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2001 DIGILAW 722 (PAT)

Ras Bihari Jha v. State Of Bihar

2001-08-09

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. This appeal is directed against the judgment and order dated 21-7-2000 and 24-7-2000 passed by Shri Arun Kumar Singh. 1st Additional Sessions Judge, Banka in, Sessions Trial No. 95 of 1999 whereby and where-under he found and held the appellants guilty and convicted them under Sections 304-B. 498-A and 201 of the Indian Penal Code (hereinafter to be referred to as the Code) and sentenced them to undergo rigorous imprisonment for seven years each under Sec. 304-B, rigorous imprisonment for two years each under Sec. 498-A and rigorous imprisonment for one year each under Sec. 201 of the Code, the sentence having been ordered to run concurrently. 2. It would be relevant it and convenient to produce, in brief, the facts of the case. The deceased who happened to be the daughter of the informant Ugra Mohan Jha (PW 3) was married to the appellant Ras Bihari Jha of village Khagra under the jurisdiction of Dhoriya Police Station of Banka district in June, 1995. Her Gauna was performed in the year 1996. After solemnization of her marriage and perform of Gauna the deceased went to her matrimonial house. As ill-luck would have it soon after arrival of the deceased in her matrimonial home her in-laws including the appellants who were her husband, brother-in-law and relative of her husband started subjecting her to cruelty and harassment to pressurize her to fetch motor-cycle, colour T.V., fridge and godrej almirah as part of dowry from her parents. The informant (PW 3) subsequently paid a sum of Rs. 30,000.00 to the in-laws of the deceased. However, they were not satisfied with that much and they continued to subject the deceased to cruelty, ill-treatment and torture for fulfillment of their illegal demand for the aforesaid articles and as their illegal demand was not fulfilled and satisfied the appellant and mother-in-law of the deceased killed her or created circumstance compelling her to end her life and they also disposed of her dead body with intent to destroy evidence of commission of crime screening the offenders from legal punishment. 3. The informant Ugra Mohan Thakur, who was a constable posted at Saharsa on getting information regarding death of his daughter on 5-5-1998 rushed to his house on 7-5-1998 after obtaining leave of absence and permission on 6-5-1998. 3. The informant Ugra Mohan Thakur, who was a constable posted at Saharsa on getting information regarding death of his daughter on 5-5-1998 rushed to his house on 7-5-1998 after obtaining leave of absence and permission on 6-5-1998. He learnt that the deceased was, murdered on 2-5-1998 and after concealing the dead body for twenty four hours the appellants disposed of the same in the night on 3-5-1998 at Trimuhani Gut at Kahalgaon. As per allegation the appellants did not allow the members of the family of the informant even to see the dead body of the deceased. The informant asserted that whenever he visited the matrimonial house of the deceased he was narrated by her sordid and woeful tale of ill-treatment, torture and harassment meted out to her. 4. The informant (PW 3) submitted a written report (Ext. 1) to the officer-in-charge of Dhoraiya Police Station on the basis of which the formal FIR (Ext. 2) was drawn up and Dhoraiya P.S. Case No. 34 of 1998 giving rise to the instant case was registered. Investigation was taken up and completion thereof the chargesheet was submitted against the appellants and final report was submitted against the mother-in-law of the deceased, which was accepted by the Magistrate and finally the trial commenced after commitment. 5. The appellants did not enter into defence. However, from the trend of cross-examination of the prosecution witnesses, the written statement filed on behalf of the appellants as well as their statements recorded under Sec. 313. Cr. PC the defence seemed to be that of total denial and false implication. It was pledged that the deceased was suffering from heart disease and as a matter of fact she died of heart attack. 6. In order to prove its case the prosecution examined PW 1. Rajeshwari Devi and PW 2. Bal Mukund Thakur who were the-grand-mother and grand-father respectively of the deceased besides, PW 3 Ugra Mohan Thakur, father of the deceased and PW 4 Rama Shankar Singh, the Investigating Officer and a formal witness, named. Krishnadeo Das (PW 5) who proved the formal FIR (Ext. 2). 7. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on records into account found and held the appellants guilty and convicted and sentenced them as stated above vide the impugned judgment and order. 8. Krishnadeo Das (PW 5) who proved the formal FIR (Ext. 2). 