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2007 DIGILAW 934 (JHR)

Ajit Mahto v. State of Jharkhand

2007-12-14

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J.-Both these appeals are directed against the judgment of conviction dated 16.8.2001 passed by the Sessions Judge, Deoghar in Sessions Trial No. 170 of 1999. whereby appellants were convicted for the offence under section 304B of the IPC and sentenced to undergo imprisonment for 10 years. The gist of the charge, as framed against the appellants by the trial court, is that on 22.3.1998 at their house at village within Karon P.S. the appellants had committed dowry death by setting the deceased Chandrawati Devi, the wife of the appellant Satish Mahto, on fire. 2. The case• against the appellant was registered on the basis of the fardbeyan of the informant recorded at the primary health centre at 4.45 PM on 23.12.1998 by the police officer. The case of the prosecution, as alleged in the FIR, is that the deceased Chandrawati Devi, sister of the informant Puran Mahto (PW 4), was married to the appellant Satish Mahto about six years prior to her death. Though, at the time of marriage, the informant had given cash and articles by way of dowry according to his capacity, to the appellants, yet after the marriage, husband and his parent namely, the appellants Ajit Mahto and Batasi Devi demanded 40 tolas of silver ornaments and 01 tala of gold by way of dowry. The informant could not meet the demand on account of his financial constraints. In order to pressurize the informant to meet their demand, the appellants began subjecting the deceased to ill-treatment, neglect and cruelty and depriving her of proper food and comfort. The appellants had even threatened that they would not let the girl to live at her matrimonial house. About 20 days prior to her death, the deceased visited her brother's (informant) house and informed him about the ill-treatment meted out to her and she was assaulted and driven out of her matrimonial house by her husband and in-laws. They had forbidden her entry' into her matrimonial house unless their demands of silver and gold ornaments are fulfilled. About 20 days prior to her death, the deceased visited her brother's (informant) house and informed him about the ill-treatment meted out to her and she was assaulted and driven out of her matrimonial house by her husband and in-laws. They had forbidden her entry' into her matrimonial house unless their demands of silver and gold ornaments are fulfilled. About 10 days prior to the date of occurrence, one Bharat Mahato, who happens to be the brother-in-law of the appellant Satish Mahato, came to the house of the informant and persuaded the informant to send his sister (deceased) to her matrimonial house, The informant managed to arrange and give 20 to/as of silver ornaments and sent his sister (deceased) on 16.12.1998 to her matrimonial house, escorted by the aforesaid 8harat Mahato. Thereafter, the informant personally visited his sister at her matrimonial house but her in-laws reprimanded him as to why he has not given the full amount of the demanded articles insisting that he should give the remaining gold and silver ornaments alongwith one television set. A week after i.e. on 23.12.1998 the informant learnt that that his sister (deceased) was burnt to death at her matrimonial house. On this information, the informant went to the house of his sister where he found her lying dead. 3. The further case of the prosecution is that prior to her death, the deceased in her injured condition, was taken to the primary health centre. The police arrived at the hospital where the fardbeyan of the informant was recorded and on the basi~ of which, the instant case was registered against the appellants. 4. The appellants had denied the charges, pleading not guilty. 5. As many as 12 witnesses were examined at the trial including the informant (PW 4), the doctor (PW 12) who had conducted the post mortem examination and the investigating officer (PW 11). Out of the witnesses examined, three wit• nesses namely PWS 5, 6 and 10 were tendered by the prosecution for their cross examination, while PWS 7 and 8 though examined, were declared hostile by the prosecution. 6. Out of the witnesses examined, three wit• nesses namely PWS 5, 6 and 10 were tendered by the prosecution for their cross examination, while PWS 7 and 8 though examined, were declared hostile by the prosecution. 6. The trial court, on considering the evidences of the informant and that of PW 3, mother of the deceased and the testimony of PW 1, a co-villager of the appellants and finding support from the testimony of the doctor and the investigating officer, recorded its finding of guilt against the appellants for the offences under section 3048 of the IPC and convicted and sentenced the appellants accordingly. 