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2005 DIGILAW 687 (JHR)

Pankaj Bibhuti v. State Of Jharkhand

2005-09-09

AMARESHWAR SAHAY

body2005
JUDGMENT Amareshwar Sahay, J. 1. All the appellants were tried for the offence under Sections 304-B/34 of the Indian Penal Code for committing the dowry death of Nitu Devi in furtherance of common intention and also for the charges under Sections 498-A/34 of the Indian Penal Code for subjecting Nitu Devi (deceased) for cruelty in connection with demand of dowry. 2. The learned 1st Additional Sessions Judge, Garhwa by his Judgment dated 22.5.2004 in Sessions Trial No. 138/2001 convicted the appellant No. 1, for the offence under Section 304-B, IPC as well as under Section 498-A/34, IPC and sentenced him to undergo R.I. for a period of 10 years for the offence under Section 304-B of the IPC, however no separate sentence was passed for the offence under Section 498-A, IPC. The appellant Nos. 2 to 5 were acquitted from the charge under Section 304-B, IPC but they were convicted for the offence under Section 498-A/34, IPC and were sentenced to undergo RI for a period of two years each and also to pay fine of Rs. 500/-each in default to undergo S.I. for two months. Against the said judgment and conviction and sentence, the present appeal has been filed by the appellants. 3. The facts in brief are stated herein-below :- A first information report was lodged by Kashi Nath Singh Agrahari PW 2 on 22.4.2000, alleging therein that his daughter Nitu Devi was married to Pankaj Bibhuti (appellant No. 1) on 26.4.1999 and after the marriage she was living at her in laws place where she resided peacefully for three months. It was stated that when Nitu Devi used to come her parents house (Naihar) she used to complaint that her husband (appellant No. 1) and the in laws (appellant Nos. 2 to 5) used to demand T.V. VCR, Freeze etc as dowry and they also used to threatened that if the demand was not fulfilled then she would be driven out from her matrimonial house. It was further alleged that Nitu Devi used to say that if the demands are not fulfilled then she would not go to her in laws place as she apprehended some danger. However, the informant and his wife performed Bidai of Nitu Devi saying that after delivery some articles would be given. It was further alleged that Nitu Devi used to say that if the demands are not fulfilled then she would not go to her in laws place as she apprehended some danger. However, the informant and his wife performed Bidai of Nitu Devi saying that after delivery some articles would be given. It is stated that on 19.4.2000 at about 10.00 p.m. the informant received telephonic message that Nitu Devi has sustained burn injury. On this information, the informant PW 2, his wife Saroj Devi PW 4, brother Asharfi Lal PW 3 and Umesh Chandra PW 6 proceeded for the village Nagar Untari, i.e., in laws place of Nitu Devi on their own vehicle. At about 3.00 a.m. they reached near village Hanumantaa, at that time they saw that Nitu Devi in injured condition was being taken to Varanasi on a Jeep accompanied by the mother-in-law Kamla Devi, son-in-law and the brother-in-law Parkash Bibhuti. The informant party also accompanied them to Varanasi where she was admitted in a Government Hospital at Varanasi for treatment but she died during treatment on 20.4.2000 at about 2.45 p.m. 4. The appellants pleaded not guilty and specifically pleaded that appellant No. 2 was a very old man aged more than 90 years and that the appellant No. 1 was living separately from the other appellants and they never demanded any dowry either from the deceased or from her parents. As a matter of fact the deceased died due to illness and heart failure. 5. In order to establish the charges, altogether seven witnesses were examined on behalf of the prosecution and on behalf of the defence three witnesses were also examined, apart from some documents, which were marked exhibits. It is relevant to state that neither the Investigating Officer nor the Doctor who held the Post Mortem were examined on behalf of the prosecution PW 1 and PW 7 is the same person, who was examined twice by the prosecution, firstly, as PW 1 to prove the formal FIR and secondly, as PW 7 to formally prove the Post Mortem Report. As stated earlier, PW 2 is the informant i.e., the father of the deceased Nitu Devi, PW 4 Saroj Devi is the mother of the deceased and wife of the informant and PWs 3, 5 and 6 namely, Asharfi Lal, Sona Bachcha and Umesh Chandra are the brothers of the informant. 6. As stated earlier, PW 2 is the informant i.e., the father of the deceased Nitu Devi, PW 4 Saroj Devi is the mother of the deceased and wife of the informant and PWs 3, 5 and 6 namely, Asharfi Lal, Sona Bachcha and Umesh Chandra are the brothers of the informant. 6. The learned trial Court oft consideration of the evidence on record has acquitted the appellant Nos. 2 to 5 from the charges under Section 304-B/34, IPC giving them benefit of doubt but he has convicted appellant No. 1 Pankaj Bibhuti, i.e., the husband of the deceased for the charge under Section 304-B, IPC as well as under Section 498-A/34, IPC. The appellant Nos. 2 to 5 have only been Convicted under Section 498-A/34, IPC and have been sentenced thereunder. 