7. The learned Additional Sessions Judge after taking the facts, circumstances and evidence brought on records into account found and held the appellants guilty and convicted and sentenced them as stated above vide the impugned judgment and order. 8. Aggrieved by the judgment and order of conviction and sentence passed against them the appellants preferred the present appeal. They assailed the impugned judgment and order of conviction and sentence by contending that it is not based on law and facts and correct appreciation of evidence rather it is based on mere surmises and conjectures. 9. The appellants stood charged under Secs. 498-A and 304-B of the Code. Sec. 498-A provides that whoever, being the husband or the relative of the husband of a woman subject such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The word "cruelty" denotes any wilful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life of the woman: or harassment of the woman where such harassment is with a view to coercing her on any person related to them to meet any unlawful demand for some property or valuable security. Sec. 304-B of the Code deals with punishment for causing dowry death. It lays down where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused their death and whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years which may extend to imprisonment for life. 10. It is to be considered as to whether the prosecution has been able to prove the aforesaid charges levelled against the appellants by bringing ample, cogent and reliable evidence on record. PW 2. 10. It is to be considered as to whether the prosecution has been able to prove the aforesaid charges levelled against the appellants by bringing ample, cogent and reliable evidence on record. PW 2. Ugra Mohan Jha, the informant, is the most competent and natural witness in the case and as such his evidence assumes important significance. He supported the prosecution case in its entirety by stating on oath that he got his daughter Suman Devi (deceased) married to the appellant Ras Bihari Jha in the year 1955 and her Gauna was performed in the year 1996 and thereafter she went to her matrimonial house and started leading conjugal life with her husband there. He added that two months after performance of Gauna of the deceased he went to her matrimonial house where she told him that the appellants and her mother-in-law used to subject her to cruelty and harassment to pressurize her to fetch motorcycle colour T.V. fridge and godrej almirah as part of dowry. The witness asserted that the deceased narrated her woeful tale to him whenever he visited her matrimonial home and hence in order to pacify the appellants he made a payment of a sum of Rs. 30,000.00 to the in-laws of the deceased must they were not satisfied with that much and they continued to subject the deceased to cruelty ill-treatment and torture to pressurize her to bring the aforesaid articles from her parents. It is in the evidence of PW 3 that he was informed by his cousin Gopal Thakur on 5-5-1998 that the deceased had been done away with the thereafter on 6-5-1998 he went to Saharsa from Jorai Police Station where he was posted as a constable and obtained leave and permission and proceeded for his house where he reached on 7-5-1998 and there he learnt that his daughter the deceased was killed on 2-5-1998 and after concealing her dead body for the day the appellants burnt the same in the night on 3-5-1998 at Trimuhani Ghat at Kahalgaon. He further stated that he got a report (Ext. 1) written by the aforesaid Gopal Thakur and submitted the same to the police on the basis of which the instant case was registered. 11. The criticism levelled against the evidence of PW 3 is that he did not recite in his written report (Ext. 1) that he had given a sum of Rs. 1) written by the aforesaid Gopal Thakur and submitted the same to the police on the basis of which the instant case was registered. 11. The criticism levelled against the evidence of PW 3 is that he did not recite in his written report (Ext. 1) that he had given a sum of Rs. 30.000.00 to the in-laws of the deceased and in that view of the matter the statement in that regard made in his deposition is afterthought and embellishment. The criticism must be overruled. The FIR is not an encyclopaedia of all details. PW 3 though did not make averment in regard to payment of cash worth Rs. 30,000 in the FIR stated in his subsequent statement to the Investigating Officer (PW 4) that he had given the aforesaid sum of Rs. 30.000.00 to the appellants. This fact stands corroborated by PW 4 as well. Under the circumstances, no averment of the aforesaid payment in the written report or for that matter the FIR is of no consequence and that cannot in the least install even the slightest suspicion in the prosecution version. 