7. The appellants have assailed the impugned judgment of conviction primarily on the ground that the finding of the trial court is perverse and against the weight of evidence on record. Shri T.R. Bajaj, learned senior counsel appearing for the appellants Ajit Mahto and 8atasi Devi, submits that the offence under section• 3048 of the IPC is not made out against the appellants even on reading of entire evidence of the prosecution's witnesses. Learned counsel explains that even as per the evidence of PWS 5, 6, 7, 8 and 10, marriage of the deceased with the appellant Satish Mahto was solemnized eight years prior to her death. These witnesses have confirmed that the relationship between the deceased, and her husband and in-laws was cordial and sweet. Learned counsel argues that there is no evidence that soon before her death, the deceased was subjected to cruelty or harassment for dowry and the evidence on the allegation that the appellants used to demand silver and. gold ornaments, is not consistent. According to the learned counsel, the ingredients of Section 3048 of the IPC have not been satisfied at all and, therefore, the conviction of these appellants as recorded by the trial court for the said offence, is totally bad in law and facts. Mrs. Mahua Palit, amicus curiae appearing for the appellant Satish Mahto, adopts the arguments advanced by the senior counsel in support of the grounds urged by the appellant and argues that in absence of cogent and reliable evidence from independent witness, the conviction of Satish Mahto is not sustainable. 8. Counsel for the State on the other hand, controverts the entire grounds as advanced by the appellants and offers support to the findings recorded by the trial court against the appellants. 8. Counsel for the State on the other hand, controverts the entire grounds as advanced by the appellants and offers support to the findings recorded by the trial court against the appellants. Learned counsel places reliance on the testimony of the doctor and explains that the evidence of the doctor read with the post mortem report confirms that the deceased had died on account of burn injuries and that the doctor while conducting the autopsy, had also found smell of kerosene emanating from the body of the deceased. Referring to the evidence of PWS 1, and 4, learned counsel explains that these witnesses have categorically stated that the appellants used to subject the deceased to cruelty and ill-treatment in order to pressurize her to fetch silver and gold ornaments from her brother and not being satisfied with part fulfillment of their demands which was made hardly 15 days prior to the death, appellants burnt her to death. Learned counsel explains further that the place of occurrence where she was burnt though at a distance of about 150 yards from the house but she had suffered the ill-treatment while living in the company and within the house of the appellants as confirmed by the evidence of the investigating officer and also that of the co-villager namely PWS 1 and 7. Learned counsel explains further that from the' evidence of the informant and that of PWS 3, mother of the deceased, the marriage of the deceased with the appellant Satish Mahto was solemnized six years prior to the victim's death and the statements of hostile witnesses to the contrary 'cannot distort this fact. Further, the manner in which deceased had suffered death, categorically indicates that the deceased had suffered unnatural death while living in the house and company of the appellants and prior to her death, deceased was subjected to ill-treatment and cruelty by the appellants over demand for dowry. 9. From the evidence of the doctor (PW 12), it transpires that he had con-ducted the post mortem examination on the dead body of the deceased on 24.12.1998 at the Sub-Divisional Hospital, Jamtara. From the observations which he had recorded in the post mortem report while conducting autopsy, it transpires that he had found smell of kerosene oil coming from the body of the deceased. Hair of the head of the deceased was burnt. Face and lips were swollen. From the observations which he had recorded in the post mortem report while conducting autopsy, it transpires that he had found smell of kerosene oil coming from the body of the deceased. Hair of the head of the deceased was burnt. Face and lips were swollen. Burn injury was found on the head, face, neck, ears, chest and abdomen in the entire area of the frontside extending up to vulva. Both legs were burnt upto 6’’ above the ankle joint, back of the thighs and back of the chest. Cause of the death, in the opinion of the doctor, was due to shock caused by extensive burn injuries. The age of the deceased on the date of her death as recorded in the post mortem report, and also as stated by PWS, 1, 3 and 4 was •17 years. The explanation attempted to be offered by the appellants regarding the cause of death, is that the deceased being issueless had committed suicide. Suggestion