Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 658 (JHR)

Rajendra Modi v. State of Bihar

2009-04-30

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court: All these four appellants charged under section 304 B/34 of the Indian Penal Code were put on trial along with other accused, namely, Lal Chand Modi, Parmeshwar Modi, Rit Lal Modi and Binod Kumar Choudhary, charged under section 201/149 of the Indian Penal Code whereas the accused, namely, Binod Kumar Choudhary was also charged under section 217 of the Indian Penal Code. The trial court, while acquitting other four accused persons of all the charges levelled against them, did find the appellants guilty for the offence under section 304 B/34 of the Indian Penal and, hence, sentenced them to undergo imprisonment for life. The case of the prosecution is that the deceased Pushpa Devi having married Rajendra Modi in the year 1984 was living in her in-laws’ house at village Kusumdih under Mohanpur police station with her husband, father-in-law, mother-in-law and brother-in-law, who are appellants soon after the marriage they started subjecting her to torture on account of non-fulfillment of demand of Rs.5000/-. Further case is that while Om Prakash Agrawal (P.W.7), husband of elder sister of the deceased, was returning home from temple at 6.30 in the morning on 3.6.1986, he was told in the way that Pushpa Devi has died and the family members have been taking her to burning ghat for her cremation. On getting this information, when he came to burning ghat he found accused persons making preparation for consigning the dead body to flame. Thereafter he informed about it to one Deo Narayan Mirdha, Choukidar (P.W.9) and asked him not to allow the accused persons to consign the dead body to flame and then he came to police station and informed the Officer-in-Charge of Mohanpur Police Station, who sent one ASI, Ashok Rajak (P.W.12) to the burning ghat for making enquiry. Upon it, Ashok Rajak came to the burning ghat and forbade the accused persons from burning the dead body until the enquiry is made in this respect. Subsequently, he informed the Choukidar, who had been deputed at burning ghat, to allow them to consign the dead body to flame. Meanwhile, one Pradeep Kumar Agrawal (P.W.2), younger brother of Om Prakash Agrawal (P.W.7) sent a letter to the informant Bundi Sah (P.W.3) intimating therein about the death of Pushpa Devi. Subsequently, he informed the Choukidar, who had been deputed at burning ghat, to allow them to consign the dead body to flame. Meanwhile, one Pradeep Kumar Agrawal (P.W.2), younger brother of Om Prakash Agrawal (P.W.7) sent a letter to the informant Bundi Sah (P.W.3) intimating therein about the death of Pushpa Devi. On getting this information, the informant Bundi Sah (P.W.3) came to the Mohanpur Police Station and gave his Fardbeyan (Ext.3) on 5.6.1986 alleging therein that the accused persons on account of non-fulfillment of demand of dowry had been subjecting the deceased to torture and ultimately they committed her murder. On the basis of said report, a formal first information report (Ext.4) was drawn and one Surendra Singh (P.W.11) took up for investigation and came to the burning ghat from where pieces of burnt bones iron bangles and other articles were seized under seizure list (Ext.5). In course of investigation, two letters, one being the letter written by the deceased to her father (Ext.2) and the other being a letter under which Pradeep Kumar Agrawal (P.W.2) had informed to the informant about the death of the deceased (Ext.2/1) were produced by the informant Bundi Sah (P.W.3) to the Investigating Officer(P.W.11), which were seized under seizure list (Ext.6). On completion of investigation, police submitted charge sheet against the appellants and other accused persons including one B.K.Choudhary of Mohanpur police station, upon which cognizance of the offence was taken and in due course, when the case was committed to the court of sessions, charges were framed to which the appellants pleaded not guilty and claimed to be tried. The prosecution in order to bring the charges home has examined altogether 13 witnesses. Of them, Pradeep Kumar Agrawal (P.W.2), younger brother of Om Prakash Agrawal (P.W.7), Sharda Devi (P.W.4), elder sister of the deceased and wife of Om Prakash Agrawal (P.W.7) have testified that when they came to know that dead body of Pushpa Devi had been brought to burning ghat for consigning her to flame, they came at the burning ghat and saw the appellants and other accused persons over there, who were engaged in getting the dead body consigned to flame. P.W.3 Bundi Sah has testified about the demand of dowry by the appellants and subjection to cruelty by them to the deceased. P.W.3 Bundi