12. The informant (PW 3) was subjected to long cross-examination. However, nothing material going to the root of the case was elicited in his cross-examination to demolish his veracity. The witness stated in his cross-examination that the deceased of and on visited his father Bal Mukund Thakur (PW 2) at Bhagalpur and she used to stay there for two or three days whenever he visited him. Her visit to and stay with her grand-father at Bhagalpur for two or three days is not going to mitigate the situation, nor can it belie the story regarding ill-treatment and cruelty meted out to the deceased for pressurising her to fetch more and more dowry from her parents. PW 3 was put a suggestion that the deceased was suffering from heart disease and she died of heart attack. He denied the suggestion. In his crossexamination he admitted that he learnt from his father (PW. 2) that the deceased visited Bhagalpur in connection with her treatment. His this admission can not give rise to an inference that the deceased was suffering from heart ailment. As regards complaint made by the deceased to her father (PW-3) regarding cruelty and harassment meted out to her for more and more dowry. PW. 2) that the deceased visited Bhagalpur in connection with her treatment. His this admission can not give rise to an inference that the deceased was suffering from heart ailment. As regards complaint made by the deceased to her father (PW-3) regarding cruelty and harassment meted out to her for more and more dowry. PW. 3 reiterated in his cross-examination that his daughter, the deceased, never wrote letter to him and she used to make oral complaint in that regard. 13. The informed Ugra Mohan Thakur (PW 3) was corroborated in all material particulars by his father Bal Mukund Thakur (PW 2) and his mother Rajeshwari Devi (PW 1). Both the witnesses stated that the deceased was married to the appellant Ras Bihari Jha in 1995 and her Gauna was performed in 1996 and thereafter she went to her matrimonial house and soon after arrival of the deceased in her matrimonial home the appellants who happened to be her in-laws started subjecting her to cruelty. Illtreatment and torture to pressurise her to fetch motorcycle colour T.V. fridge and godrej almirah as part of dowry from her parents though PW 3 subsequently paid a sum of Rs. 30.000.00 to them they could not fulfill and satisfied the entire demand of the appellants in consequence of which they killed the deceased and disposed of her dead body without giving any information to them. PW 2 further stated that in June 1998, he got a letter from an unknown person intimating him that the deceased was dead. PW 1 asserted that the deceased was done away with as the illegal demand for more and more dowry made by the appellants was not fulfilled by her parents. PW 2 in his cross-examination stated that he had gone to the matrimonial house of the deceased in 1996 but he was not allowed to meet the deceased by her in-laws and in the next morning at the time of his departure when he started reprimanding the inmates of the house the deceased came there with intent to have some talk to him but 4-5 persons stood by her side as a result of which she could not have talk with him. He also stated that no letter written by the deceased was ever handed over to him. The statement of PW 1 in her cross-examination that she came to know of illegal demand for motorcycle. T.V. etc. He also stated that no letter written by the deceased was ever handed over to him. The statement of PW 1 in her cross-examination that she came to know of illegal demand for motorcycle. T.V. etc. made by the appellants from her son Ugra Mohan Thakur (PW 3) cannot give rise to an inference that she had no knowledge regarding ill-treatment cruelty and torture meted out to the deceased to pressurise her to fetch more and more dowry from her parents. PW 1 was suggested that the story of dowry demand and cruelty and harassment meted out to the deceased and her unnatural death caused by the appellants on account of non-fulfillment of their illegal demand was entirely false and baseless. She denied the suggestion. The suggestion put to PW 2 was that no such incident ever took place and he had deposed falsely against the appellants. 