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2005 DIGILAW 585 (JHR)

Kamdeo Mahto v. State Of Bihar (Now Jharkhand)

2005-08-09

R.K.MERATHIA

body2005
JUDGMENT R.K. Merathia, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 27.5.1994 passed by the Sessions Judge, Hazaribagh in Sessions Trial No. 49 of 1992, whereby the learned Sessions Judge convicted the appellant under Sections 304-B and 498-A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years under Section 304-B of the Indian Penal Code and three years under Section 498-A of the Indian Penal Code. However, both the sentences have been ordered to run concurrently. 2. The prosecution case in brief is that the deceased Smt. Padum Devi was married with the appellant in the year 1986 and, at the time of marriage, dowry was given. After the marriage, a Scooter was demanded by the accused-persons but, in lieu thereof, a Hero Moped was given. After one year of the marriage, the appellant started demanding service from the informant, in lieu of the land of the informant, which was taken by the Central Coalfields Limited. The informant expressed his inability as the service was already given to his son. Thereafter the appellant began to torture his deceased-wife and whenever she came to her naihar, she used to complain about the torture meted out to her by the appellant and she has expressed apprehension of being murdered, if the demand of the appellant is not fulfilled. It is further alleged that a month prior to the date of occurrence, the appellant threatened the informant with dire consequences if the said demand of service is not fulfilled. On 26.7.1991, the father of the appellant came to the house of the informant and informed him that his daughter was missing from the house, whereupon, the informant immediately rushed to the house of the appellant and, ultimately he learnt that the dead body of his deceased-daughter was taken out of a well. Accordingly, it was suspected by the informant that the accused-persons, after killing his daughter, thrown her dead body into the well and were trying to give it a colour of suicide. 3. Mr. T.R. Bajaj, learned Senior Counsel appearing for the appellant, firstly submitted that the marriage took place in the year 1983 and not in the year 1986 and, therefore, the death occurred beyond seven years. 3. Mr. T.R. Bajaj, learned Senior Counsel appearing for the appellant, firstly submitted that the marriage took place in the year 1983 and not in the year 1986 and, therefore, the death occurred beyond seven years. It is the consistent case of the prosecution that the marriage took place in the year 1986 but nothing could be shown by the appellant to prove that the marriage had taken place in the year 1983, as asserted by him. Thus the learned Trial Court has rightly held that the marriage took place in the year 1986. 4. Secondly, Mr. Bajaj argued that the demand of service is not a dowry. In my opinion, service is certainly a property and it will come within the definition of dowry and it has been rightly held so by the trial Court. 5. Thirdly, Mr. Bajaj submitted that there is no material on record to show that the deceased was tortured. 6. Learned Additional Public Prosecutor appearing for the State took me to the evidence on record to show that the prosecution is consistent about the demand and torture. He submitted that only the concerned members of the family can know about such type of things. He further pointed out that the appellant demanded a Scooter and ultimately a Hero Moped had to be given to him. He submitted that the trial Court has rightly found that there was a demand of dowry and the deceased was tortured by the appellant due to non-fulfillment of the said demand by the family of the deceased. 7. Mr. Bajaj lastly submitted that there was no boundary wall around the well and it may be a case of accidental death as the doctor has found it to be a cause of death by drowning. 8. The learned Additional Public Prosecutor has pointed out that the well was only eight feet in depth and the level of the water was about six to seven feet. If some body falls by accident, certainly he/she will not sink immediately and he/she well cry for help. He further pointed out that PW 1 has stated that when the dead body was taken out from the well, bricks rapped in the aanchal of the sari of the deceased were falling into the well. In this circumstance learned Additional Public Prosecutor submitted that it is not a case of accidental death. 9. He further pointed out that PW 1 has stated that when the dead body was taken out from the well, bricks rapped in the aanchal of the sari of the deceased were falling into the well. In this circumstance learned Additional Public Prosecutor submitted that it is not a case of accidental death. 9. After hearing counsel for the parties and on going through the materials on record, I am satisfied that the appellant has rightly been convicted for the offence aforesaid and there is no reason to interfere with the judgment of conviction. 10. Mr. Bajaj then submitted on the question of sentence that out of ten years, the appellant has remained in jail for about three years. It was further submitted that the appellant has further faced the prosecution for more than a decade. It is further submitted that the appellant is serving as Driver in a private firm and, if he is again sent to jail, his family will suffer great hardship. 11. In the facts and circumstances of the case, the conviction of the appellant is maintained but the sentence of ten years is reduced to the period already undergone by him in jail and also to pay a fine of Rs. 10,000/-, and in default thereof, the appellant will undergo a period of two years rigorous imprisonment. 12. The appellant is on bail. His bail bonds are cancelled. He is directed to immediately and forthwith appear in the trial Court. If he deposits the said amount of fine or undergo rigorous imprisonment for two years in case of default, he will be released and discharged from the liabilities of his bail bonds. 13. With this modification in the sentence, the appeal is dismissed.