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Sanjay Kumar Jha vs State Of Bihar on 9 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.91 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BEGUSARAI

1. Chandra Kant Jha, son of Late Dahu Jha

2. Sita Devi, wife of Shri Chandra Kant Jha, both residents of Mohalla Shrikrishna
Nagar, P.S. Begusarai, District Begusarai
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent
with

Criminal Appeal (SJ) No. 98 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BEGUSARAI

Sanjay Kumar Jha, son of Shri Chandra Kant Jha, resident of Mohalla Shrikrishna
Nagar, P.S. Begusarai, District Begusarai
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

(In both the appeals)
For the Appellant/s : Mr. Ranjan Kumar Jha with
Mr. Chaudhary Prem Kr. Thakur, Advocates
For the State : Mr. Bipin Kumar, APP
(In CR. APP (SJ) No.98 of 2003)
: Mr. Binod Bihari Singh, APP
(In Cr.App(SJ) No. 91 of 2003)
For the Informant : Mr. Rai Mukesh Sharma, Advocate

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 09-04-2018

Since both the appeals arise out of the common judgment

and order, they have been taken up together and are being disposed of

by this common judgment.

2. Appellants Chandrakant Jha, Sita Devi in Cr.Appeal (SJ)

No. 91 of 20013 and appellant Sanjay Kumar Jha in Cr.Appeal (SJ)

No. 98 of 2003 have been convicted under Section 304B of the Indian
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

2/11

Penal Code and sentenced to undergo rigorous imprisonment for ten

years vide judgment dated 4.2.2003 and order dated 5.2.2003 passed

by Sri S.M.I.I.F. Alam, the then Presiding Officer, Additional Court-I,

F.T.C., Begusarai in Sessions Trial No. 124 of 1994.

3. Prosecution case as per written report of Shakuntala

Mishra (PW 6), mother of the deceased Anita lodged at the Town

Police Station, Begusarai on 13.8.1993 at 6 P.M. is that her daughter

Anita was married with appellant Sanjay Kumar Jha in the year 1988

and she went to her “sasural” after seven days of her marriage. It is

alleged that her daughter was ill-treated in her sasural by her in-laws

as demand was made for refrigerator, motorcycle, V.C.P., etc. and

when the demand was not fulfilled she was subjected to cruelty.

Further prosecution case is that in the month of June, 1991 her

daughter came to her “Naiher” and complained about the ill-treatment

meted to her by her husband and in-laws and thereafter on the

intervention of informant’s husband and some respected persons a

Panchayati was held and in Panchayati accused appellants accepted

her daughter Anita for keeping her with them on the condition that no

person from her parents’ side will meet her. It is further alleged that

on 12.8.1992 at 11.30 P.M. accused appellant Chandrakant Jha went

to the informant’s village by his car bearing No. BRQ 410 and asked

about Anita’s presence and informed that she was traceless from the

house since 7 P.M. and thereafter appellant Chandrakant Jha went
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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away. Further prosecution case is that the informant and her family

members started searching Anita and in course of search they went to

the house of Chandrakant Jha but Anita could not be traced out. It is

alleged that on 13.8.1993 the informant met with the Dy.S.P. and

enquired about her daughter and only then she could know that a dead

body was found lying on a railway track and was sent to the hospital.

The informant along with her relatives went to the hospital and found

the dead body of her daughter Anita. It was alleged that the accused

appellants killed her and threw her dead body to the railway track for

want of dowry.

4. Earlier an U.D. case No.5 of 1993 was registered for the

same offence on 13.8.1993 before Rail police on the information

given by one Dasrath that a dead body of a woman was found near

Gate No. 45-46. However, on the basis of above written report

Begusarai P.S.Case No. 323 of 1993 was registered under Sections

302, 201/34 and 498A of the IPC.

5. Post investigation charge sheet was submitted, cognizance

of the offence was taken and after commitment the case ultimately

traveled to the file of learned Trial Judge for trial and disposal.

6. During trial, charges were framed earlier under Sections

498A and 306 IPC but later on charge under Section 304B read with

Section 34 IPC was framed.

7. During trial prosecution has examined the following
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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witnesses in order to establish its case, they are PW 1 Govind Mishra,

uncle of deceased, PW 2 Kamdeo Mishra, uncle of deceased, PW 3

Dharmendra Mishra, brother of deceased, PW 4 Dhirendra Mishra,

brother of deceased, PW 5 Gopal Mishra, cousin of the deceased, PW

6 Shakuntala Mishra, informant and mother of deceased, PW 7

Ramjee Mishra, PW 8 Shymdeo Mishra, father of deceased, PW 8A

Jaidev Mishra, PW 9 Shakti Kr. Verma, I.O., PW 10 Ramshankar

Singh, I.O., PW 11, Dr. Birendra Singh, who held post mortem

examination on the body of deceased.

