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2000 DIGILAW 234 (PAT)

Digeshwar Rana v. State Of Bihar

2000-02-11

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. This appeal is directed against the judgment of conviction and order of sentence, passed by Shri Sudarshan Upadhaya, Addl. Sessions Judge, Chatra in S.T. No. 10/93, whereby and whereunder, the learned Sessions Judge convicted the appellants for the offences under Sections 498-A and 304-B of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of ten years each. 2. One Juglal Rana submitted a written report before the police alleging therein that his daughter Guli Devi was married with Digeshwar Rana (appellant No. 1) in the year 1985 and there was no demand of dowry at the time of marriage. But, after marriage, the appellants started demanding a sum of Rs. 2,000/-as dowry, failing which they will kill the deceased. It is further alleged that on 6.1.1992, one Nirmal Rana informed him that his daughter, Guli Devi is missing from her house. On this information, the informant went to the village/sasural and came to know that the dead body of his daughter was floating in the well of Kisun Rana. It is claimed that all the appellants threw the dead body of his daughter in the well after committing murder. On the basis of the said written report, (the FIR) was lodged against all the appellants for the offences under Sections 498-A and 304-B, IPC. The police investigated into the case and submitted the charge-sheet against all the appellants. 3. All the appellants appeared in the lower Court and the charges under Sections 498-A and 304-B, IPC were framed against them to which they pleaded not guilty. 4. The witnesses have been examined in the lower Court. After considering the evidence on record, the learned trial Court convicted and sentenced the appellants in the manner as stated above. 5. Not being satisfied with the judgment of conviction and sentence, the appellants preferred this appeal on the grounds that the learned trial Court has committed error in convicting the appellants as there was no eye-witness to the occurrence. It is further claimed that the Investigating Officer has not been examined to contradict the statement of the witnesses. It is further claimed that the story demand of Rs. 2,000/- has been concocted after-thought as there was no cogent evidence on this score, and as such, the impugned judgment is fit to be set aside. 6. There is allegation in the written report (Ext. It is further claimed that the story demand of Rs. 2,000/- has been concocted after-thought as there was no cogent evidence on this score, and as such, the impugned judgment is fit to be set aside. 6. There is allegation in the written report (Ext. 2) which was submitted by the informant himself that marriage took place as back as in the year 1985 and there was no demand of dowry made at the time of marriage, but it is alleged that all the appellants started demanding a sum of Rs. 2,000/-. It is further alleged that on 6.1.1992, he came to know that his daughter is missing and when he reached the sasural of his daughter, he found his daughter lying in a well. 7. The Doctor, PW 1 claimed to have examined the deceased and found the following ante-mortem injuries on her person : 1. Left upper lips of mouth was partially lacerated size 2" x 1 /4". 2. Ecchymosis and swelling over right cheek area 3" x 2-1/2". According to the Doctor, the cause of death is due to asphyxia resulting from drowning in water. Visceras were kept preserved for chemical examination. He further stated in his cross-examination that he did not receive examination report of viscera. The injuries found on the dead body may be caused even by fall on hard substance. 8. PW 2 is the cousin brother of the deceased. According to him, the appellants started demanding a sum of Rs. 2,000/- from his sister, who had demanded the said amount from her father. He further admitted that he had written the said written report (Ext. 2) at the instance of his uncle, Juglal Rana, who put his LTI. He admitted in his cross-examination that they had come to know about the demand of dowry for the first time about five years ago, but he cannot say about the actual date of the said demand. 9. PW 3 is also the brother of the deceased. According to him, the appellants were demanding a sum of Rs. 2,000/- as dowry. He further stated that on 6.1.1992, one Nirmal Rana informed that his sister is missing and when he, along with others, rushed to the sasural of his sister then he found Guli Devi lying in a well. PW 3 is also the brother of the deceased. According to him, the appellants were demanding a sum of Rs. 2,000/- as dowry. He further stated that on 6.1.1992, one Nirmal Rana informed that his sister is missing and when he, along with others, rushed to the sasural of his sister then he found Guli Devi lying in a well. He stated in his cross-examination that he came to know about the demand of dowry about six months ago. There was also panchayati held and the appellants were made to understand. 