has been put by the appellants to PW 1 that the deceased being issueless used to remain pensive and depressed, but the witness had denied the suggestion. No such suggestion has therefore been put to the material witnesses namely, PW3, mother of the deceased or to PW 4 (informant) and neither has any evidence been adduced by the defence in support of such plea. The fact that the appellants used to demand silver and gold .ornaments by way of 'dowry from the informant and the fact that in order to pressurize him for fulfillment of their demands, the appellants used to subject the deceased to cruelty at their house, is confirmed not only by the statements of the informant and mother of tile deceased, but also by the independent witness PW 1. His testimony confirms that ever since after the marriage of the deceased, there used to be frequent quarrels between the appellants and the deceased over demand for dowry and they used to assault her frequently. Evidence of PW 1 also confirms that a week prior to her death, the deceased had visited the house of her brother and this witness had occasion to meet her at that time and she told him that she has been sufferi1g mental and physical cruelty at the hands of the appellants on account of non-fulfillment of their demand for dowry. According to the informant (PW 4) he had found the dead body of the deceased near the rivulet at a distance of about 150 meter away from the house of the appellant. This fact has been confirmed even by the evidence of PW 1 and also by the investigating officer. Significantly, PW 7 claims that on hearing alarms, he went towards the rivulet where he found the deceased lying on the ground in a burnt condition and the appellants Ajit Mahto and Batasi Devi were present there. PW 5 also confirms the presence of both the abovenamed appellants as well as presence of husband and brother-in-law of the deceased at the place of occurrence and contends further that the police on being informed by one Pancham Mahto of the village, visited the place and took the deceased to the hospital. It is significant to note from the evidence of the investigating officer that though, he had found the deceased lying in burnt condition on the sandy bank of the rivulet and while preparing the inquest report, he had observed that the deceased had suffered extensive burn injury, but except the burnt leaves of the nearby bushes, he did not find any other material worth relevance at the place of occurrence. He did not find any container or any firewood or any inflammatory material used for burning. Yet, the doctor had found the presence of smell of kerosene emanating from the body of the deceased. Had the deceased burnt herself by pouring kerosene on her own body, then the kerosene container should have been present at the place of occurrence unless removed away by some other person from the place of occurrence. Another possibility could be that the deceased was first soaked with kerosene elsewhere and thereafter brought to the place of occurrence and set on fire. Either of these possibilities does not support the theory of suicide. 10. The evidence of PWS 3 and 4, who though happen to be the near relations of the deceased, assumes significance and relevance. The appellants have claimed that the evidences of these witnesses cannot be relied upon because they are near relations of the deceased and are highly interested witnesses. This plea of the appellants is not tenable. 10. The evidence of PWS 3 and 4, who though happen to be the near relations of the deceased, assumes significance and relevance. The appellants have claimed that the evidences of these witnesses cannot be relied upon because they are near relations of the deceased and are highly interested witnesses. This plea of the appellants is not tenable. Merely because the witnesses are related to the deceased, their evidence cannot be discarded if the same is otherwise found credible and finds support from other relevant evidence on record. This view finds reinforced by the observation of the Supreme Court in the case of Mallanna and Others vs. State of Karnataka reported in (2007)8 Supreme Court Cases 523. The evidence finds corroboration and support from the evidence of PW 1 in respect of the prosecution's case that the marriage of the deceased with her husband Satish Mahto (appellant) was solemnized six years prior to her death when she was a minor girl and that the husband and in-laws of the deceased used to demand 40 tolas of silver ornaments and one tola of gold ornaments by way of dowry and used to subject the deceased to ill-treatment and cruelty for non-fulfillment of their demand. It is also in their evidence that about 20 days prior to the date of her death, appellants had assaulted the girl and expelled her from their house, where after she came to the house of her brother (informant) and narrated her woes to him. It is also in their evidence that