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Jharkhand High Court · body

2009 DIGILAW 946 (JHR)

Kauleshwar Mahto v. State of Jharkhand

2009-07-09

PRADEEP KUMAR

body2009
JUDGMENT By court: On repeated calls, nobody appears on behalf of the appellants. In that view of the matter, on the request of the court, Shri Tapas Roy assisted the court as ‘Amicus Curie’ on behalf of the appellants. 2. This appeal is directed against the judgment of conviction dated 17.01.2002 and order of sentence dated 19.01.2002 passed by Shri Ravindra Prasad Ravi, Additional Sessions Judge, Hazaribagh in Sessions Trial No. 444 of 1995, by which judgment, he found both the accused guilty for the offence under Sections 304B read with Section 34 of the Indian Penal Code. He convicted the appellants and sentenced them to undergo rigorous imprisonment for ten years. 3. It appears that the Prosecution case was started on the basis of a fardbeyan given by the father of the deceased, namely Mohan Mahto (P.W.6), who stated on 05.07.1995 that his daughter, Rusha Devi, aged about 23 years, was married with the accused, Kauleshwar Mahto S/o Guli Mahto three years back according to Hindu Marriage Act. After marriage, his daughter was living at her ‘sasural’ and she used to come to her ‘naihar’ twice or thrice a year. One month back, when she came to her sasural, she stated that her husband and her father-in-law, both are demanding Rs. 5000/-and a loudspeaker and they were continuously harassing and assaulting her. Since, he was a poor man and he was not able to give Rs. 5,000/-, he came to his daughter’s ‘sasural’ and asked his son-in-law that he will fulfill his demand in future, and then he left with his daughter. It is stated that on 04.07.1995, his son-in-law, Kauleshwar Mahto came and stated that his daughter, Rusha Devi has got fit of ‘mirgi’, then the informant alongwith his wife, Simti Devi, elder brother, Sabir Mahto and his nephew Jagan Mahto went to her daughter’s ‘sasural’ and found her dead. On enquiry, he came to know that she died on 04.07.1995 at about 2 P.M. On physical examination of the dead body of the deceased, it appears that there is a mark of strangulation on her neck and her face was swollen, which clearly shows that she was strangulated to death by the accused persons for not giving the money and loudspeaker, as dowry, as demanded by the accused persons. 4. 4. On the basis of the said fardbeyan, police registered a case under Sections 304(B)/34 of the Indian Penal Code and after investigation police submitted a charge sheet against the accused persons under the aforesaid sections. 5. Since, the case was exclusively triable by the court of Sessions, learned magistrate, after taking cognizance, committed the same to Court of Sessions and the case was transferred to the Court of Additional Sessions Judge for trial and lastly the case was tried by the 8th Additional Sessions Judge, Hazaribagh, who found the appellants guilty under Section 304(B)/34 of the Indian Penal Code and convicted and sentenced them thereunder as aforesaid. 6. It is submitted by the learned counsel for the appellants, who appeared as Amicus Curie for the appellants, that as far as the appellant No.2, Guli Mahto is concerned, there is no evidence that he was present in the house on 04.07.1995 when it is stated that the victim girl died. There is no direct evidence that he (Guli Mahto) was demanding Rs. 5,000/-and a loudspeaker for himself because it has come in the evidence of prosecution witnesses that the appellant No.2, Guli Mahto, who is aged about more than 50 years, was working at C.C.L., Giddi Washri as operator, Category-IV and he does not require any loudspeaker for himself. His son, Kauleshwar Mahto, who had no occupation, was demanding a loudspeaker and Rs. 5,000/-to earn his livelihood and, as such, the conviction of appellant No.2, Guli Mahto is bad in law and fit to set aside. 7. On the other hand, the learned counsel for the State has opposed the prayer of the counsel for the appellants and submitted that all the witnesses have supported that both, the father and the son, were demanding Rs. 5,000/-and a loudspeaker from the victim girl and they used to torture the victim girl, who was lastly done to death. 8. After hearing learned counsels for both the parties and after going through the evidences on record, I find that the prosecution has examined as many as 12 witnesses and out of these 12 witnesses, P.W.1, Madhusudan Prasad is a formal witness, who has proved the signature of the Investigating Officer as Ext.1 of the fardbeyan, P.W.2, Dr. 8. After hearing learned counsels for both the parties and after going through the evidences on record, I find that the prosecution has examined as many as 12 witnesses and out of these 12 witnesses, P.W.1, Madhusudan Prasad is a formal witness, who has proved the signature of the Investigating Officer as Ext.1 of the fardbeyan, P.W.2, Dr. Suresh Kumar Sinha is a doctor, who conducted the postmortem examination on the dead body of the deceased, P.W.3, Jetha Munda and P.W.4, Lalka Munda are hostile witnesses and they have not supported the prosecution case. P.W.5, Nageshwar Mahto, P.W.6, Mohan Mahto, P.W.7, Sitli Devi, P.W.8, Jagan Mahto, P.W.9, Salik Mahto and P.W.10, Ashok Mahto all have supported the prosecution case, as given in the fardbeyan, by the informant, P.W.6, Mohan Mahto. 