14. The evidence of PWs. 1, 2 and 3 is quite consistent and corroborative, free from inherent taint and infirmity and the same has got to be accepted and acted upon. 15. PW 4. Uma Shankar Singh was the Investigating Officer. In the present case the place of occurrence was the matrimonial house of the deceased as well as Trimuhani Ghat on the river Ganges at Kahalgoan. PW 4 inspected both the places and gave a vivid description of the same. Naturally nothing remarkable was found at any of the two places of occurrence. PW 4 stated that he recorded the statement of the informant and he found the appellants absconding. In his cross-examination he stated that no letter was handed over to him in course of investigation. It is to be observed that PW 2. stated that some unknown person gave a letter to him intimating that the deceased was done away with. There is nothing on the records to show that the aforesaid letter was written by any of the appellants or at their instance. The letter simply containing, information regarding death of the deceased was not at all material for arriving at a correct conclusion in the case at hand. Even if it is assumed for the sake of argument though there is no ground for such assumption/that the letter in question was, not written at the instance of the appellants that is not going to affect the prosecution version adversely. Even if it is assumed for the sake of argument though there is no ground for such assumption/that the letter in question was, not written at the instance of the appellants that is not going to affect the prosecution version adversely. Particularly, when it is in evidence of the infomtant that though the death of the deceased occurred on 2-5-1998, her dead body was concealed for one day and it was carried to Trimuhani Ghat on Niraj bus and burnt there in the night on 3-5-1998 and prior to her death she was not allowed to see and meet PW 2 when he had visited her house. Non-production of the letter referred to above is of no consequence. The statement of PW 1 in his cross-examination that persons of the village where the matrimonial house of the deceased situated did not support the story of dowry death rather they said that it was a case of natural death can not be attached any weight age or value. 16. The appellants by putting questions to the witnesses in their cross-examination have tried to make out a defence that the deceased was suffering from her ailments and she was treated at Bhagalpur by doctors including Dr. Ramjee Singh and as a matter of fact she died of heart attack. No iota of evidence was brought on records to probabilise that the deceased was really suffering from heart disease and she was undergoing treatment by the doctors at Bhagalpur and she ultimately died of heart attack. Had the deceased been undergoing treatment, prescriptions and other papers in regard to her treatment would have been brought on records. But surprisingly enough not even a single chit of paper was produced to show that the victim was examined and treated by some doctors at Bhagalpur or anywhere else. Under the circumstances, the defence set-up, by the appellants is not at all probable and plausible and the same cannot be accepted. 17. It is true that PW 1 stated that her statement was not recorded by the police but on account of negligence and laches on the part of the Investigating Officer in not recording her statement the statement made by her on oath in the Court can not be discarded nor can the ends of justice be allowed to be frustrated. 18. 18. That the deceased was married to the appellant Ras Bihari Jha in the year 1995 and her Gauna was performed in the year 1996 and she died within seven years of her marriage is not disputed. There is unimpeachable evidence of PWs 1, 2 and 3 that soon after the arrival of the deceased in her matrimonial home her in-laws started subjecting her to cruelty and harassment to pressurize her to fetch motorcycle, T.V., fridge and godrej almirah as part of dowry from her parents. PW 3 stated that dispute over dowry demand had been going on since performance of marriage of the deceased. It is also assertion of the aforesaid witnesses that the appellants who were her in-laws killed the deceased on 2-5-1998, concealed her dead body for complete one day and disposal of the same in the night on 3-5-1998 at Trimuhani Ghat at Kahalgaon. The death of the deceased was, thus, obviously unnatural and it occurred otherwise than under normal circumstance. The defence version that she was suffering from heart ailment and was undergoing treatment at Bhagalpur and as a matter of fact she died of heart attack was not supported by any material on records and the same must be rejected outright. It also stood well-proved that the deceased was being subjected to cruelty and harassment in connection with dowry demand right from the time of solemnization of her marriage till her death, Facts, circumstances and evidence on records established all the essential ingredients of Sec. 304-B of the Code i.e., death of the deceased otherwise than under normal circumstance within seven years of her marriage and cruelty, ill-treatment and torture meted out to the deceased by her in-laws soon before her death. In the facts and circumstances of the case there shall also be presumption under Section 113-B of Evidence Act that in-laws of the deceased caused dowry death of the deceased. 