10. PW 4 is the witness of the inquest-report. He denied about any dispute with the deceased and the appellant. He has been declared hostile by the prosecution. He further stated that Dhaneshwar Rana (appellant No. 2) is residing separately. 11. PW 5 is also the witness of the inquest-report. According to him, Digeshwar Rana (appellant No. 1) was not present at the time of occurrence. He further stated that the appellants never demanded a sum of Rs. 2,000/- as dowry from Guli Devi. 12. PWs 6 and 7 are the formal witnesses. PW 8 is also the brother of the deceased. He stated that his sister had narrated that she was subjected to torture by the appellants. He admitted in his cross-examination clearly that there was no demand of dowry at the time of marriage. His sister used to complain against the appellants whenever she comes to her naihar. He denied the fact that his sister was mentally disturbed due to the fact that she did not give birth to any child. PW 9 has been tendered by the prosecution. 13. PW 10 is the informant. According to him, his daughter was married with Digeshwar Rana about 8/9 years ago. He further stated that there was no demand of dowry at the time of marriage, but later on the appellants started demanding a sum of Rs. 2,000/-as dowry and his daughter was assaulted and tortured due to non-fulfilment of the dowry and she was thrown into the well after murder. But, he admitted in his cross-examination that his daughter, Guli Devi, had no any issue. He further admitted in paragraph 11 that the appellants never demanded any dowry from him but his daughter used to say about the demand of dowry. But, he admitted in his cross-examination that his daughter, Guli Devi, had no any issue. He further admitted in paragraph 11 that the appellants never demanded any dowry from him but his daughter used to say about the demand of dowry. He also admitted in paragraph 17 of his cross-examination that he had not seen the appellants assaulting his daughter at any point of time. 14. PW 11 is the mother of the deceased. She stated that the appellants were demanding a sum of Rs. 2,000/- as dowry and due to non-fulfilment of the dowry, they assaulted her daughter. But, she admitted in clear terms in paragraph 4 of her cross-examination that her daughter (deceased) used to narrate about the fact of quarrel whenever she comes to her naihar. She also admitted in her cross-examination that she had not complained to the villagers or the police in respect of demand of dowry. 15. No other witness has been examined and as such the appellants were examined under Section 313, Cr PC and they have denied the allegation. It is evident that the witnesses have not supported the story that the appellants had actually demanded a sum of Rs. 2,000/- at any point of time in their presence. Even the informant, PW 10, the father and PW 11, the mother of the deceased, admitted that the appellants had never demanded money as dowry from them, rather this fact was narrated by the deceased whenever she comes to her naihar. Thus, it is clear that there is no cogent evidence coming forward to support about the demand of dowry in the manner, as alleged in the FIR. PW 10, the informant also admitted to the extent that the appellants had never assaulted the deceased in his presence. It is an admitted position that there is no eye-witness of the occurrence that the appellants had thrown the deceased, namely, Guli Devi, into the well. The Doctor, who conducted the post-mortem report opined about the cause of death due to asphyxia resulting from drowning in the water. The injury caused to the deceased may be caused even by fall on hard substance which cannot be said to be sufficient to cause the death as the said two injuries are superficial. 16. The Doctor, who conducted the post-mortem report opined about the cause of death due to asphyxia resulting from drowning in the water. The injury caused to the deceased may be caused even by fall on hard substance which cannot be said to be sufficient to cause the death as the said two injuries are superficial. 16. The learned counsel appearing for the appellants, submitted at the very outset that there is no eye-witness of the occurrence and there is no cogent evidence to show that the demand of dowry was ever made by the appellants. It is further submitted that there is no evidence on the record that soon before her death, she was subjected to cruelty or harassment by the appellants which is essential to attract Section 304-B, IPC. It is further argued that none of the villagers/witnesses supported the prosecution case about the torture or demand of dowry at any point of time by the appellants and, as such, the learned Sessions Judge committed error in convicting the appellants. It is also argued that the victim, Guli Devi, was mentally disturbed due to the fact that she had no anyissue, as a result of which, she committed suicide. The submissions of the learned counsel are sustainable in view of the evidence on the record. 