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2009 DIGILAW 847 (JHR)

Anil Mahto v. State of Jharkhand

2009-05-27

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.-This appeal has been preferred by the appellants against the• judgment of conviction and the order of sentence dated 21.9.2001 passed by Shri Sharang Dhar Singh, learned 5th Additional Sessions Judge, Dhanbad in S.T. No. 159/1999. 2. By the impugned judgment the three appellants; namely, Anil Mahto, Sonia Devi and Hublal Mahto have been convicted under Sections 304B/201 IPC. The appellants Anil Mahto and Hublal Mahto have been sentenced to undergo life imprisonment under Section 304B IPC and R.I. for three years under Section 201 IPC, whereas the appellant No.2 (Sonia Devi) has been sentenced to undergo R.I for .10 years under Section 304B IPC and R.I. for three years under Section 201 IPC. They have also been sentenced to pay the fine of Rs. 5,000/- each and in default of payment to undergo R.I. for one year. 3. The prosecution was launched on the basis of the written information dated 27.12.97 of Dharmu Mahto-informant-father of the deceased lady. 4. The prosecution case, in brief, is that the informant's daughter Somri Devi was married with the appellant No.1 (Anil Mahto) in the month of Baisakh in the year 1996. After some time Anil Mahto demanded a motorcycle and the appellant Nos. 2 & 3 demanded cash as dowry. Somri Devi used to say that she was being tortured physically also for dowry by the appellants. Subsequently, the informant got information that her daughter was murdered by the appellants on 23.12.1997 and her dead body was also cremated in order to conceal the evidence. When he got the said information, he went to the village of the appellants and the villagers Surya Kant Mahto, Birender Mahto and Nirmal Mahto disclosed that his daughter was murdered on 23.12.97 and her dead body was also disposed of in order to disappear the evidence. 5. On the basis of the said written report, the police registered a case under Sections 304B/201 IPC against the accused appellants and after conclusion of investigation. police submitted charge-sheet under Sections 304B/201 IPC against the appellants. 6. Charges under Sections 3048/201 IPC were framed against the accused appellants. They denied the charges and claimed to be tried. They were put on trial. They pleaded not guilty and submitted that they have been falsely implicated. The deceased Somri Devi died due to prolonged illness and the allegations against them are false. 7. 6. Charges under Sections 3048/201 IPC were framed against the accused appellants. They denied the charges and claimed to be tried. They were put on trial. They pleaded not guilty and submitted that they have been falsely implicated. The deceased Somri Devi died due to prolonged illness and the allegations against them are false. 7. The prosecution in order to establish the said charges against the appellants altogether examined five witnesses. PW-1-Suryakant Mahto is a co-villager of the appellants. PW-2-Dhiran Mahto and PW-3-Nirmal Kumar Mahto are neighbours and the co-villagers of the appellants. However, they have not supported the prosecution case and they were declared hostile. PW-4-Dharmu Mahto is the informant and PW-5-Shri Prasadi Yadav is the I.O. a. On behalf of the defence Mangal Mahto has been examined as DW-1 to support the defence version that the deceased Somri Devi died due to illness and the allegations against the appellants are false and concocted. 9. Learned Trial Court on conclusion of trial held the appellants guilty of the charges under Sections 3048/201 IPC. He relied on the testimony of PW-1, PW-4 and PW-5 and held that the prosecution has been able to prove all the ingredients constituting the offence under Sections 304-B IPC and proved that Somri Devi died in abnormal circumstances. She died within two years of her marriage, she was being subjected to harassment and cruelty by her husband and in-laws. 8efore the alleged night of her death, she was subjected to cruelty by her husband in connection with demand of dowry. After causing the death of Somari Devi, the accused appellants cremated the dead body to destroy the evidences. Learned Court below thus convicted and sentenced them, as aforesaid. 10. Learned counsel for the appellants have assailed the said judgment of the Court below and submitted that the entire allegation is concocted and baseless and the appellants have been falsely implicated after the death of Somri Devi, who died due to illness. The prosecution has miserably failed to establish the charges against the appellants by any positive and admissible evidence and learned Court below has based his finding of conviction on assumptions and conjectures. There is no cogent evidence to prove the said. charges against the appellants. No independent witness had supported the prosecution case and there is vital contradiction in the testimony of the prosecution witnesses. There is no cogent evidence to prove the said. charges against the appellants. No independent witness had supported the prosecution case and there is vital contradiction in the testimony of the prosecution witnesses. There is no legal basis on record to hold the appellants guilty of the charge under Sections 304B/201 IPC. Learned counsel further submitted that none of the prosecution witnesses has proved any bodily injury on the person of the deceased. There is no allegation of causing any bodily injury on the person of the deceased or causing her death by subjecting her to cruelty in connection with any demand of dowry. Since there is no such allegation or there is no allegation of cruelty by her husband relating to the demand of dowry as the imminent cause of death, the offence under Section 304B is not constituted and the said charges are not sustainable. There is no evidence on record to establish that there was demand of dowry or there was harassment or torture on the deceased before her death. The prosecution has failed to establish the said ingredient and to make out a case of 304B IPC against the appellants. On perusal of the evidence of the PW-1, it is evident that he has not uttered a word regarding the demand of dowry or cruelty or harassment relating to such demand or any connection with the said demand of the death of the deceased. PW-2 and PW-3, who are the close co- villagers and the neighbours of the appellants, have not supported the prosecution case and they have been declared hostile. PW-4 is the father of the deceased lady. He failed to prove that there was any demand of dowry and there was any torture and harassment relating to the said demand before the death of the victim lady. He had not supported that any demand of dowry was ever made from him, but has stated that her daughter used to say that her husband and in-laws were demanding a motorcycle and cash as dowry. PW-5 is the I.O. He had also not proved that the death of the victim lady was caused due to torture and harassment relating to the demand of dowry. Learned counsel submitted that the question relating to the circumstances which have been used for convicting all the appellants were not put to them. PW-5 is the I.O. He had also not proved that the death of the victim lady was caused due to torture and harassment relating to the demand of dowry. Learned counsel submitted that the question relating to the circumstances which have been used for convicting all the appellants were not put to them. The appellants have remained in custody for about a decade for their no fault. Thus, the judgment of conviction and the order of sentence passed by the Court below suffer from serious legal infirmities and are not sustainable. 