Munna Yadav vs State Of Jharkhand

Heard Mr. A.K.Chaturvedy, learned counsel for the appellant and Ms. Priya Shrestha, learned A.P. P., appearing for the State.

This appeal is directed against the judgment of conviction dated 28.02.2006 and order of sentence dated 01.03.2006 passed by Sri Vishwanath Sahu,

Ist Additional Sessions Judge, Chatra in Sessions Trial No. 16/2003 whereby and whereunder the appellant has been sentenced to undergo R.I. for

seven years for the offence u/s 304 B/34 of the IPC.

Simariya P.S. Case No.66/2002 (G.R. No.568/2002) has been registered on 06.09.2002 under Section 304B/34 of the IPC on a typed report submitted

by the informant-Keshar Yadav (P.W.4). As per allegation, the deceased, namely, Kanti Devi daughter of the informant was married to the accused

in the year 1999 as per Hindu rites. Marriage gift has been given by the father of the deceased but still they demanded cycle, two she-buffalo and a

sum of Rs.5,000/-, on non-fulfillment of the said demand, she has been harassed and finally she has been killed. Informant has received information

that her daughter has been killed and thrown in the dam. On receiving such information, he rushed to the dam known as Chadram Dam where he saw

the dead body of the deceased-Kanti Devi lying on a cot. Allegation has been made that his daughter has been killed either by administering poison or

by adopting other methods and body has been thrown in the dam. As per statement of the informant, he saw the dead body of his daughter. It has

been claimed that stomach was not swollen and blood was oozing from her nose.

On the basis of above F.I.R., investigation has been completed and the appellant has been charged under the above Sections. Thereafter, cognizance

has been taken. Case has been committed to the court of sessions and ultimately, charge has been framed under Section 304B/34 of the IPC to which

appellant pleaded not guilty and claimed to be tried.

To substantiate the prosecution story altogether fourteen witnesses have been examined.

P.W-1, Amrit Yadav-uncle of the informant, P.W.-2, Biraj Yadav maternal uncle of the deceased, P.W.-3, Gobardhan Yadav son of Rango Yadav,

P.W.-4, Keshar Yadav the informant (father of the deceased) and P.W.-5, Shankar Yadav have supported the version as disclosed in the F.I.R.

P.W.-6, Tej Narayan Yadav, P.W.-7, Amir Yadav, P.W.-8, Sahdeo Yadav, P.W.-9, Tuleshwar Yadav and P.W.-12, Dhaneshwar Yadav have been

declared hostile by the prosecution.

P.W.-10, Gowardhan Yadav @ Ganauri Yadav-uncle of the deceased and P.W.-11 Arjun Yadav is the co-villager, but they have not supported the

incident although not declared hostile.

P.W.-13, Ravindra Tiwary, Pharmacist, Sadar Hospital, Chatra has produced the carbon copy of the post mortem report which has been marked as

Ext.1.

P.W.-14, Ganesh Choudhary court constable is a formal witness, who has proved the inquest report which has been marked as Ext.-2.

It has been argued by learned counsel for the appellant that the cause of death has not been proved by producing any evidence. Even I.O. and the

Medical Officer have not been examined. Neither post mortem report has been brought on record nor proved by anybody.

Learned counsel for the appellant has relied upon the para-10 of the judgment reported in 2006 (1) East Cr. Case 324 (Jhr) in the case of Tufani

Bhuiyan & Ors. vrs. State of Jharkhand, which is quoted hereinbelow:

The prosecution wanted to establish that Kishun Bhuiyan died on account of homicidal violence but miserably failed to establish the said

fact. The prosecution did not even attempt to examine the doctor nor did it produce the post mortem certificate issued by the doctor who

conducted post mortem over the dead body. It is unfortunate that the prosecution failed in its duty in not examining the doctor and marking

the post Mortem certificate as exhibit. We are at a loss to find as to why the prosecution did not examine the doctor who conducted autopsy

and issued certificate. Though sub-section (4) of Section 293, Cr. P. C. contemplates that the document issued by the Government Scientific

experts enumerated under sub-section (4) need not be examined and the documents can be marked it does not contemplate producing of the

post mortem certificate without examining the doctor. Section 294, Cr. P. C. though states that where any document is filed before any Court

by the prosecution, it can be marked if the other side has no objection in its marking, but with a further rider under sub-section (2) of

Section 294, Cr. P. C. that the document which is to be marked without formal proof, can be marked but only through the prescribed form

prescribed by the State. In this case the prosecution did not even produce the document i. e. post mortem examination report, nor did it

examine the doctor. Therefore, there is no evidence on record to show that Kishun bhuiyan died on account of homicidal violence. In the

absence of any medical evidence, we are unable to hold that the prosecution has proved its case under Section 323 and 324, I. P. C. There

is nothing on record to prove that Kishun bhuiyan died on account of homicidal violence and that p. Ws. 2 and 3 suffered injury. We

therefore hold that the prosecution has miserably failed to establish the charge of murder as well as the charges under Sections 323 and

324, I. P. C.