7. I shall firstly deal with the conviction and sentence passed against appellant Nos. 2 to 5 for the offence under Sections 498-A/34, IPC. The learned trial Court has himself held that it was come in evidence that all the accused persons were living separately and doing their business separately. The learned trial Court further noticed the fact that appellant No. 2 Gulab Singh, who is the grand father of appellant No. 1 was aged about 90 years and was brought to the Court with the help of two persons and he was not even in a position to walk. It was further noticed by the trial Court that appellant No. 1 was living separately from appellant Nos. 4 and 5 i.e., his parent. 8. Section 498-A, IPC speaks that : "Whoever, being the husband or the relative of the husband of a woman, subjects 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." 9. From perusal of the evidence of the prosecution witnesses it appears that though they have stated regarding demand of dowry but they have not stated at all regarding commission of any torture or harassment to the deceased by the appellant Nos. 2 to 5 for such demand of dowry. Therefore, it appears that the main ingredients of Section 498-A, i.e., subjecting a woman to cruelty for non- fulfillment of demand of dowry is absolutely missing in the present case so far as against appellant Nos. 2 to 5 are concerned. 10. 2 to 5 for such demand of dowry. Therefore, it appears that the main ingredients of Section 498-A, i.e., subjecting a woman to cruelty for non- fulfillment of demand of dowry is absolutely missing in the present case so far as against appellant Nos. 2 to 5 are concerned. 10. Therefore, in my view, the learned trial Court committed error in convicting appellant Nos. 2 to 5 for the offence under Sections 498-A/34, IPC. There is no evidence at all against appellant Nos. 2 to 5 for holding them guilty for the said offence under Sections 498-A/34, IPC. Accordingly, the conviction and sentence passed against appellant Nos. 2 to 5 for the offence under Sections 498-A/34, IPC cannot be sustained. 11. Now let us examine the material on record regarding the charge against appellant No. 1 for the offence under Sections 304-B and 498-A/34, IPC. 12. It has to be kept in mind that in order to establish the charge for the offence under Section 304-B, IPC the following ingredients are essentially required to be established by the prosecution beyond all reasonable doubts :- (i) The death of the woman must have been caused within seven years of her marriage; (ii) Such death was caused by burn injury or bodily injury or had occurred other wise than in normal circumstance; (iii) The deceased was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Cruelty should be in connection with the demand of dowry; and lastly (v) Such cruelty or harassment should have been committed soon before the death. 13. So far as the first ingredient mentioned above in concerned, the evidence of PWs 2, 3, 4, 5 and 6 clear establishes that the deceased Nitu Devi died within seven years of her marriage and, therefore, the first ingredient was fully established by the prosecution. 14. So far as the second ingredient regarding such death was caused by burn injury or bodily injury or had occurred other wise than in normal circumstance is concerned, Mr. V.P. Singh, learned senior counsel for the appellants submitted that the Post Mortem report of the deceased Nitu Devi was not proved in accordance with law. The prosecution did not examine the Doctor, who performed the Post Mortem examination. V.P. Singh, learned senior counsel for the appellants submitted that the Post Mortem report of the deceased Nitu Devi was not proved in accordance with law. The prosecution did not examine the Doctor, who performed the Post Mortem examination. In fact the Post Mortem report was proved by a pleaders clerk, Le., PW 7 Ramdhayan Pal who was neither acquainted with the Doctor who held Post Mortem nor her was acquainted with his handwriting. Therefore, it is apparent that the Post Mortem report was proved in a very casual manner. In this regard it was further submitted by Mr. Singh that the opinion of the medical expert in the Post Mortem report regarding the cause of death cannot be taken into consideration because the maker of the report was not examined and, therefore, the prosecution utterly failed to established the fact that the death of the deceased was caused by burn injury or bodily injury or had occurred otherwise than in normal circumstance. In support of his submission he has relied on the decision in the case of Shiva Balak Rai @ Ors. v. State of Bihar reported in 1986 East Cr C 700 (Pat) : 1986 PLJR 604 . Mr. Singh further submitted that on behalf of the defence several documents, i.e., medical prescriptions were brought on record, which proved that in fact the deceased died because of ailment. I find force in the submissions of the learned counsel for the appellants. The prosecution in a very casual manner brought on record the Post Mortem report and did not even care to examine the Doctor, who held Post Mortem examination of the deceased and was the maker of the Post Mortem report. In absence of the examination of the maker of the Post Mortem report the opinion given in the said report regarding cause of death cannot be made the basis for conviction. Therefore, I hold that the prosecution could not establish the fact by cogent evidence that in fact the deceased died due to the burn injuries. 