19. The appellants sought for assistance and relief from the case of Kans Raj V/s. State of Punjab and others. The case cited at the bar deals with Secs. 32 and 113-B of the Evidence Act as well as Secs. 304-B and 498A of the Code. 19. The appellants sought for assistance and relief from the case of Kans Raj V/s. State of Punjab and others. The case cited at the bar deals with Secs. 32 and 113-B of the Evidence Act as well as Secs. 304-B and 498A of the Code. It was held in that case that no presumption under Sec. 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter, and mere lapse of sometime by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. Applying the principle of law enunciated in the case cited at the bar here it is to be held that the presumption under Sec. 113-D of the Evidence Act would apply to the facts and circumstances on attending to the case at hand. The case referred to above is of no avail to the appellants and it cannot come to their rescue. The case instead of providing some succour to the appellants goes against them. 20. The materials on record established beyond the reasonable doubt that in-laws of the deceased subjected her to cruelty and harassment for more and more dowry and as their illegal demand was not fulfilled and supplied they killed her or created circumstance compelling her to end her life and they disposed of her dead body within seven years of her marriage and there by they rendered themselves liable for having committed dowry death and also for having destroyed evidence of commission of offence for screening the offenders from legal punishment under Secs. 304-B, 498-A and 201 of the Code. 21. 304-B, 498-A and 201 of the Code. 21. It was contended that the appellants Ras Bihari Jha and Kunj Bihari Jha were full brothers and PW 3 in his cross-examination said that two years after marriage of the deceased her father-in-law and brother-in-law had effected partition and they started living separate and in that view of the matter it was highly unlikely that the appellant Kunj Bihari Jha subjected the deceased to cruelty and harassment in connection with dowry demand for, he being separate from the appellant Ras Bihari Jha had nothing to do with dowry demand and ill-treatment and cruelty meted out to the deceased and as such Kunj Bihari Jha could not be convicted. In the facts of ample, cogent and reliable evidence available on records to show that both the appellants Ras Bihari Jha and Kunj Bihari Jha used to subject the deceased to cruelty and harassment for more and more dowry and as their illegal demand was not fulfilled and they killed her or created circumstances compelling her to end her life and they disposed of her dead body. The contention put forward on behalf of the appellants cannot be accepted on the basis of the statement of PW 3 in his cross-examination that two years after marriage of the deceased her father-inlaw and brother-in-law started living separately, particularly, when PW 1 did not say that it was Kunj Bihari Jha who was separate from the appellant Ras Bihari Jha. 22. However the appellant Churamani Jha did not belong to the family of the appellant Ras Bihari Jha and Kunj Bihari Jha. He is said to be Sarhu of the brother of the appellant Ras Bihari Jha. PW 2 stated in his examination-in-chief that he did not identify the appellant Churamani Jha. Under the circumstance the contention of the learned counsel for the appellant that Churamani Jha being an outsider and not directly connected with the family of the husband of the deceased had nothing to do with dowry demand and ill-treatment and torture meted out to the deceased and he had been unnecessarily dragged into the case seems to be pregnant with meaning and substance the appellant Churamani Jha deserves to be extended the benefit of doubt. 23. 23. In view of what has been stated and observed in the preceding paragraphs it is to be held that the prosecution brought home the charges levelled against the appellants Ras Bihari Jha and Kunj Bihari Jha. The learned Court below rightly convicted them. The sentences awarded to them too did not seem to be excessive or exorbitant warranting interference by this Court. However, the appellant Churamani Jha seems to be entitled to get benefit of doubt. 24. For the reasons stated above, the appellant Churamani Jha is given benefit of doubt and conviction and sentence recorded against him is set-aside and he stands acquitted of the charges levelled against him. Conviction and sentence of the appellants Ras Bihari Jha and Kunj Bihari Jha are maintained and confirmed. The appellants Kunj Bihari Jha and Churamani Jha are on bail. The appellant Churamani Jha is discharged from the liability of his bail-bond. The bail bond of the appellant Kunj Bihari Jha stands cancelled. The Court below shall take steps for remanding the appellant Kunj Bihari Jha to jail to serve out the sentence. 25. With the aforesaid modification in conviction and sentence the appeal stands allowed in part.