Further, learned counsel for the appellant has relied upon the judgment reported in 2006 (2) East Criminal Cases 99 (Jhr). Relevant para-9 of the said

judgment is quoted hereinbelow:-

A perusal of Section 60 of the Evidence Act shows that in all cases wherever it refers to an opinion or to the grounds on which that opinion

is held, it must be the evidence of the person who holds that opinion on this ground and the prosecution having not examined the doctor and

not giving an opportunity to the accused to cross-examine him, cannot reply upon the evidence of PW 11 and mark Ext.5, the post mortem

certificate through him. It is needless to mention that the doctor who conducted autopsy and expressed opinion in the post mortem

certificate, was not examined and therefore the compounder, PW.11, is not a competent witness to speak about the cause of death; more so

when he has admitted in his cross-examination that he was not present at the time of post mortem and that he also did not know about the

opinion expressed by the doctor who conducted autopsy. At this stage we wish to make an useful reference to Section 293, Cr. P.C. which

contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the Section applies,

upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as

evidence in any inquiry, trial or other proceeding. Sub-section (4) of Section 293 classifies the reports of the Scientific Experts. Post-mortem

report is not one of those documents which falls under subsection (4) of Section 293, Cr. P.C.

Submission has been advanced that the cause of death has not been proved by producing medical evidence and as such the important ingredients of

Section 304B of the IPC has not been proved and the conviction of the appellant under Section 304B of the IPC is not sustainable. Necessary

ingredient of Section 304B is that the death must be unnatural within seven years of marriage. The accidental death is not covered under Section 304B

of the IPC.

It has been further argued that even the F.I.R. has not been brought on record and non examination of I.O. has caused serious prejudiced to the

appellant. The entire trial is against the concept of fair trial.

On the other hand, learned A.P.P. has supported the judgment of conviction and argued that there is specific allegation of demand of dowry which has

been supported by P.W.-1 to P.W.-5. Further death is unnatural as her dead body was found in the dam. Thus the ingredient of Section 304B of the

IPC is made out and is proved and as such no interference is required from the Appellate Court.

Heard learned counsel for the parties.

From perusal of record and the evidence, it appears that marriage has taken place in the year 1999. Death of the victim lady is between 04.09.2002 to

06.09.2002. The cause of death has been unearthed by the court below by relying upon the carbon copy of the post mortem report (Ext.1) and the

inquest report. Both inquest report and carbon copy of the post mortem report suggest that the death was due to drowning. Further evidence has come

that the place is used for washing cloth and there is chance of accidental fall and death. The factum of accidental death has not been negated by

bringing on record any evidence.

It is true that in the case of unnatural death within seven years of marriage, presumption lies against the accused relying upon Section 113B of the

Indian Evidence Act. It is trite that the presumption only can be raised if the prosecution has done its part and it has been proved that there is a

demand of dowry and death is unnatural and not accidental. In the present case even if inadmissible evidence is considered the cause of death was

due to drowning, but whether it is natural or she has been pushed to the dam has not been proved.

Further in the present case, post mortem report has not been proved either by producing original copy of the post mortem or by examining Medical

Officer. As per the mandate of Section 294 (II) of the Cr.P.C, the prosecution cannot take benefit of Section 294 (2) of the Cr.P.C. Thus, in the

present case, the prosecution has failed to prove prima facie that the death is not accidental rather homicidal and in absence of such proof, conviction

under Section 304B of the IPC is not sustainable by raising presumption against the appellant.

In view of above discussion and considering the materials available on record the appellant is discharged from the charged offence under Section

304B/34 of the IPC.

Accordingly, the judgment of conviction dated 28.02.2006 and order of sentence dated 01.03.2006 passed by Sri Vishwanath Sahu, 1st Additional

Sessions Judge, Chatra in Sessions Trial No. 16/2003 is set aside. The appeal stands allowed.

Since the appellant is already on bail, he is discharged from the liability of his bail bonds.