Sah has testified about the demand of dowry by the appellants and subjection to cruelty by them to the deceased. The trial court believing the testimonies of the witnesses and taking into account the conduct of the appellants did find them guilty for the charges levelled against them. However, other accused persons were acquitted. Being aggrieved with the judgment of conviction and order of sentence, the appellants have preferred this appeal. Learned counsel appearing for the appellants submits that the appellants have been convicted for the offence of dowry death as the appellants have been alleged to have caused dowry death to the deceased on 3.6.1986 whereas provision of Section 304 B came into force with effect from 19.11.1986 and thereby the trial court committed grave illegality in law by recording the order of conviction and sentence under section 304 B of the Indian Penal Code and on this score alone, the judgment under appeal is fit to be set aside. Learned counsel appearing for the appellants further submits that the deceased was never done to death on account of nonfulfillment of demand of dowry, rather she died of diarrhea and, therefore, when the dead body was being taken to burning ghat for its cremation, an information was given to Om Prakash Agrawal (P.W.7) who is the husband of the elder sister of the deceased but he made complain to Mohanpur Police Station, upon which one Ashok Rajak, ASI came over there who forbade the appellants from consigning the dead body of Pushpa Devi to flame until enquiry is made. The said ASI, Ashok Rajak (P.W.12) on making enquiry when came to know that it is not a case of dowry death, allowed the appellants to consign the dead body to flame and all these facts go to show the innocence of the appellants. Heard learned counsel appearing for the State also. Having heard learned counsel appearing for the parties and on perusal of the record, we do find from the evidence of Om Prakash Agrawal (P.W.7) that while he was returning from temple, he was told by one person that Pushpa Devi has died and is being taken to burning ghat for cremation. Heard learned counsel appearing for the State also. Having heard learned counsel appearing for the parties and on perusal of the record, we do find from the evidence of Om Prakash Agrawal (P.W.7) that while he was returning from temple, he was told by one person that Pushpa Devi has died and is being taken to burning ghat for cremation. Upon which Om Prakash Agrawal (P.W.7) asked Deo Narayan Mirdha (P.W.9) a Choukidar not to allow the appellants to consign the dead body of Pushpa Devi to flame and then, Om Prakash Agrawal (P.W.7) proceeded to police station to inform about the occurrence. On getting this information, Deo Narayan Mirdha (P.W.9) came to the burning ghat. Subsequently, one ASI, Ashok Rajak of Mohanpur Police Station also came and asked Deo Narayan Mirdha not to allow the accused persons to consign the dead body to flame until enquiry is made by him. It further transpires from the evidence of Deo Narayan Mirdha (P.W.9) that Ashok Rajak after sometime sent an information for allowing the appellants to consign the dead body to flame as the deceased has died due to diarrhea. This fact has also been divulged by P.W.6 who has testified that he was told at the burning ghat that the deceased had died due to diarrhea. At the burning ghat, as per the evidence of P.W.9, 30-40 villagers had come for cremation which fact also does indicate about the innocence of the appellants as had the accused persons committed dowry death, they would have tried to dispose of the dead body surreptitiously. Under this situation, the prosecution cannot be said to have proved the factum of causing death to the deceased. Further we do find that the appellants have been alleged to have caused death to the deceased on 3.6.1986 on which date the offence under section 304B of the Indian Penal Code was not on the statute as this has been inserted in the Indian Penal Code by Act 43 of 1986 which has come into force with effect from 19.11.1986. In these view of the matter, the trial court has certainly committed grave illegality in holding the appellants guilty for the offence of ‘dowry death’ and therefore, the judgment under appeal is fit to be set aside. Accordingly, it is hereby set aside. In these view of the matter, the trial court has certainly committed grave illegality in holding the appellants guilty for the offence of ‘dowry death’ and therefore, the judgment under appeal is fit to be set aside. Accordingly, it is hereby set aside. Consequently, all the appellants are acquitted of the charges levelled against them and are discharged from the liability of the bail bonds. In the result, this appeal is allowed. (Amareshwar Sahay, J.)