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PATNA HIGH COURT
Ashwani Kumar Singh and Arvind Srivastava, JJ.
Ramashish Mahto – Appellant
versus
State of Bihar – Respondent
Criminal Appeal (DB) No.284 of 2015
Decided on 22.7.2021
(A) Criminal Procedure Code, 1973 – Section 235(2) – Indian Penal Code, 1960 – Sections 304-B and 498-A – Dowry death and cruelty – Life sentence – Once Trial Court had held appellant guilty for charges under Sections 304-B and 498-A of IPC, it was required to pass sentence for each of proved charges, or, at least it ought to have assigned reason as to why it was not passing sentence for a particular charge – Composite order of sentence for two proved charges without specifying charge for which sentence is being passed and without explaining as to how composite sentence would meet end of justice can not be said to be an order of sentence passed on an accused in accordance with law. (Para 8)
(B) Indian Penal Code, 1960 – Sections 304-B and 498-A – Indian Evidence Act,1872 – Section 113-B – Dowry death and cruelty – Life sentence – Prosecution has to rule out possibility of a natural or accidental death so as to bring within purview of death occurring otherwise than under normal circumstances – In case of forcible poisoning by use of any kind of poison, there would be struggle and resistance from victim and there would be some marks on her body – In present case, there was no mark of violence – Cause of death could not be ascertained in absence of viscera report – There is no evidence that deceased died due to poisoning – It was husband of deceased who informed informant on telephone first regarding her illness and requested him to come to see his ailing daughter – By the time, informant along with his wife, son and other persons reached matrimonial home of deceased, she was alive – At that time, husband of deceased and her parents were found present at their house – It is shrouded with mystery what happened to initial report made by informant – Discrepancy in evidence of investigating officer, fardbeyan and inquest report further creates doubt about authenticity and credibility of FIR – FIR has lost its credibility particularly because initial version has been suppressed from court – There is absolutely no evidence relating to poison in relation to deceased – Doctor, who treated deceased before her death at Primary Health Center, has not been examined during trial – Prosecution has failed to bring on record any paper relating to treatment provided to deceased at Primary Health Centre – Prosecution has miserably failed to establish fact that deceased died an unnatural death – In absence of fulfillment of essential ingredient of Section 304-B of IPC, conviction of appellant under Section 304-B of IPC cannot be upheld – Vague allegation regarding demand of dowry or subjecting deceased to cruelty is omnibus and general – On appreciation of evidence, Trial Court acquitted his father and mother of charges under Sections 304-B and 498-A of IPC – Since there was no distinction between case of appellant and that of other two acquitted accused persons, appellant acquitted of charges under Sections 304-B and 498-A of IPC. (Paras 47, 48, 57, 59, 60, 61,
63, 64, 67, 70 to 73)
Result: Appeal allowed.
JUDGMENT (ORAL)
Ashwani Kumar Singh, J.—Heard Mr. Gaurang Chatterjee, learned counsel for the appellant and Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor for the State.
2. This appeal is directed against the judgment of conviction dated 07.02.2015 and the consequent order of sentence dated 12.02.2015 passed by the learned Additional Sessions Judge-III, Aurangabad in Sessions Trial No. 275 of 2011/70 of 2014 by which he has convicted the appellant for the offences punishable under Sections 304-B and 498-A of the IPC (for short ‘IPC’) and sentenced him to undergo rigorous imprisonment for life.
3. Surprisingly, after convicting the appellant on charges under two heads, the Trial Court vide impugned order dated 12.02.2015, passed a composite sentence without specifying the offence for which it was sentencing the convict.
4. The operative part of the order dated 12.02.2015 passed by the Trial Court reads as under: -
“On perusal of the case record and taking into consideration the contention of both the parties, it appears that the case is of dowry death and the deceased is subjected to cruelty. Thus, considering all the facts and circumstances of the case, the convict, namely, Ramashish Mahto is hereby sentenced to undergo rigorous imprisonment for life. This will meet the end of justice.”
5. The Judicial process is a complex one, but, in general, once a person is charged, he goes on trial. The Trial Court hears the evidence presented against him by the prosecution as well as his own defence and after hearing the arguments on behalf of the prosecution and defence, it records its judgment of conviction or acquittal. After a conviction in criminal proceedings, sentencing is next.
6. Section 235(2) of Code of Criminal Procedure (for short ‘CrPC’) provides that if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
7. While examining the scope of Section 235(2) in Santa Singh v. State of Punjab since reported in AIR 1976 SC 2386, the Supreme Court observed:
“The court must, in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question arises. But if he is convicted, then the court has to “hear the accused on the question of sentence, and then pass sentence on him according to law”. When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence.”
8. Once the Trial Court had held the appellant guilty for the charges under Sections 304-B and 498-A of the IPC, it was required to pass sentence for each of the proved charges, or, at least it ought to have assigned reason as to why it was not passing sentence for a particular charge. A composite order of sentence for two proved charges without specifying the charge for which the sentence is being passed and without explaining as to how the composite sentence would meet the end of justice can not be said to be an order of sentence passed on an accused in accordance with law.
9. Coming back to the main issue at hand, the First Information Report (for short ‘the FIR’) giving rise to Session Trial No. 275 of 2011/70 of 2014 was instituted on the basis of fardbeyan of one Baij Nath Mahto (P.W.4), which was recorded by the Sub-Inspector of Police-cum-Officer-in-charge of Madanpur Police Station S.N. Singh (P.W.8) on 09.07.2010 at 08:00 PM in the Primary Health Centre, Madanpur.
10. In his fardbeyan, Baij Nath Mahto stated that his daughter Sweety Devi was married to the appellant in March, 2009. At the time of marriage, he had given gift to the appellant to the best of his capacity, but the appellant, his father and mother used to torture and assault his daughter for dowry quite often. He further stat
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