17. In order to attract the offence under Section 304-B, IPC, the essential ingredients are as follows : (i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death. (iv) Such cruelty or harassment should be for or in connection with demand for dowry. 18. It is evident that there is no material to show that the deceased was subjected to cruelty or harassment soon before her death. It is also clear from the evidence on record that no any demand was ever made by the appellants, either from the PW 10, father, or from PW 11, the mother of the deceased. It has been specifically mentioned in the written report (Ext. It is also clear from the evidence on record that no any demand was ever made by the appellants, either from the PW 10, father, or from PW 11, the mother of the deceased. It has been specifically mentioned in the written report (Ext. 2) on the basis of which the FIR was registered that there was no demand of dowry at the time of marriage which took place as back as in the year 1985. From the evidence of the Doctor, it is clear that the visceras were preserved for the chemical examination, but no any such report is attached with the record, nor any evidence has been adduced on this score. Thus, the cause of death is only due to asphyxia by drowning and there is no direct or definite evidence that the appellants had pushed or thrown the deceased into the well. The suspicion, which may be strong, cannot take the shape of positive evidence. Marriage took place in the year 1985 and there was no issue for which the deceased might be suffering from mental agony and as a result, she might have committed suicide, which cannot be ruled out. 19. Coming to the question whether Section 498-A, IPC is made out in the instant case, as the appellants have also been convicted thereunder. It is apparent that none of the witnesses, including the father of the deceased, supported the case about the demand of dowry, rather all the witnesses, being the relatives, stated that it was the victim, who had narrated about the demand of dowry. But, apparently there was no demand of dowry at the time of marriage which took place as back as in the year 1985. Thus, it is established that there is no authenticity about the demand of dowry and the said allegation has not been established, as required under the law. Non-examination of Investigating Officer further causes prejudice to the case of defence as vital contradiction could not be ascertained. Findings of the Doctor about the cause of death due to asphyxia resulting from drowning in water wholly belied the prosecution case that the deceased, Guli Devi, was first murdered and then her dead body was thrown into the well. The informant, the father of the deceased was duly informed on 6.1.1992 that the deceased is missing. Findings of the Doctor about the cause of death due to asphyxia resulting from drowning in water wholly belied the prosecution case that the deceased, Guli Devi, was first murdered and then her dead body was thrown into the well. The informant, the father of the deceased was duly informed on 6.1.1992 that the deceased is missing. Had there been any mischief or ill-motive on the part or me appellants, there would have no need to inform them. Thus, the whole prosecution case is beset with suspicion which cannot take the shape of truth. 20. Having regard to the whole facts and circumstances of the case, coupled with the evidence on record, in my considered opinion, the prosecution has totally failed to establish the charges against the appellants beyond all reasonable doubts. Much suspicion about the cause of death arose as except suspicion there is no direct or definite evidence and for which the appellants are entitled for benefit of doubt. 21. In the result, I do not find the appellants guilty for the offence charged. Hence, I find that the learned Court below committed error in convicting the appellants for the offence charged. Accordingly, the appeal is allowed and the judgment of conviction and sentence, passed by the lower Court, is set aside. Therefore, all the appellants are acquitted and set at liberty. It appears that appellant No. 1, Digeshwar Rana is in custody, hence, he is ordered to be released forthwith, if not wanted in any other case. The appellant No. 2, Dhaneshwar Rana and appellant No. 3, Sugia Devi are on bail, hence, they are discharged from the liability of the bail-bonds.