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2004 DIGILAW 461 (JHR)

Samar Thakur v. State of Bihar

2004-04-28

HARI SHANKAR PRASAD

body2004
JUDGMENT : Hari Shankar Prasad, J. Both these appeals are directed against the judgment of conviction and order of sentence dated 10.5.2000 passed in Sessions Trial No. 282/96, whereby and whereunder the learned Sessions Judge, Giridih held all the three appellants guilty under Section 304(B) IPC and convicted and sentenced them to undergo RI for seven years each. 2. Prosecution case in brief is that Dharam Thakur, informant, lodged an FIR with Bagodar police on 13.8.96 at 7 PM stating therein that on 12.8.96 at 8 PM in the night appellant Daleshwar Thakur came to his house and informed him that Shaili @ Hulsi Devi was suffering from diarrhoea and vomiting and requested him to visit his house to see her. Shaili @ Hulsi Devi is the daughter of informant Dharam Thakur. Next morning informant alongwith some co-villagers went to the house of the appellants and found his daughter dead but he learnt there from the villagers of the village of appellants that the appellants had murdered his daughter by pressing her neck and thereafter hanged her for dowry. Shaili @ Hulsi Devi was married in the year 1991 with Daleshwar Thakur and Dharam Thakur had given dowry according to his capacity and after Bidai of his daughter of her Sasural, she lived there for some time peacefully but thereafter, whenever she came to Naihar, she always complained for the ill-treatment meted out to her by her husband, mother-in-law, father-in-law, Debar etc. for bringing insufficient dowry and also that her father has sent a ghost in the house of the appellants. Further case of the prosecution is that whenever his Samadhi visited to his house, he always demanded more dowry and also requested to re-call the ghost, which he has sent otherwise Shaili @ Hulsi Devi will be driven out. Upon this information, Bagodar police registered a case under Section 304(B)/34 IPC and investigation was taken up and after investigation, police submitted chargesheet against the appellants. Cognizance of the offence was taken on the basis of report and case was committed to the court of sessions, where learned Sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty and convicted and sentenced them as aforesaid. 3. Prosecution has examined 8 witnesses. PW 1 is Jainath Paswan, who is an assistant in operation theatre. PW 2 is Pokhan Thakur. 3. Prosecution has examined 8 witnesses. PW 1 is Jainath Paswan, who is an assistant in operation theatre. PW 2 is Pokhan Thakur. PW 3 is Baleshwar Paswan, who is a taxi driver. PW 4 is Dharam Thakur, he is informant and father of deceased, Shaili @ Hulsi Devi. PW 5- is a doctor, who conducted the post mortem examination on the dead body of Shaili @ Hulsi Devi. PW 6 is Mahadeo Mahto, he has been declared hostile. PW-7 is Thakur Mahto, he has also been declared hostile. PW 8 is I.O. of the case, who conducted the investigation. 4. PW 4 is the most important witness in this case. According to this witness, Shaili @ Hulsi Devi was his daughter and she was married seven years before with appellant Daleshwar and after marriage his daughter went to her sasural and lived there for about a year and thereafter her mother-in-law, father-in-law, debar and her husband started quarreling with her on the issue of Tilak and dowry and they were Complaining that alongwith daughter he (infrmant) has sent ghost in their house. Further according to this witness, when deceased Shaili @ Hulsi came to her naihar, she disclosed to him (PW 4) about the quarrel and demand of dowry. 11/2 years before his son-in-law Daleshwar came to him and informed that his daughter is suffering from diarrhoea and he requested him to see his daughter but at that time it being night on that day, he went to her Sasural next morning alongwith co-villagers and when he reached Pokharia, he saw his daughter lying dead on a cot. According to this witness, police came to village Pokharia, where he gave his fard beyan. 5. PW 1 is a witness, who accompanied PW 4 to the Sasural of Shaili @ Hulsi Devi on getting information that she is suffering from diarrhoea. On 13.6.96 he alongwith PW 4 and others went to Pokharla and saw the dead body of Hulsi lying on a cot. There was a crowd of villagers and at that time he saw some stains on the neck of deceased. According to this witness, 11/2 months before deceased had come to her naihar and had disclosed to him that her susural people including the appellants tortured her for dowry. 6. PW 2 is Pokhan Thakur. There was a crowd of villagers and at that time he saw some stains on the neck of deceased. According to this witness, 11/2 months before deceased had come to her naihar and had disclosed to him that her susural people including the appellants tortured her for dowry. 6. PW 2 is Pokhan Thakur. According to this witness, PW 4 had come to him in the night and asked him about the fact that his daughter is suffering from diarrhoea and vomiting and requested him to go to her sasural alongwith him (PW 4). This witness also went with him (PW 4) to Pokharia, where on reaching he saw the dead body of Shaili @ Hulsi lying on a cot. He admits that he is the nephew of PW 4. 