9. It is important to note that the defence has also examined four witnesses, in which, D.W.1, Manager Munda and D.W.2, Brijraj Singh are the witnesses on the point that the appellant No.2, Guli Mahto was on duty at the Giddi Washri at the time of occurrence and there is no question of him committing any offence on the deceased. D.W.3, Manoj Kumar Keshri and D.W.4, Dr. Yogendra Prasad Verma are on the point that the deceased, Rusha Devi was suffering from ‘mirgi’ and the doctor, who examined the deceased had asked the accused to show her to one Dr. K.K. Sinha. 10. The main evidence is that all the witnesses i.e. the informant, P.W.6, Mohan Mahto, P.W.7, Sitli Devi and P.W.8, Jagan Mahto have supported the F.I.R. and submitted in court that the daughter of the informant was married with the Kauleshwar Mahto S/o Guli Mahto, who is their ‘samdhi’. The informant stated that after the marriage, his daughter used to live in her sasural happily, and subsequently, they have started demanding Rs. 5,000/-and a loudspeaker and started assaulting and torturing his daughter and finally his daughter died. It is also stated that she was married three years before her death. It is stated that on date of occurrence, Kauleshwar Mahto came and informed that she had got an attack of ‘mirgi’. Then, on the next day, at about 10 A.M., when he went to her daughter’s sasural alongwith his wife, elder brother and nephew, he found his daughter dead. It is stated that on date of occurrence, Kauleshwar Mahto came and informed that she had got an attack of ‘mirgi’. Then, on the next day, at about 10 A.M., when he went to her daughter’s sasural alongwith his wife, elder brother and nephew, he found his daughter dead. There was a mark on her neck and her tongue was also protruded and then he lodged his F.I.R. He proved his fardbeyan as Ext.1/2. In his cross examination, he stated that after her marriage, she went to her sasural and spent four months and then she came back to her ‘naihar’ and stayed there for some time and then came back to her ‘sasural’ and after that a demand of Rs. 5,000/-and a loudspeaker started and they started assaulting and torturing his daughter. One month before, she came to her ‘maike’ and stated that she was being tortured and assaulted for not fulfilling the demand of Rs. 5,000/-and a loudspeaker. The wife of the informant was also present at the time of this statement. Subsequently, his son-in-law came and took his daughter back to her sasural, and thereafter, his son-in-law came to victim’s ‘maike’ and said that an attack of ‘mirgi’ has taken place to her. Then, the informant went there alongwith his wife, elder brother and nephew and found her dead. 11. P.W.7, Sitli Devi has also supported the statement of P.W.6, Mohan Mahto and stated that the victim girl was married with the accused, Kauleshwar Mahto just three years before her death. She stated that the accused, Kauleshwar Mahto and Guli Mahto used to assault her daughter for not giving dowry of Rs. 5,000/-and a loudspeaker, but she has sent her daughter to the sasural after asking her son-in-law not to do so. Subsequently, Kauleshwar Mahto came and informed that her daughter has got an attack of ‘mirgi’. Then, she went on her sasural alongwith her husband and nephew and found her daughter dead. She also stated that there was a mark on her neck and her tongue was protruded, which shows that she was done to death by the accused persons. In her cross examination, at Para 2, she stated that after marriage, she stayed for about four months, thereafter, she came to her ’maike’ and stayed there for about one month and then she came back to her sasural. In her cross examination, at Para 2, she stated that after marriage, she stayed for about four months, thereafter, she came to her ’maike’ and stayed there for about one month and then she came back to her sasural. Thereafter, they started torturing her daughter for not giving dowry of Rs. 5,000/-and a loudspeaker. 12. P.W.8, Jagan Mahto has proved his signature on the fardbeyan as Ext. 1/3. He stated that he went to see the victim girl with his uncle and aunty, and found that she was dead and her neck was swollen with injuries and her tongue was protruded. He came to know that the accused, Kauleshwar Mahto was demanding Rs. 5,000/-and a loudspeaker, for that, he used to torture his sister. 13. P.W.9, Salik Mahto has also stated in the court that Rusha Devi is his niece, who was married with the accused, Kauleshwar Mahto. She died about four years back, which, he was informed by his brother. Then, he went to her sasural to see her dead body. There was a mark of injury on her neck and her neck was swollen. P.W.10, Ashok Mahto stated that the deceased Rusha Devi is his sister and she was married with the accused Kauleshwar Mahto and she died just three years after her marriage and after hearing about her death, he went to her sasural and found injuries on her neck. P.W.5, Nageshwar Mahto has also stated in the court that the deceased, Rusha Devi was his cousin sister and the deceased was married with the accused Kauleshwar Mahto S/o Guli Mahto and she died just three years after her marriage. He stated that her in laws used to assault her for not bringing dowry and on hearing about her death, he went to see her dead body, where he saw that the victim girl had got black mark on her neck. He also stated that the informant, Mohan Mahto gave his statement to the police in his presence. He also signed under the statement and proved his signature. 