem dermo epidermal burn injuries were found all over the body except middle portion of front of abdomen. On dissection of scalp, an area of contusion of size 2 ½ C.M. x 1 ½ C.M. on under surface of skin of scalp over left side frontal aspect was found. On removal of skull bones the meninges and brain were found congested. On dissection or thoraco- abdominal cavities- all the viscera were found congested. The stomach was found empty except scanty serous fluid. “

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In his opinion, the death was due to shock of burn. The contusion found was caused by hard and blunt object and was antemortem.

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P.W.-7 (Srikant Bhkat) is also the uncle of the deceased, who stated that the deceased was being assaulted because at the time of marriage, the bed and ring was not given. He also stated that Rs.200/- was given on request to her niece and on the same day in 10.00 A.M. his wife (P.W.-1) told him that the deceased died because of burn injury. He also went to the place of occurrence and had seen the burnt dead body.

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P.W.-8 (Kamal Bhkat) is the brother of the deceased, who stated that his sister told him and his mother that appellants had burnt her to death, as the ring and bed was not given at the time of marriage. He stated that he told the Sub-Inspector of Police that he was informed by her sister about the entire incident and how both these appellants had set her on fire.

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P.W.-9 (Fagu Ram Bhkat) is the informant of this case. He is the father of the deceased. As per his statement deceased was married two years ago, from the date of recording of the evidence. He stated that there was persistent demand and torture by the appellants. There was demand for bed and ring, for which, the daughter was tortured. He went to the matrimonial house of his daughter to bring her back, but the appellants did not let her return with him. He stated that his daughter was burnt to death.

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P.W.-10 (Dr. Vibhakar Kumar) is the Doctor, who had exhibited the post-mortem report.

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P.W.-11 (Ramadhar Singh) is the Investigating Officer, who inspected the place of occurrence and recorded the statement of the witnesses during investigation. He stated that northern portion of the room was fully burnt. He sent the dead body for post-mortem and he proved the inquest report. He recorded the statement of Srikant Bhkat, Padmalochan Bhkat of the Village- Pichali. He further stated that it is Mahadev Bhkat, A.S.I. who had recorded the fardbeyan on 28.07.2009 at 6.00 P.M. at MGM Hospital.

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6 . Contradictions referred to on behalf of the appellants are not vital so as to be fatal to the prosecution case. From the evidence led by the parties and also from the documents, we find that within two months of marriage, the deceased was burnt to death. Death of the deceased by burn injuries is evident from the post-mortem report and the Doctor’s evidence. These facts have been established by the prosecution. Further, there is sufficient evidence of demand of dowry, which is apparent from the evidence of P.W.5, P.W.-9, P.W.1, P.W.-7 and P.W.-8. The day before the death, they assaulted the deceased, which is apparent from the statement of P.W.-1 and P.W.7. Even the informant also stated that there was consistent demand of dowry. Eight days after the marriage, assault and the demand started. The span of marital life of the deceased was only two months. This clearly suggest that soon before death, there was torture and demand for dowry, as a result of which, she was burnt.

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7. When all the ingredients of Section 304B of IPC has been established by the prosecution by the evidence, the onus shifts upon the appellants to prove their innocence. In this case, we find that there is nothing on record which would suggest that these appellants have discharged the onus. As per the provision of law, presumption is in favour of dowry death against the in-laws. These appellants are the direct in-law of the deceased, being the mother-inlaw and husband. There is nothing in evidence to suggest that they were not present at the place of occurrence or were not involved in the demand of dowry and torture.

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8. The Trial Court considering all these aspects convicted these appellants for committing offence under Section 304B and 498A of IPC. We find no illegality in the finding, as the Trial Court had considered all the aspects and the evidences and had come to a finding that these appellants are guilty of the offence. We also find no material to differ with the findings of the Trial Court.

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9 . So far as punishment under Section 498A along with Section 304B is concerned, the Hon’ble Supreme Court in the case of Gurmeet Singh vs. State of Punjab , reported in (2021) 6 SCC at paras 19 and 20 has held as under:-

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“19 . Lastly, the counsel on behalf of the appellant argued that without any charges under Section 498-A IPC a conviction under Section 304-B IPC cannot be sustained. On this aspect this Court in Kamesh Panjiyar v. State of Bihar [Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 : 2005 SCC (Cri) 511] held as under : (SCC pp. 394-95, para 12)

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“12. … It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.” (emphasis supplied)

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20. Therefore, the argument raised by the counsel on behalf of the appellant cannot be accepted as the offences under Section 498-A and Section 304-B IPC are distinct in nature. Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

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10 . Considering the aforesaid judgment, we hold that the appellants can be punished under these Sections and there is no illegality in holding the appellants guilty for committing offence under Section 304B of IPC and Section 498A of IPC.

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11 . From the cumulative effect, we find no merit in these appeals. These Criminal Appeals are dismissed.

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12. The Trial Court Record along with a copy of this judgment be sent back to the Trial Court.

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13. Pending Interlocutory Application(s), if any, stands disposed of.

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(Ananda Sen, J.)

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(Gautam Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated 20/08/2024 NAFR /R.S./ Cp 03.

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Durga Bhakat v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Durga Bhakat v. the State of Jharkhand

Case brief

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