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2003 DIGILAW 915 (PAT)

Toofani Thakur v. State Of Bihar

2003-08-28

INDU PRABHA SINGH

body2003
Judgment I.P.Singh, J. 1. Cr. Appeal no. 371 of 2002 and Cr. Appeal no. 359 of 2002 arising out of same judgment, having been heard together, are being disposed of by this common judgment. 2. The appellant Surendra Thakur of Cr. Appeal no. 371 of 2002 has been convicted under section 304(B) of the Indian Penal Code and sentenced to undergo R.I. for ten years. He was further convicted under section 201 of the Indian Penal Code and sentenced to undergo R.I. for two years with a fine of Rs. 2,000/- in default of payment of fine, to undergo R.I. for six months. He was also convicted under section 498A of the Indian Penal Code and sentenced to undergo R.I. for two years with a fine of Rs. 2,000/-, in default of payment of fine to undergo the term of six months. He was further convicted under section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for two years with a fine of Rs. 5,000/-, in default of payment of fine, to serve a further period of six months in jail custody. However, all the sentences were ordered to run concurrently. 3. The appellant no. 1 Toofani Thakur, appellant no. 2 Dukhan Thakur, appellant no. 3 Bhola Thakur and appellant no. 4 Deo Narayan Sharma of Cr. Appeal no. 359 of 2002 have been convicted under section 304B of the Indian Penal Code and sentenced to undergo R.I. for seven years each. They were also convicted under section 201 of the Indian Penal Code and sentenced to undergo R.I. for one year with a fine of Rs. 1,000/- each, in default of payment of fine, to undergo further R.I. for three months each. Appellants Toofani Thakur, Dukhan Thakur and Bhola Thakur were further convicted under section 498A of the Indian Penal Code and sentenced to undergo R.I. for two years each with a fine of Rs. 2,000/- each, in default of payment of fine to undergo R.I. for six months each. They were also convicted under section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for two years with a fine of Rs. 5,000/- each, and in default of payment of fine, to undergo R.I. for six months each. However, all the sentences were ordered to run concurrently. 4. They were also convicted under section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for two years with a fine of Rs. 5,000/- each, and in default of payment of fine, to undergo R.I. for six months each. However, all the sentences were ordered to run concurrently. 4. The prosecution case, in short is that on a written report given by the informant Kesariya P.S. case no. 41 of 1999 was registered. According to the first information report the deceased was the sister of the informant who was married with appellant Surendra Thakur on 27.4.1996 according to Hindu rites. It has been stated that in the marriage of the deceased Dharmanti Devi sufficient dowry was given by the informant. There was an agreement to give television and motor cycle was also there but due to financial crisis the same was not paid to the appellant and for which the informants sister namely Dhanmanti Devi was being tortured and harassed by the accused/appellants. It has been stated that she had written several letters to the informant, informing about her harassment and torture done by her husband and inlaws. It has also been stated in the first information report that the deceased had revealed to the informant that she would be killed if motor cycle would not be given to them. On 10.5.1999 the informant received information that his sister was killed by the accused/appellants on 9.5.1999 and they had disposed of the dead body by burning the same with the help fo some unknown people of village Katahariya. The police after investigation submitted chargesheet against the appellant under sections 304(B), 498(A) and 201 of the IPC and also under Sections 3/4 of the Dowry Prohibition Act. Accordingly, learned Magistrate took cognizance and committed the case to the court of Sessions for trial. Ultimately, the trial concluded in the manner as indicated above. The appellants have pleaded not guilty and have stated that there was no demand of dowry and they had not tortured the deceased Dhanmanti Devi. 5. The prosecution in support of its case has examined altogether six witnesses. P.W. 1 Arjun Sharma is the informant of the case. P.W. 2 is Munshi Rai, he has been declared hostile. P.W. 3 is Ramjash Rai, he has been declared hostile. P.W. 4 Mushafir Rai and P.W. 5 Rambalak Thakur have also been declared hostile. 