8. Apart from that, the following documents have been

brought on record on behalf of prosecution as exhibits, they are Exts.

1 to 1/ 4- signatures of Dhirendra Mishra, Shyamdeo Mishra, Gopal

Mishra, Ramlji Mishra and Jaidev Mishra on the fardbeyan. Ext.2-

written report, Exts. 3 to 3/2- letters purported to have written by

deceased dated 8.4.1990, 22.6.1990 and 9.1.1991, Exts. 1/5 1/6-

signatures of Shakuntala Devi on the protest petition and power, Exts.

4 to 4/1- signatures on FIR, Ext.5- inquest report and Ext.6- post

mortem report.

9. On behalf of defence also five witnesses have been

examined, they are DW 1 Josef Rajendera, DW 2 Shyamnandan

Singh, DW 3 Janardan Singh, DW 4 Krishn Chandra Singh and DW 5

Satya Nr. Singh, who have been examined on the point that deceased

Anita had cordial relationship with her husband and in-laws. That
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apart, the defence has produced some letters written by deceased

Anita to her husband in order to show that there was good conjugal

life between the husband and wife.

10. After conclusion of trial learned trial court has acquitted

the appellants from the charge under Section 306 IPC but convicted

them under Section 304B IPC, as such found the charge under Section

498A IPC as redundant and appellants have been sentenced as stated

above.

11. Learned counsel for the appellants has assailed the

impugned judgment on the ground that though witnesses have stated

about demand of dowry and subjected her to cruelty but the evidence

of PWs 1, 2, 3, 4 and 5, if considered with the evidence of I.O. it

appears that they have not stated about the demand of dowry and

cruelty before the police and so far PW 6 is concerned, she has also

not stated about demand of dowry and similarly PWs 7 and 8 have

also not supported the demand of dowry and cruelty by the accused

persons and PW 9 has not been examined by the police and as such

there is absolutely no legal evidence available on record to show that

soon before her death there was demand of dowry and she was

subjected to cruelty for that. It has also been submitted that the

evidence of PW 8 in paragraphs 13 and 15 disclosed that he has

admitted that there was good relationship between the deceased and

her in-laws members and evidence of PW 2 shows that deceased was
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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in her sasural before her death and evidence also disclosed that the

information was given to her parents after her being traceless from the

house and all these facts clearly show that allegation of demand of

dowry or torture is false and concocted and, as a matter of fact, she

fled away from the house and committed suicide in the railway track.

It has also been submitted that if allegation of demand of dowry is

accepted there is absolutely no evidence that she was subjected to

torture because of demand of dowry soon before her death as

according to prosecution, a Panchayati was held in 1991 and she

remained in her sasural and thereafter there is no evidence to show

that there was demand of dowry. Learned trial court has not

considered this aspect of the matter and convicted the appellants under

Section 304B IPC which is not sustainable in the eye of law.

12. Learned counsel for the appellants has relied upon a

decision of Hon’ble Apex Court in the case of Rajeev Kumar vs.

State of Haryana : (2013) 16 SCC 640 in support of his contention

that there was no evidence at all that soon before her death there was

demand of dowry or she was subjected to cruelty as ingredient of

Section 304B IPC is that soon before death of deceased woman she

was subjected to cruelty or harassment for or in connection with

demand for dowry and burden is upon the prosecution to prove this

essential ingredient beyond reasonable doubt and the same has not

been fulfilled in this case, as such no presumption will be there
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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against the appellants.

13. On the other hand, learned counsel for the State and

informant submit that letters of the deceased,i.e., Exts 3 to 3/3 as well

as evidence show that she was subjected to torture with respect to

demand of motorcycle, refrigerator, V.C.P., etc. and for that

Panchayati was held and after Panchayati being held she was not

allowed to meet her family members, as such, cruelty was meted to

her and conviction of appellants under Section 304B IPC is just and

proper and does not require any interference by this Court.

14. On a consideration of the evidence it appears that PW 6

is the informant in this case and she has supported the prosecution

case regarding demand of motorcycle, refrigerator, V.C.R., etc. and

for that she was subjected to cruelty. Her evidence further shows that

she came back to her “maike” and with the intervention of her well

wishers a Panchayati was held and in Panchayati it was decided not to

allow her to meet her family members. However, if evidence of this

witness is considered along with the evidence of I.O. in paragraph 31

it appears that she has not stated before police about the demand. It

further appears that other witnesses have also supported the

prosecution case as stated in the FIR as well as in the evidence of PW

6 but if the evidence of PW 1 is considered along with the evidence of

I.O. it appears that he has not stated before police about the demand of

dowry and similarly if evidence of PWs. 3, 4, 5, 7 and 8 is considered
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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along with the evidence of I.O. in paragraphs 5, 11, 12, 14 and 15