11. Learned A.P.P. on the other hand, submitted that learned Trial Court has properly considered the evidences on record and after thorough appraisal and discussion of the evidences has held the appellants guilty of committing murder of Somri Devi by torturing her for not brin9ing a motorcycle and cash as dowry from her father's house. He submitted that there is no infirmity in the impugned judgment and no interference of this Court is warranted. 12. Having heard learned counsel for the appellants and learned A.P.P. we have scrutinized the evidences on record. On perusal of the evidences of the prosecution witnesses, we find that out of the five witnesses produced by the prosecution, PW-2 and PW-3, who are the independent witnesses, have not supported the prosecution case and they have been declared hostile. PW-1 is another co-villager and he has not whispered anything regarding of the demand of dowry or harassment or cruelty on the deceased relating to the said demand. PW-4, who is the father of the deceased lady, has also stated in paragraph 1 of his deposition that her I, daughter used to say that she was being tortured and harassed for bringing a motorcycle and cash as dowry. On perusal of his deposition. we find that there is no assertion or statement of any demand made from him by any body. No particulars of demand and details thereof have been given by this witness. He has also not proved the fact of any demand of dowry or bodily injury on the deceased or any torture or harassment on the deceased connection with any demand of dowry soon before her death. No particulars of demand and details thereof have been given by this witness. He has also not proved the fact of any demand of dowry or bodily injury on the deceased or any torture or harassment on the deceased connection with any demand of dowry soon before her death. The I.O.-PW-5 also has not brought anything on record to prove any demand of dowry or any bodily injury on the deceased or any cruelty and harassment on the deceased by the appellants in connection with any demand for dowry before her death. In order to establish the charge of dowry death under Section 304B IPC, the prosecution has to prove that the death of a woman has been caused by any burns or bodily injury or has occurred otherwise than under normal circumstances within seven years of her marriage and also the fact that soon before her death the victim was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. In case of Sham Lal vs. State of Haryana [ AIR 1997 SC 1873 ] it has been held that it is imperative for invoking the legal presumption under Section 113B of the Evidence Act to prove that "soon before her death" the deceased was subjected to cruelty or harassment. 13. On careful appraisal of the evidences, we find that neither there is any allegation nor there is any material on record to prove that soon before the death of the deceased she was subjected to cruelty or harassment in connection with any demand of dowry. In order to invoke the presumption under Section 113B of the Evidence Act, it must be proved by legal evidence that soon before the death of the deceased she was subjected to cruelty or harassment which is conspicuously missing in the instant case. There is no whisper of any cruelty or harassment in connection with any demand of dowry soon before the death of Somri Devi. Learned Trial Court has failed to fake into consideration the said aspect of the matter and has erroneously applied the said legal presumption in holding the appellants guilty of causing the death of Somri Devi without any cogent and positive evidence to support the said allegation. Learned Trial Court has failed to fake into consideration the said aspect of the matter and has erroneously applied the said legal presumption in holding the appellants guilty of causing the death of Somri Devi without any cogent and positive evidence to support the said allegation. Further, we find that though the conviction of the accused-appellants is based on the allegation that the victim was tortured and subjected to cruelty or harassment in connection with the demand of dowry soon before her death, but no question regarding the said circumstance was put to the accused appellants in their examination under Section 313 Cr.P.C. In Rattan Singh vs. State of Himachal Pradesh [ AIR 1997 SC 768 ] the Apex Court has held that the examination of the accused under Section 313 Cr.P.C. is not a mere formality. The examination under Section 313 Cr.P.C. is intended for affording an opportunity to the accused persons to explain the incriminating circumstances against them. In the instant case the 'Court below has also failed in appreciating the entire evidence as also in holding proper examination of the accused appellants under Section 313 Cr.P.C. In Ajay Singh vs. State of Bihar [ (2007)12 SCC 341 ] the Supreme Court has held that the conviction based on circumstance is bad in law and cannot sustain, if the question relating to that circumstance was not put to the accused and no opportunity of explaining the said circumstance was afforded to the accused. 14. In view of the above discussions, we find no ground to uphold the impugned judgment of conviction and the order of sentence passed against the appellants by the Court below. The impugned judgment of learned Trial Court is not based on any legal evidence and the same is contrary to the established legal principles and provisions and the same is not sustainable. 15. In the result, we allow this criminal appeal. The appellants are acquitted of the charges levelled against them. The impugned judgment of conviction and the order of sentence dated 21.9.2001 passed against the appellants by Sri Sharang Dhar Singh, learned 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 159/ 1999 are set aside. The appellant No.1 (Anil Mahto), who is said to be in custody for about more than 10 years, is ordered to be set at liberty forthwith, if not wanted in any other case. Since the appellant Nos. The appellant No.1 (Anil Mahto), who is said to be in custody for about more than 10 years, is ordered to be set at liberty forthwith, if not wanted in any other case. Since the appellant Nos. 2 & 3 are said to be on bail, they are discharged from the liabilities of their respective bail bonds.