5. The prosecution in support of its case has examined altogether six witnesses. P.W. 1 Arjun Sharma is the informant of the case. P.W. 2 is Munshi Rai, he has been declared hostile. P.W. 3 is Ramjash Rai, he has been declared hostile. P.W. 4 Mushafir Rai and P.W. 5 Rambalak Thakur have also been declared hostile. P.W. 6 Udhoji Singh is the.I.O. of this case. He has investigated the case. 6. P.W. 1 the informant Arjun Sharma has fully supported the case of the prosecution as stated in his fardbayan. According to him the deceased Dhanmanti Devi was his sister who was married to appellant Surendra Thakur on 27.4.1996. He has further stated that after the marriage the inlaws of his sister started demanding television and motor cycle in dowry. He has also stated that at the time of marriage he gave sufficient dowry and there was an assurance to give television and motor-cycle later but due to financial crisis the same was not given and for which his sister was beaten and tortured by her in-laws and her husband. According to him the appellants threatened her to be killed if the demand of dowry will not be fulfilled. He has also stated that his sister had written a letter in which she had stated about her torture and harassment at the hands of her in-laws. The letter which has been exhibited, has been marked Ext-1 and 1/1. According to him, he received the information on 10.5.1999 that his sister Dhanmanti Devi has been killed by her in-laws. Thereafter, he rushed to the village Katahariya where the villagers informed him about the death of his sister when he reached there and he found that the dead body had already been cremated. He got information from the villagers that the appellants had killed his sister and she was also cremated by the appellants. 7. P.W.6 is the I.O. of this case. He has also supported the case of prosecution. According to him he was posted as Officer-in-Charge at Kesariya Police station. He has stated that the informant gave his written statement and on his statement the case was registered and he started the investigation of the case. He has also recorded the statement of the other witnesses. He also visited the place of occurrence and has given full description of the same. He has stated that the informant gave his written statement and on his statement the case was registered and he started the investigation of the case. He has also recorded the statement of the other witnesses. He also visited the place of occurrence and has given full description of the same. He has stated that the marriage of the sister of the informant was solemnized in 1996 with the appellant Surendra Thakur and Rs. 15,000/- was given as dowry. He also recorded the statement of the other witnesses. According to him P.Ws. 2,3,4 and 5 had stated before him that the marriage of the sister of the informant was solemnized in the year 1996 and Rs. 15,000/- cash was given as dowry. He stated that he learnt that the sister of the informant was killed because of non-fulfilment of the demand of TV. and motorcycle. They also came to know that the appellants have disposed of the dead body stealthily. They have stated that the deceased after taking meal in the night went to sleep in her room and in the morning at 7 Oclock the door of the room was broke open thereafter she was found hanging with the ceiling of the room. They have also stated that the information about death of deceased was not given even to the informant by the appellants. He saw the broken kundi of the door. 8. Learned counsel for the appellants has submitted that the trial court has wrongly held all the appellants guilty of dowry deaths punishable under section 304B of the Indian Penal Code and convicted them under the aforesaid sections, even though there is no direct evidence of overt act against them. It has further been submitted that the deceased committed suicide. The trial court also did not appreciate the evidence of P.Ws. 2,3,4 and 5 that they did not support the prosecution case and they had been declared hostile. It has also been further submitted that the letter which has been marked as Exts-1 and 1/1 cannot be given weightage as the deceased Dhanmanti Devi was not educated enough to write letter and it was a forged and fake letter, on which learned court below has given much reliance. 