7. PW 3 is Baleshwar Paswan. He is a taxi driver. He is a witness, who has also gone alongwith PW 4 to Pokharia, where he saw the dead body of Shaili @ Hulsi lying on a cot. According to this witness, PW 4 had come to his house in the night and requested him to go to Pokharia alongwith him. 8. PW 5 is Dr. Rajendra Choudhary, who conducted the post mortem examination on the dead body of Shaili @ Hulsi Devi and found the following injuries: "Rigormortis absent. Body was in process of putrifaction. Face was swollen. Hair black and loosing of hair. Maggots on face, mouth partially opened, tongue placed in between teeth, bloody froth escape from mouth, eyes open and protruded and congested, red conjunctiva, ligature mark parchment like obliquely placed round the neck above thyroid cartilage between chin and hyoid bone deficient on back of the neck. No external injury was found on her person other than ligature mark discharge of faeces. On dissection, subcutaneous tissue under the ligature mark was found white glistening. Hyoid bone intact. Ligature mark on the neck was ante mortem in nature. Larynx and trachea-NAD. Right side of heart engorged with blood and left side of the heart empty. Abdomen distended. On opening of the abdomen hair burst out. Lungs in process of putrefaction. Spleen congested in process of putrefaction. Liver in process of putrefaction. Kidney congested. Stomach contained undigested food and in process of putrefaction. Mucous membrane of the stomach congested. Urinary bladder empty. Uterus NAO. Skull bone intact. Abdomen distended. On opening of the abdomen hair burst out. Lungs in process of putrefaction. Spleen congested in process of putrefaction. Liver in process of putrefaction. Kidney congested. Stomach contained undigested food and in process of putrefaction. Mucous membrane of the stomach congested. Urinary bladder empty. Uterus NAO. Skull bone intact. Brain liquefied." In the opinion of doctor, Shaili @ Hulsi Devi died as a result of asphyxia clue to hanging, although he reserved some organs for further investigation. He did not find any external injury on the dead body of Shaili @ Hulsi Devi except ligature mark and according to doctor, ligature mark may be caused by a rope. 9. PW 8 is I.O. of the case. On 13.8.96 he got a rumour that a woman in village Pokharia has been murdered for dowry and on this piece of information he went to Pokharia at 5.10 PM and after reaching there he recorded fard beyan of Dharam Thakur (Informant) (Ext.2), in presence of two witnesses. He again recorded the statement of Pokhan Thakur, Baleshwar Paswan, Jainath Paswan and others. He prepared inquest report of the dead body of the deceased and inspected the I.O. On this piece of evidence, learned court below held the appellants guilty and convicted and sentenced them as aforesaid. 10. The judgment has been assailed on the ground that there is no eye witness to the scene of occurrence and entire case is based on circumstantial evidence. Witnesses named in the chargesheet, such as Snaichar Mahto, Dhanpati Mahto, Gobardhan Mahto, Nandu Mahto, Fulchand Mahto and S.P. Singh, have not been examined and no explanation has been given by the prosecution as to their non-examination. There is no cogent evidence regarding demand of dowry and the evidence, which has been led, cannot be believed. The learned court below, without appreciating the evidence, has come to a finding on the basis of presumption under Section 113A of the Evidence Act. No charge has been framed under Section 498A and, therefore, cruelty, which is the basis, has not been proved and on this point no evidence has been adduced. The prosecution has failed to establish the case that marriage has been performed within seven years from the date of occurrence. 11. No charge has been framed under Section 498A and, therefore, cruelty, which is the basis, has not been proved and on this point no evidence has been adduced. The prosecution has failed to establish the case that marriage has been performed within seven years from the date of occurrence. 11. On the other hand, learned APP, appearing for the State, pointed out that judgment under challenge does not require any interference because the judgment is perfect one and it has dealt with all the points raised by the learned counsel for the appellants. Learned APP further pointed out the offence under Section 304(8) is a distinct offence and for proving the offence under Section 304(8) it is not at all necessary to frame charge under Section 498A IPC as offence under Section 498A is included in the offence under Section 304(8) and, therefore, non-framing of charge under Section 498A does not affect the merit of the case. Learned APP further pointed out that in an offence of this nature, where dowry death is involved, invariably no eye witness is found where an offence under Section 304(8) is committed because generally such offences are committed in Sasural of the victim ladies and inmates of the house are all Sasural people and they do not come to support the case against their own men or involve themselves and, therefore, in such a situation it is difficult to find an eye witness. It is rare in rarest cases that sometimes eye witnesses are available because such offences are committed under the colour that the victim lady has herself committed offence and due to this very pretext these offences are committed at the time when no eye witness from outside of the house is available and the case stands merely on circumstantial evidence. Learned APP also submitted that some witnesses named in the chargesheet have not been examined but many of them, who had accompanied the informant to the sasural of deceased Shaili @ Hulsi Devi have been examined and they have supported the case. Learned APP also submitted that some witnesses named in the chargesheet have not been examined but many