one week prior to the date of her death, her husband and one Bharat Mahato came to the house of the informant and took the deceased alongwith them to her matrimonial. house and at the time of seeing her off, the informant gave 20 tolas of silver ornament to the husband Satish Mahto and at that time, the husband had made a further demand of a T. V. set also. The evidence of these witnesses cannot be brushed aside merely because they happen to be the near relations of the deceased. From the evidence of this witness, it is amply borne out that the deceased had suffered unnatural death within seven years of her marriage with her husband and that the death had occurred while she was living in her matrimonial house in the company of the appellants. From the evidence of this witness, it is amply borne out that the deceased had suffered unnatural death within seven years of her marriage with her husband and that the death had occurred while she was living in her matrimonial house in the company of the appellants. It is also borne out from the evidence that within less than two weeks prior to the date of occurrence, the deceased was assaulted and expelled from her matrimonial house by the appellants and one week prior to her death, the husband alongwith his brother-in-law Bharat visited the house of the informant and took her to her matrimonial house after receiving 20 tolas of silver ornaments from the brother of the deceased, though insisting that the remaining part of the demanded silver and gold ornament alongwith a T.V. set should be delivered soon. Learned counsel for the appellants Ajit Mahto and Batasi Devi argues that there is no specific allegation of demand of dowry made against these two appellants and the evidence of the witnesses namely PWS 1, 3 and 4 in this context contain general and omnibus statements against these two appellants. There appears force in this argument of the learned counsel. On reading the evidence of PW 3 and 4 as also that of PW 1, it appears that though they have stated that in-laws of the deceased used to demand dowry and subject the deceased to cruelty, but there is no specific allegation against the appellants Ajit Mahto and Batasi Devi that it was they who used to make the demands and that, soon before the death of the deceased, they have subjected her to cruelty which lead to her death. On the other hand, there is specific evidence of these witnesses that it was the husband of the deceased (Satish Mahto) who alongwith his brother-in-law visited the informant's house and had persuaded the informant to send the deceased alongwith him and at that time, he had received 20 tolas of silver ornament from the informant and had also made a further demand for a T.V. set by way of dowry. There is, therefore, lack of sufficient evidence to suggest that soon before her death, the deceased was subjected to cruelty over demand for dowry by the appellants Ajit Mahto and Batasi Devi, though such evidence is available against the husband Satish Mahto (appellant). 11. There is, therefore, lack of sufficient evidence to suggest that soon before her death, the deceased was subjected to cruelty over demand for dowry by the appellants Ajit Mahto and Batasi Devi, though such evidence is available against the husband Satish Mahto (appellant). 11. Learned trial court has though discussed elaborately the evidences of the witnesses and has assigned reasons to place reliance on their testimony, has failed to analyze and assess from the evidence on the crucial issue as to whether there is sufficient evidence against the appellants Ajit Mahto and Batasi Devi to confirm that soon before her death, these two appellants had subjected the deceased to cruelty over demand for dowry and therefor!3 could be held responsible for the death of the deceased. The evidence of the prosecution on this issue being deficient in respect of the appellants Ajit Mahto and Batasi [Jevi, they are entitled to benefit of doubt. However, there is enough evidence adduced by the prosecution to meet the ingredients of Section 304B of the IPC and to draw the conclusive inference beyond reasonable doubt that the offence was committed by the appellant Satish Mahto. 12. In the light of the above discussion, I find merit in Cr. Appeal No. 406 of 2001. Accordingly, this appeal is allowed. The judgment of conviction as passed by . the trial court against the appellants Ajit Mahto and Batasi Devi is set aside. They are acquitted of the charges for the offence under section 304B of the IPC. Since both the appellants are on bail, they are absolved from the liability of their respective bail bonds. So far as Cr. Appeal No. 416 of 2004 is concerned, I do not find any merit in this appeal. This appeal is accordingly dismissed. Judgment of conviction and sentence as passed by the trial court against the appellant Satish Mahto for the offence under section 304B of the IPC, is hereby confirmed. .