Back
2013 Supreme(Jhk) 175
IN THE HIGH COURT JHARKHAND
D.N. PATEL, SHREE CHANDRASHEKHAR JJ.
Anil Kumar Tiwary @ Anil Tiwary - Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (DB) No. 98 of 2002
Decided on : 3-2-2013.
For the Appellant:M/s K.P. Deo, Rajesh Kumar, Ashish Kumar, Gourav, K.K. Mishra, Advocates
For the State: Mr. Shekhar Sinha, A.P.P.
Headnote:(A) Indian Penal Code, 1860-Sections 302 and 304-B---Dowry death---conviction--PWs also contradicted each other with respect to demand of dowry-allegation of murder not supported by most of the related witnesses in their deposition in the court-I.O. and doctor who conducted post-mortem not examined by prosecution-circumstances relied upon by prosecution not proved and there are ’serious infirmities in that circumstances-appellant convicted only on basis of suspicion-suspicion cannot take the place of proof-prosecution failed to prove beyond all reasonable doubts offences u/ss. 302 and 304-8 against appellant---conviction set aside. (Paras 27 to 41)
(1934)295 US 78-29; (1915)42 ILR Cal 422; (1954)110 CCC 263; 386 US 66 (1967); 446 US 620 (1980); (1976)2 NZLR 644; (1993)2 All ER 577(CA); (2010)1 SCC 775: 2010(1) JLJR (SC)150; (1994)4 SCC 602; (1991)1 SCC 212; JT 2013(2) SC 139; (1915) ILR 42 Cal. 422; AIR 1936 PC 289; AIR 1954 SC 51; AIR 1959 SC 484; (1971)2 SCC 42; (2005)13 SCC 624; (2012)4 SCC 722---Relied upon.
(1999)1 MLJ (Cri) 226; 1994 MPLJ 862; 2002 Cr. LJ 2367(MP); (2004) Cr. LJ 721(MP); (1970)O Kash. LJ 21---Assented to.
(B) Administration of Justice---if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine-he must become a participant in the trial by evincing intelligent, active interest by putting questions to the witness in order to ascertain the truth-principles reiterated. (Paras 68 to 80)
1957(2) QB 55; (2012)5 SCC 370; (2004)4 SCC 158; (1972)1 All ER 997; AIR 1981 SC 1036; (2010)10 SCC 677; (1999)3 SCC 614; (1974)4 SCC 186; (1981)3 SCC 11; (2003)7 SCC 749; (1999)6 SCC 110: 1999(2) PLJR (SC)81; (2006)3 SCC 374: 2006(3) JLJR (SC)96; (2010)6 SCC 430; (2010)2 SCC 114---Relied upon.
Shree Chandrashekhar, J.
1. The sole appellant has preferred this criminal appeal against the judgment of conviction and order of sentence dated 13.02.2002/14.02.2002 in Sessions Case No. 119 of 1987/369 of 2001 passed by the Sessions Judge, Jamtara. The appellant has been convicted for an offence under Section 302 I.P.C. and he has been found guilty for the alternate charge under Section 304(B) I.P.C. also. The appellant has been sentenced to undergo rigorous imprisonment for life. The charge for the offence under Section 4 of Dowry Prohibition Act has failed and the appellant has been acquitted of the said charge.
2. The prosecution case as disclosed in the fardbeyan of Lakshmi Narain Tiwary, who is the father of the deceased, is that his daughter Veena Devi was married to the accused Anil Tiwary in the year 1983. His daughter was blessed with a daughter about four months prior to the incident. On 18.02.1987, he had gone to the house of his daughter at village Kamaldih where in the night his daughter informed him that she was harassed for demand of dowry. He persuaded his daughter to stay there and came back on 19.02.1987. He used to plead with his soninlaw with folded hands that he is not capable of giving any dowry. On 21.02.1987, he heard a rumour that his daughter has been grievously injured in the previous night by her husband Anil Tiwary. He, on receiving such information proceeded to Kamaldih with his cousin, Surendra Nath Tiwary. They enquired about the incident from the villagers of the Kamaldih, who informed that at about 11.30 p.m. in the previous night, Anil Tiwary raised a hulla of “ChorChor”, however, when the villagers went to his house they did not find any sign of theft there. The villagers informed him that Anil Tiwary told them that her wife was assaulted by the thieves. He has further stated that the villagers informed him that they called the doctor and carried his daughter to Narainpur hospital. He, therefore, suspected that his soninlaw has killed his daughter for dowry.
3. On the basis of the fardbeyan of Lakshmi Narain Tiwary, the first information report being Narainpur P. S. Case No. 11 of 1987 was registered against the appellant Anil Tiwary. After the investigation, chargesheet was filed and cognizance of the offence was taken. Charges under Section 302 and alternatively under Section 304(B) I.P.C. and also under Section 4 of Dowry Prohibition Act were framed against the appellant. During the trial, the prosecution examined 10 witnesses and the fardbeyan of the informant, formal F.I.R, seizure list dated 21.02.1987 and seizure list dated 22.02.1987 were exhibited on behalf of the prosecution. Learned trial judge found the appellant guilty for the offence under Section 302 as well as under Section 304(B) I.P.C. and sentenced him to undergo R.I. for life. The learned trial judge held that nonexamination of the Investigating Officer and the Doctor, who held postmortem examination over the deadbody, has not caused any prejudice to the accused and the prosecution has been able to prove its case which is based on circumstantial evidence.
4. Heard counsel for the parties and perused the documents on record.
5. Learned counsel for the appellant has submitted that there is no eyewitness to the occurrence. The prosecution case is based on circumstantial evidences however, the chain of circumstances is not complete and there are several infirmities in the circumstances relied upon by the prosecution. The deposition of the witnesses suffers from contradictions, omissions, inconsistency, exaggeration and embellishments and merely on the basis of suspicion, the appellant has been convicted.
6. On the other hand, learned A.P.P. appearing for the State has supported the judgment of conviction and order of sentence passed against the appellant.
7. The prosecution has examined the informant Lakshmi Narain Tiwary as P.W 3, who has stated in the Court that his daughter was married to accused Anil Tiwary in