of them, who had accompanied the informant to the sasural of deceased Shaili @ Hulsi Devi have been examined and they have supported the case. Learned APP further pointed out that marriage was solemnized within seven years of the occurrence because both in the FIR (Ext.2) and in the deposition of PW 4, where he has categorically stated that seven years before marriage was solemnized, meaning thereby that seven years before from the date of his deposition, and he has deposed in the year 1998 and occurrence is of the year 1996 and seven years before from 1998 comes to about 1991, which has been stated in the fard beyan of this informant. PW 4 has failed to say the month, time, day of the marriage and the year of the marriage but no suggestion was over given that marriage was not solemnized within seven years of the occurrence. Both in the fard beyan (Ext.2) and in the deposition of PW 4 the year comes to 1991 i.e. marriage took place about five years before the date of occurrence that took place in 1996, hence first ingredient has been met out. Further not only PW 4 but PWs 1, 2 and 3 have stated that demand of dowry was made by sasural people and cruelty was being committed upon the deceased Shaili @ Hulsi Devi and, therefore, cruelty or harassment was for and in connection with demand of dowry. It has also come in the evidence of these witnesses that demand was made by husband, mother-in-law and father-in-law of the deceased and it is also proved that she died by committing suicide, which is otherwise than in normal circumstance. He further submitted that 11/2 month before the date of occurrence Shaili @ Hulsi Devi had come to her naihar and had disclosed about the torture committed upon her in connection with demand of dowry and 11/2 month means soon before she committed suicide. Further section 113A of the Indian Evidence Act draws presumption in favour of the deceased in the following words: "113-A. Presumption as to abetment of suicide by a married woman. Further section 113A of the Indian Evidence Act draws presumption in favour of the deceased in the following words: "113-A. Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.---For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860)." 12. Learned counsel appearing for the appellants, has placed reliance upon (2002) 10 SCC 163, wherein case brought under Sections 304(B), 498A and 201 IPC was allowed and conviction and sentence was set aside holding that there was no allegation against the father-in-law and mother-in law of the deceased. Here in the instant case evidence has come the 11/2 months before the deceased Shaili @ Hulsi Devi had come to her naihar and had disclosed about demand of dowry and cruelty being perpetrated on her by her husband and in laws. Hence this ruling is not applicable in the facts and circumstances of the case. Learned counsel further placed reliance upon (2001) 9 SCC 417 , wherein it was held that prosecution failed to establish that occurrence took place soon before her death and further that demand of money was for and in connection with dowry. Hence, this case is also not applicable because the prosecution has failed to establish that soon before her death the deceased was subjected to cruelty in connection with demand of dowry. Reliance was also placed. upon (2003)2 SCC 698 . Hence, this case is also not applicable because the prosecution has failed to establish that soon before her death the deceased was subjected to cruelty in connection with demand of dowry. Reliance was also placed. upon (2003)2 SCC 698 . In this case the trial court as well as High Court held the appellants guilty and convicted them but Supreme Court, while allowing the appeal, analyzed several letters written by the deceased to her parents and ultimately came to a finding that since deceased was not in a position to adjust herself in Sasural and that led to her committing suicide and, therefore, appellants were not responsible for her commission of suicide. But here in the instant case,' admittedly Shaili @ Hulsi Devi ended her life by committing suicide and doctor has given a finding that death occurred due to asphyxia as a result of hanging. The doctor also found ligature mark round the neck. Thus, death was established caused as a result of asphyxia due to hanging, and it is not a death, which occurred in normal circumstance but otherwise than normal circumstance. It has already been stated that PW 4 has categorically stated that marriage took place seven years before from the date of his deposition and he came to depose in the year 1998, whereas death occurred in 1996, so death has occurred within seven years from the date of marriage. 13. From the discussions made above, it is clearly established that all the four ingredients, such as (1) death of a woman must have been caused by burns or bodily injuries or otherwise than normal circumstances; (2) such death must have occurred within seven years of her marriage; (3) soon before her death, a woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for and in connection with demand of dowry, have been satisfied as Shaili @ Hulsi Devi committed suicide and as such, it cannot be said to have taken place under normal circumstances and the death occurred within seven years of her marriage and soon before her death, the woman was subjected to cruelty or harassment by her husband and appellants and such cruelty or harassment was for and in connection with demand of dowry. 14. 14. In the result, I do not find any merit in both these appeals, which is accordingly dismissed.