respectively it will appear that story of demand of dowry does not

appear to be free from reasonable doubt and they have not stated

before the I.O. about the demand of dowry. From the evidence of PW

8A it appears that he was not examined by police and PWs. 9 and 10

are the I.Os. PW 11 is the Doctor who has conducted post mortem

examination from his evidence it appears that he has conducted post

mortem on 13.8.1993 and found the injuries on head, right leg and left

arm on the person of deceased and the opinion of the Doctor was that

injury could be caused by push of a hard substance and death was

caused by brain injuries, shock and hemorrhage.

15. Apart from that, on perusal of the entire evidence it

appears that prosecution case is that she was subjected to cruelty in

1991 and for that a Panchayati was held and after two years of the

said Panchayati in 1993 her dead body was recovered from the

railway track and for that an U.D. case was lodged and the evidence

shows that Panchayati was held in 1991 and in Panchayati it was

decided that people of her family would not be allowed to meet her.

On close scrutiny of evidence it does not appears that any iota of

evidence to show that there was demand of dowry after Panchayati or

she was subjected to cruelty soon before her death, rather evidence

shows that she had fled away from the house and her dead body was

recovered from the railway track.

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16. In this case, learned trial court has convicted the

appellants under Section 304B IPC on the ground that prosecution has

established its case that death was under abnormal circumstances

caused within seven years of marriage, she was subjected to cruelty

and harassment in connection with demand of dowry.

17. In the present case it appears from perusal of evidence

that death was within seven years of marriage as marriage was

solemnized in the year 1988 and dead body was recovered in 1993

and it further appears that death was under abnormal circumstances

and dead body was recovered from the railway track. However, it

appears that in this case no evidence is available on record to show

that she was subjected to cruelty in connection with demand soon

before her death. It is true that no straight jacket formula can be

evolved for defining the word soon before her death and it has to be

determined by the court depending upon the facts and circumstances

of each case. However, it appears that there is absolutely no demand

of dowry after 1991 nor is there any evidence available on record to

show that she was subjected to cruelty to the proximity of time of her

death. Even the letters purportedly to have been written by deceased

(Exts. 3 to 3/3) were of the years 1990 and 1991. On the other hand,

the defence has brought on record a large number of letters (Exts. E

series) which show otherwise.

18. The decision cited by learned counsel for the appellants
Patna High Court CR. APP (SJ) No.91 of 2003 dt.09-04-2018

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in Rajeev Kumar’s case (supra) is on the point that evidence should

be that soon after demand or being subjected to cruelty she died. In

the said decision Hon’ble Supreme Court has held in paragraph-18 of

the judgment as follows :

“18. From the aforesaid evidence of PW 5, it is clear
that the marriage between the appellant and the
deceased took place on 28.1.1989 and the demand of
dowry by the appellant and the beatings for more
dowry was after the marriage. PW 5 has also stated
that on 19.2.1991 the deceased came to him at
Kartarpur and told him that two days prior to
19.2.1991, the appellant gave her merciless beating.
PW 5 has, however, not stated that the beating that
the appellant gave to the deceased on 19.2.1991 was
in connection with demand of dowry. One of the
essential ingredients of the offence of dowry death
under
Section 304B IPC is that the accused must
have subjected a woman to cruelty in connection
with demand of dowry soon before her death and this
ingredient has to be proved by the prosecution
beyond reasonable doubt and only then the court will
presume that the accused has committed the offence
of dowry death under
Section 113B of the Evidence
Act. As this ingredient of
Section 304B IPC has not
been established by the prosecution, the trial court
and the High Court were not correct in holding the
appellant guilty of the offence of dowry death under
Section 304B IPC.”

19. From perusal of the aforesaid decision of Hon’ble

Supreme Court it appears that one of the essential ingredients of the

offence of dowry death under Section 304B IPC is that the accused

must have subjected a woman to cruelty in connection with demand of

dowry soon before her death and the same has to be proved by

prosecution itself beyond all reasonable doubts but in this case

prosecution has not able to prove the essential ingredient that
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deceased was subjected to cruelty in connection with demand of

dowry soon before her death and there shall not be any presumption

under Section 113B of the Evidence Act that accused appellants have

committed the offence of dowry death, as such, the conviction of the

appellants under Section 304B IPC appears to be not sustainable in

the eye of law.

20. Accordingly, both the appeals are allowed. The

impugned judgment and order are set aside. As the appellants are on

bail, they are directed to be discharged from the liabilities of their bail

bonds.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 12.4.2018
Transmission 12.4.2018
Date

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