15. Mr. Singh further submitted that in the FIR also the informant, who is none else than the father of the deceased did not make any allegation against the appellant or any of the accused persons that they committed any physical torture on the victim Nitu Devi. 15. Mr. Singh further submitted that in the FIR also the informant, who is none else than the father of the deceased did not make any allegation against the appellant or any of the accused persons that they committed any physical torture on the victim Nitu Devi. The informant in his evidence has admitted that he did not make any such allegation in the FIR nor did he make any such statement before the police during investigation. He has admitted to have made such statement for the first time in Court. In such circumstances, Mr. Singh submitted that the prosecution miserably failed to establish the ingredient that the deceased was subjected to cruelty and torture soon before her death. 16. Having perused the evidence of PW 2 I find that in para 19 of his evidence he has specifically stated that he did not mention in his report to the police that the accused persons have killed the deceased by setting her on fire. In para 31 of his evidence he has admitted that the fact regarding demand of dowry by the accused persons was disclosed by him for the first time in Court. PW 3 Asharfi Lal has also stated in his evidence in para 21 that he had not made any statement before the police. In para 23 of his evidence he has further stated that he was making statement for the first time in Court. PW 3, the mother of the deceased in her cross-examination in para 14 has stated that she was making statement for the first time in Court and prior to that she had not given any statement to the police rather in para 16 she admitted that she did not state before the police that her daughter was killed by her in laws by setting fire. 17. The learned APP submitted that there is no doubt that the deceased died in abnormal circumstances within seven years of the marriage and she was subjected to cruelty and, therefore, presumption under Section 113-A of the Evidence Act would not attracted and it would be presumed that the death was caused by the husband or the in laws of the deceased for the non fulfillment of demand of dowry. The submission of the learned APP cannot be accepted because the presumption under Section 113-A of the Evidence Act would only be attracted only when the case of the prosecution would be that the deceased committed suicide within seven years of the marriage due to commission of cruelty by her husband or in laws due to non-fulfillment of demand of dowry. For attracting the provision of Section 113-A of the Evidence Act, the prosecution has to prove first that the woman committed suicide. In the present case it is not the case of the prosecution that the deceased committed suicide. Therefore, Section 113-A of the Evidence Act is not applicable in the present case. 18. In view of the aforementioned statements of PWs 2 and 3, 1 find that their evidence is not only shaky but I find that they have developed the story regarding killing of the deceased by the appellant No. 1 by setting her on fire at the stage of trial and, therefore, their evidence does not inspire confidence. On such un-relaible evidence the appellant cannot be convicted for the offence under Section 304-B of the Indian Penal Code. 19. From a close scrutiny of the oral evidence of the prosecution particularly of PWs 2, 3, 4, 5 and 6, I find that there is no reliable evidence to the effect that appellant No. 1 or any of his relative either demanded dowry or physically or mentally tortured the deceased due to non-fulfillment of the demand of dowry soon before her death. These witnesses have only stated that after the marriage Nitu Devi used to say that her in laws were demanding T.V., Freeze etc. Therefore, in such a situation, I find that the essential ingredients for establishing the charge under Section 304-B, IPC or under Section 498-A, IPC was not be established by the prosecution. 20. In view of the discussions made above, I hold that the prosecution has not been able to prove the charges under Section 304-B or Section 498-A/34 of the Indian Penal Code against appellant No. 1. Consequently, this appeal is allowed. The conviction and sentence against appellant No. 1 for the offence under Section 304-B and 498-A/34 of the Indian Penal Code are hereby set aside. Similarly, the conviction and sentence against appellant Nos. Consequently, this appeal is allowed. The conviction and sentence against appellant No. 1 for the offence under Section 304-B and 498-A/34 of the Indian Penal Code are hereby set aside. Similarly, the conviction and sentence against appellant Nos. 2 to 5 for the offence under Section 498-A/34 of the Indian Penal Code is also set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.