9. Though it has been submitted that the case is based on a single witness of the informant, PW.1, but other witnesses, PWs. 9. Though it has been submitted that the case is based on a single witness of the informant, PW.1, but other witnesses, PWs. 2,3,4 and 5 though have turned hostile, have supported the case of prosecution during investigation which is apparent from the deposition of the I.O. It appears that these witnesses have been gained over by the defence during the trial. Usually villagers in due course do not want to depose against a co-villager. This case being a case of death of a woman in other than natural condition within seven years of her marriage the appellants have to prove their innocence and presumption of guilt under section 113(B) of the Evidence Act would be there. But in this case to attract an offence of the dowry death it has to be seen that soon before the death, the woman has been subjected to cruelty and harassment by her in-laws in connection with demand of dowry. If that is proved and death was not a natural condition, it would be presumed that all such persons so alleged in cruelty are guilty of the dowry death. There are four ingredients of a dowry death, namely death under abnormal circumstances and within seven years of marriage. The deceased must have been subjected to cruelty by husband and her relatives that too in connection with demand of dowry. As such, in such cases testimony of number of witnesses are not required. The only thing that the prosecution has to prove is that the death was not in normal condition. Admittedly, in this case there was admitted suicide committed by the deceased Dhanmanti Devi, within seven years of her marriage, which itself goes to show that she was in great mental agony and torture which compelled her to commit suicide. 10. According to P.W.1 there was demand of television and motor cycle which was not fulfilled by the informant and for that the deceased was being tortured by her husband and in-laws. She has also written letters which show that she was being tortured and harassed. Not only that PW. 1 being the brother of deceased was competent witness to say about demand of dowry and torture meted out to the deceased. The dead body was also disposed of without informing the informant which also shows guilty and suspicious behavior of the appellants. Not only that PW. 1 being the brother of deceased was competent witness to say about demand of dowry and torture meted out to the deceased. The dead body was also disposed of without informing the informant which also shows guilty and suspicious behavior of the appellants. As such, the court below on appreciation of evidence of witnesses rightly held Surendra Thakur, Toofani Thakur, Dhukhan Thankur and Bhola Thakur guilty of offence punishable under sections 304B and 498A of the IPC. 11. The learned counsel for the appellant no. 4 Deo Narayan Sharma has submitted that he is the Samdhi of the appellant no. 1 Toofani Thakur and he is resident of other village. There is no specific allegation against him. He being a member of other family and resident of other village had nothing to do with the killing of the lady. It appears that there is no overt act against him and in that situation the case against him might have been launched only unnecessarily tc harass him. As such in my opinion he deserves benefit of doubt. Accordingly, he is acquitted of the charge levelled against him giving benefit of doubt. 12. The conviction awarded to appellant Toofani Thakur under sections 304B and 498A and 201 of the IPC though upheld but it has been also submitted that the appellant Toofani Thakur is the father- in-law of the deceased and is aged about 70 years as such, he deserves some leniency while awarding sentence and it would not be desirable to send him again to jail to serve out the remaining period of sentence at this age. In my view, it would be expedient in the interest of justice, if the sentence of this appellant is reduced to the period of imprisonment already undergone by him. However, fine of Rs. 2,000/- awarded by the court below is maintained. 13. So far the appellant Surendra Thakur who is the husband of the deceased is concerned, his conviction and sentence under sections 304B and 498 of the IPC is upheld. But, from the deposition of the witnesses it appears that at the time of cremation this appellant was not present in village. As such, he deserves acquittal under section 201 of the IPC. Accordingly, he is acquitted of the charge under section 201 of the IPC. 14. But, from the deposition of the witnesses it appears that at the time of cremation this appellant was not present in village. As such, he deserves acquittal under section 201 of the IPC. Accordingly, he is acquitted of the charge under section 201 of the IPC. 14. The conviction and sentence awarded to appellants Dukhan Thakur and Bhola Thakur by the court below is upheld. 15. In the result, the appeal of the appellant Surendra Thakur of Cr. Appeal no. 371 of 2002 is partly allowed. The appeal of appellant no. 1 Toofani Thakur of Cr. Appeal no. 359 of 2002 is dismissed with the modification in the sentence and the appeai against the appellant no. 2 Dukhan Thakur and also appellant no. 3 Bhofa Thakur stands dismissed. The appeal of Deo Narain Sharma is allowed and he is discharged from the liability of his bail bond.