Allowed¶27

Raju Sharma v. the State of Jharkhand

Jharkhand HC13 Mar 2024Cr.A(SJ)/906/2012

Case brief

AI extract

What is this about?

S.306 IPC conviction on S.304B/34 IPC charge without amendment; abetment of suicide; suicidal death by hanging; dowry cruelty allegations; S.113A Evidence Act presumption; foundational facts not proved; prosecution witness (brother of deceased) withheld; hostile witnesses P.W.4 and P.W.5; conviction and sentence set aside; criminal appeal allowed; sureties discharged; Jharkhand High Court Ranchi; Jamshedpur; S.T. Case No.92 of 2010; Jugsalai (Bagbera) P.S. Case No.204 of 2009; Gautam Kumar Choudhary, J.; decided 13.03.2024.

What did the court decide?

Conviction under Section 306 IPC and order of sentence set aside; sureties discharged from the liability of their bail bonds. ¶27

Raju Sharma Vs the State of Jharkhand — Dowry and Cruelty | Jharkhand HC (2024)

What the court decided

AI extract

Outcome

Conviction under Section 306 IPC and order of sentence set aside; sureties discharged from the liability of their bail bonds.

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Issue for consideration

Whether conviction under Section 306 IPC could stand when the charge was framed under Section 304(B)/34 IPC and the charge was never amended. +2 more

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Ratio / Principle

The prosecution failed to prove the foundational facts, so the presumption under Section 113A of the Evidence Act could not be drawn.

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Key takeaways

The brother of the deceased, the only witness said to have gone to meet her, was not examined and was withheld by the prosecution, leaving no eyewitness to the alleged abetment.ratio¶24
The judgment of conviction and order of sentence is set aside.ratio¶25
Criminal Appeal is allowed.ratio

Detailed headnote1 paragraphs

Cr. Appeal (SJ) No.906 of 2012, High Court of Jharkhand at Ranchi (decided 13.03.2024, Gautam Kumar Choudhary, J.). Appellants Raju Sharma and Rekha Devi challenged the judgment of conviction under Section 306 IPC and order of sentence dated 03.08.2012 passed by the Additional Sessions Judge 1st, Jamshedpur in S.T. Case No.92 of 2010, arising from FIR Jugsalai (Bagbera) P.S. Case No.204 of 2009 instituted on the fardbeyan of the informant Sudha Devi under Sections 498A, 304B/34 IPC, with trial under Sections 304B/34 IPC. Grounds of appeal: charge framed under Section 304(B)/34 IPC but conviction awarded under Section 306 IPC without amendment of charge; and absence of material showing abetment of suicide (post-mortem showed death by asphyxia due to hanging, suicidal in nature; P.W.4 and P.W.5 turned hostile). The Court found the prosecution had failed to prove the foundational facts required for the presumption under Section 113A of the Evidence Act, and that the deceased's brother — the only witness who had gone to meet her and whose inability to take her to her natal home was said to be the immediate cause of the suicide — had not been examined and stood withheld, leaving no eyewitness to the alleged abetment. Judgment of conviction and order of sentence set aside; Criminal Appeal allowed; sureties discharged from their bail bonds.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (SJ) No.906 of 2012

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(Against the Judgment of conviction and order of sentence both dated 03.08.2012 passed by learned Addl. Sessions Judge 1^st , Jamshedpur, in S.T. Case No.92 of 2010.)

1.Raju Sharma

2.Rekha Devi

…. Appellant

Versus

The State of Jharkhand. ….. Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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….. For the Appellants : Mr. Y. Raj Gupta, Advocate Mr. Shailesh, Advocate For the State : Mr. Anup Pawan Topno, APP

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By Court:- Heard learned counsel for the appellants and learned counsel for the State.

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1. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence both dated 03.08.2012 passed by learned Addl. Sessions Judge 1^st , Jamshedpur, in S.T. Case No.92 of 2010 [Jugsalai, Bagbera P.S. Case No.204 of 2009) whereby the appellants have been convicted under Section 306 IPC.

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2. As per the fardbeyan of the informant (Sudha Devi) recorded on 05.10.2009 that her daughter [Chanchal Devi] was married about one and half years ago with the appellant [Raju Sharma]. It is alleged that after the marriage, mother in law of the deceased (Rekha Devi) and her husband as well as the appellant started subjecting her to cruelty in reference to unlawful demand of dowry. It is alleged that on 04.10.2009 when the son of the informant had gone to the matrimonial home of the deceased to meet his sister and at that time, she was looking after her nephew. The deceased was assaulted by her mother-in-law in his presence as she was not properly looking after her nephew [son of her nanad]. The deceased wanted to come to her natal home, but her mother-inlaw did not permit her to go along with her brother. After the son of the informant returned at 2 O’clock, she received information that her daughter had been admitted in the Hospital. When they went to meet her daughter, she had died at that time.

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3. On the basis of the aforesaid ' fardbeyan ' of the informant, the Police instituted First Information Report being Jugsalai (Bagbera) P.S. Case No. 204 of 2009 under Sections 498A, 304B /34 IPC against both the appellants/accused.

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Police after investigation submitted charge-sheet and both the accused persons were put on trial under Sections 304B/ 34 IPC.

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4. Altogether six witnesses were examined on behalf of the prosecution and the relevant documents including the post-mortem examination report were put into evidence and marked as Exhibits.

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5. The impugned judgment of conviction and sentence has been assailed on the ground that charge has been framed under Section 304(B), 34 IPC, whereas conviction has been awarded under Section 306 IPC.

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6. It is argued that Section 306 IPC is not a minor offence to Section 304 B IPC and it was not permissible for conviction without amendment of the charge, as such, the impugned judgment of conviction and sentence is liable to be set aside on this ground alone. Non-framing of charge under Section 306 of the IPC, has caused serious prejudice to the Appellant in his defence.

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7. It is further argued that as per the post-mortem examination report, the death was caused due to asphyxia caused by hanging which was suicidal in nature. Out of six witnesses examined, P.W.3 is the Doctor, P.W.6 is the Investigating Officer, P.W.4 and P.W.5 being independent witnesses have not at all supported the case and they have been declared hostile on the prayer of the prosecution. There is no material to show that the Appellants had abetted the commission of suicide. In the absence of any evidence judgement of conviction and sentence is perverse.

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8. Learned APP for the State has defended the impugned judgment of conviction and sentence.

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9. Prosecution case rests upon the testimony of P.W.1 (informant) and P.W.2 (Prakash Sharma), father of the deceased. P.W.1 and P.W.2 are not the direct eye-witnesses of any act of abetment and they are hearsay. The brother of the deceased is said to have gone to meet his sister, but he was not permitted to take her to her natal home which became the immediate cause for the deceased to commit suicide. But this witness has not been examined, and has been withheld by the prosecution. In the absence of his examination, there is no eyewitness with regard to the allegation of abetement.

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Unless the foundational facts are proved, the presumption under Section 113A of the Evidence Act cannot be drawn. In this case, the prosecution has failed to prove the foundational facts. On merits, the only witness who had gone to meet the deceased was the brother of the deceased, but he was not examined. Judgment of conviction and order of sentence is set aside.

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Criminal Appeal is allowed.

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The sureties are discharged from the liability of their bail bonds.

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Let L.C.R. along with a copy of this judgment be sent to the court

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concerned at once.

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(Gautam Kumar Choudhary, J.)

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Jharkhand High Court, Ranchi Dated 13.03.2024. sandeep/

Raju Sharma v. the State of Jharkhand

Case brief

What is this about?

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Raju Sharma v. the State of Jharkhand

Case brief

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