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Cr. Revision No. 908 of 2007
(Against the judgment dated 28th August, 2007 passed by the
learned Sessions Judge, Giridih in Sessions Trial No.387/2005)
Md. Asin @ Md. Yasin. ... ... ... ... ...Petitioner
Versus
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The State of Jharkhand.
2. Md. Safdar @ Mustakim.
3. Md. Habib.
4. Md. Abbas. … … … … …Opp. Parties
For the Petitioner: Mr. Vishal Kumar Trivedi, Advocate.
For the State: Mr. T.N.Verma, A.P.P.
For the O.P.No.2: Mr. A.K.Sahani, Advocate.
Mr. Ajit Kumar, Advocate.
P R E S E N T
CORAM: HON’BLE MRS. JUSTICE POONAM SRIVASTAV
HON’BLE MR. JUSTICE D.N.UPADHYAY
Poonam Srivastav
D.N.Upadhyay,JJ. The instant revision against the acquittal is received
after remand by the Apex Court in Criminal Appeal No.51 of 2009,
arising out of S.L.P.(Cri.) No.5185/2008 Md. Safdar @ Mastakin &
Ors. Vs. State of Jharkhand & Anr to this Court.
2. A Division Bench of this Court allowed the revision and
remanded the matter to the Trial Court for a fresh decision vide
judgment dated 29th April, 2008, which was challenged before the
Apex Court. The Apex Court was of the view that the judgment
allowing the revision was cryptic and sketchy and is devoid of proper
reasons and, therefore, the said judgment was set aside.
3. We have received the record after remission from the
Hon’ble Supreme Court.
4. Heard the Counsel appearing on behalf of the revisionist
i.e. the first informant of the S.T.No.387/2005, arising out of
Dhanwar P.S. Case No. 190/2004 (G.R.No.2227/2004).
5. The Sessions Trial proceeded against three accused
under Section 498A/34 and 304B/34 Indian Penal Code. The learned
Sessions Judge had granted a clear acquittal coming to a conclusion
that from the evidence a case of dowry death is not substantiated
and, therefore, it cannot be said that the deceased was subjected to
cruelty and tortured by inlaws for demand of dowry and she died an
unnatural death within seven years of her marriage.
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6. We have examined the judgment impugned as well as
the record of the trial court. Evidently the death has taken place
within seven years of marriage. The incident took place after five
years and, therefore, the period to presume that the deceased met an
unnatural death within seven years of marriage is in existence.
7. The second requirement to constitute a dowry death is
demand of dowry. The allegation of cruelty and demand of dowry is
made in the F.I.R. itself. A number of witnesses of fact were
examined, namely, P.W. 1 (Samid Ali), P.W. 2 (Rubia Khatoon), P.W. 3
( Diljan Ansari), P.W. 4 (Md. Saddique) and P.W. 5 (Md. Asin), who is
the first informant. Though the witnesses of fact have stated that this
was a ‘Golat’ marriage and there was no demand of dowry at the time
of marriage but these witnesses have unequivocally stated that
subsequent to the marriage, there was a consistent demand of T.V.
and Motorcycle. No doubt P.Ws. 1,2 & 3 have been declared hostile
but P.W. 4, who is a resident of the same village where the ‘Maika’ of
the deceased was situated and P.Ws. 7 & 8 are the brothers of the first
informant. They have squarely supported the contention that there
was demand of dowry and the deceased used to tell her family
members that she is illtreated on account of nonfulfillment of
demand of dowry. She was subjected to cruelty as well. P.W. 4 who
resides in the same village, where the first informant resides, has
stated in paragraph 5 of his statement during trial that 5 or 6 days
prior to death, the deceased had visited her ‘Maika’ and informed
them about the illtreatment for nonfulfillment of demand of dowry
and that she was subjected to cruelty.
8. We have perused their statements and it appears that
there was a demand of dowry. Last but not the least when the family
members and the villagers visited the house of the accused, they
found the dead body of Nasima Khatoon lying on the floor and froth
was coming out from her mouth. It was a clear indication that it was
not a case of natural death, besides there were injuries found on her
body. However, we are not inclined to give our opinion on merit and
assessment of evidence, since we are of the opinion that the order of
acquittal was not justified and it calls for a fresh assessment of
evidence and a new verdict. The learned Judge should have taken
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into consideration that mere existence of three aspects that there was
demand of dowry as a result whereof death occurred within seven
years of marriage and death appears to be apparently unnatural
immediately the onus shifted on the shoulder of the accused to
substantiate that it was a natural death and there was no demand
of dowry in view of presumption drawn against the accused under
Section 113B of the Evidence Act. The learned Sessions Judge
committed an error while deciding the trial as any other regular trial,
where a burden lies on the shoulder of the prosecution to
substantiate its case beyond any reasonable doubt, which is not to be
done in a case of “Dowry Death”.
9. It is made clear that we are not expressing any opinion
on merit or assessment of the evidence. We only remit the case to the
trial court for retrial and for recording evidence, if it is necessary in
the light of Section 113B Evidence Act. It is also made clear that in
view of Section 113B the accused should be given an opportunity to
discharge its onus since there is presumption against them. The case
is remitted to the court of sessions. In the event the Sessions Judge is
not available, the District Judge shall mark the case to any other
Court having equivalent jurisdiction.
10. With these observations, the revision is allowed.
[Poonam Srivastav,J.]
[D.N.Upadhyay,J.]
Jharkhand High Court, Ranchi
Dated 21st September, 2011
P.K.S./N.A.F.R.