14. The doctor P.W.2, Dr. Suresh Kumar Sinha, who examined the dead body of the victim girl, found that the dead body was decomposed and maggots had appeared on the body. The tongue of the victim girl was protruded and on her neck, maggots and bulks have appeared. He also signed under the statement and proved his signature. 14. The doctor P.W.2, Dr. Suresh Kumar Sinha, who examined the dead body of the victim girl, found that the dead body was decomposed and maggots had appeared on the body. The tongue of the victim girl was protruded and on her neck, maggots and bulks have appeared. On dissection, the doctor found her Viscera, her liver, spleen, kidneys and lungs found intact and congested. He sent the Viscera for chemical examination report and reserved his opinion, but no chemical examination report was received. 15. After going through the evidences of the witnesses, I find that the allegation made on F.I.R. that the victim girl was done to death for non-fulfillment of demand of dowry is fully proved and supported by them. All the evidences have stated against the claim of the accused, Kauleshwar Mahto that she had an attack of ‘mirgi’. They all found the injury on her neck and her tongue was protruded. The doctor, P.W.2, also found that her tongue was protruded and black mark appeared on her neck and it seems that she might be done to death by the accused. Since, it appears from the F.I.R. itself that on the date of her death i.e on 04.07.1995, this accused, Kauleshwar Mahto went to his sasural in the evening and informed them that the victim girl has got the attack of ‘mirgi’ but when the informant and the witnesses went to her ‘sasural’ they learnt that on 04.07.1997 at about 7 P.M. itself, the victim girl had died. 16. Thus, as far as, appellant, Kauleshwar Mahto is concerned, I find that there is sufficient evidence against him and the prosecution has proved beyond reasonable doubt that he committed dowry death to the deceased-wife, Rusha Devi and has rightly been convicted under Section 304B/34 of the Indian Penal Code. 17. However, as far as his father, Guli Mahto is concerned, although there is evidences of the witnesses P.Ws. 6 and 7 that he was also demanding dowry of Rs. 17. However, as far as his father, Guli Mahto is concerned, although there is evidences of the witnesses P.Ws. 6 and 7 that he was also demanding dowry of Rs. 5,000/-and a loudspeaker, but the defence witnesses namely D.W.1, Manager Munda and D.W.2, Brijraj Singh stated that he was an employee of Giddi Washri and they also stated that on the date of occurrence i.e. on 04.07.1995, he was working in the time section and on that date the accused, Guli Mahto was on duty from 2 P.M. to 10 P.M. in the night. He also produced the duty chart and produced a certificate also, which was granted by the Personnel Manager, Giddi Washri, which was marked as Ext. A. The certificate at Ext. A shows that the appellant, Guli Mahto was working in the Central Coalfields Limited, which is a central undertaking and he was getting the handsome salary. There was no need that he will require a loudspeaker for himself, which shows that the loudspeaker was not demand by him and this demand was made by his son, Kauleshwar Mahto. He tortured his wife, since, it appears from Ext. A that the appellant, Guli Mahto was on duty on 04.07.1995 from 2 P.M. at Giddi washri at a distance from his house and he must have left his house by 10 O’clock to reach there and it appears that the victim girl was done to death at about 2 P.M. In that view of the matter, he deserves to get the benefit of doubt in the case. He alongwith his son has also suffered in the trial and they have remained in jail. 18. In that view of the matter, the appellant, Guli Mahato is given the benefit of doubt and acquitted from the charges levelled against him. 19. In the result, the appeal is allowed in part and the finding of conviction and sentence passed against the accused, Kauleshwar Mahto is sustained, while that of the accused, Guli Mahto is set aside and he is given the benefit of doubt and acquitted from the charges. 20. It appears that during the trial and even during the period of appeal, the appellant, Kauleshwar Mahto has remained in jail and probably he might have completed his ten years of sentence. The learned trial court will verify the same. 20. It appears that during the trial and even during the period of appeal, the appellant, Kauleshwar Mahto has remained in jail and probably he might have completed his ten years of sentence. The learned trial court will verify the same. Then only, learned trial court will issue the warrant of arrest against him for serving out the sentence. 21. Accordingly, this appeal is allowed in part.