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2010 DIGILAW 849 (JHR)

Rewa Sao @ Rewa Sah v. State of Jharkhand

2010-09-01

PRADEEP KUMAR

body2010
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the State. 2. The instant appeal is directed against the judgment of conviction dated 8.7.2002 and order of sentence dated 9.7.2002 respectively passed in S.T. No.211 of 1992 by Shri Sanjay Kumar Chandhariyavi, Additional Sessions Judge, FTC-II, Hazaribagh, by which judgment he found the appellant guilty under Section 304B of the I.P.C. and. sentenced him to undergo R.I. for ten years. 3. It is submitted by learned counsel for the appellant that there is no allegation that victim lady was subjected to torture for any demand of dowry. The witnesses have not stated that the time of marriage or thereafter, any demand of dowry was made. The informant has said that before Karma festival they wanted Goat (Khasi) and Ox. Learned counsel for the appellant submits that it cannot be connected with dowry rather it was just customary demand for that also there is no allegation that she was being tortured. In that view of the matter, he is relying upon the judgment of Hon'ble Supreme Court in the case of Sunil Bajaj vs. State of M.P. reported in 2001 SAR (Criminal) 856 in which it is stated that for conviction under Section 3048 of the Indian Penal Code the requirements of Section 304B of the IPC must be fulfilled. Accordingly, he submits that conviction of the appellant under Section 304B of the Indian Penal Code is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the State has supported the prosecution case and submitted that the victim lady died within seven years of her marriage and there is allegation of demand of Goat and Ox as dowry and she was not allowed to go back .to her naihar, which is tortured and subsequently, she died due to unnatural death, as such, finding is well founded. 5. After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of written report given by the P.W. 4, Bisheshwar Sao (informant) on 20.11.1990, stating therein that his sister was married two years back with Rewa Sao @ Rewa Sah S/o Shri Khusi Sao and after marriage his sister was living in her sasural (Napozala). After one year his brother-in-law came to his house Teliya Bengwani and he demanded Goat (Bakri) from him. In the Karma festival he (informant) went to sasural of his sister and wanted to take her back, but she was not allowed to go back, subsequently he sent a Goat to house of his sister. On 20.11 .1990 in the morning he came to know that his sister had been died. He suspected that she has been done to death in some conspiracy between her husband and father-in-law because accused was demanding Goat and Ox and since, the same was not given, they administered poison to her. 6. On the basis of the said fardbeyan, police registered a case under Section 304B of the Indian Penal Code and after investigation, police submitted charge-sheet in the case. Since, the case was exclusively triable by the Court of Sessions, after taking cognizance learned Magistrate committed the case to the Court of Sessions and subsequently, the case was tried by learned Additional Sessions Judge, FTC-II, Hazaribagh, who found the appellant guilty under Section 304B of the I.P.C. and sentenced him as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as five witnesses. P.W. 1, Lal Bihari Sao. P.W. 2, Ramdeo Sao. P.W. 3, Kailash Sao. P.W. 4, Bisheshwar Sao, the informant of the case. P.W. 5, Trivani Ram. a formal witness. P.W. 1, Lal Bihari Sao, is uncle of deceased, he stated that his niece (Nagia Devi) was married with the accused 7 years back and she lived with her husband in her house for one year and they kept her well. Subsequently, after one year his son-in-law Rewa Sao demanded Ox and Goat from his nephew in Karma Puja when his nephew went to bring his sister, but she was not allowed to go back. After Karma Puja his nephew sent a goat to the house of his sister and said that he is not able to give a Ox. After two months they received information that Nagia Devi has died, thereafter he went alongwith other to her house, where he found her dead body and from her nose and ear blood was oozing out, but he could not say that how she died. After two months they received information that Nagia Devi has died, thereafter he went alongwith other to her house, where he found her dead body and from her nose and ear blood was oozing out, but he could not say that how she died. In his cross-examination he stated that even after one year of her marriage, she was never assaulted in her-in-laws house nor any cash was demanded. P.W. 2, Ramdeo Sao, is uncle of deceased, he stated in Court that Nagia Devi was his niece and she was married with the accused 7 years back and they kept her properly for one year. Thereafter, there was a demand of a Goat and Ox. Two-three months before her death, Bisheshwar Sao went to take his sister, but Rewa Sao refused because lot of work was pending in his house Subsequently, they got information on 20.11.1990 that his niece has died. Thereafter, they went to her house, where they found her dead body and froth from her mouth and blood was oozing from her nose, but he cannot say that how she died, but it appears that poison was administered to her. Although, in his cross-examination he stated that Ox is not given then niece will be assaulted and killed, but he admitted that no FIR was made about the threat and assault given by them. He also in his cross-examination stated that when we reached to the house of accused then on the request of Mukhia and Sarpanch the dead body was taken to police station thereafter dead body was sent for post mortem \ by the police to Hazaribagh and after postmortem, body was given to them then they performed her last rites, but he cannot said that how she died. P.W. 3, Kailash Sao, is uncle of the deceased, stated that she was married 7 years back and said that till one year of her marriage there was no fight between the accused and his niece, but after one year there was demanding of a Goat and a Ox and on the eve of Karma festival informant had gone to bring her sister, she was not allowed to come and after two months they got information that she died. He also admitted that the body of the deceased was sent for postmortem by the police. He also admitted that the body of the deceased was sent for postmortem by the police. P.W. 4, Bisheshwar Sao, the informant of the case, he supported the statement given in the FIR and stated that for one year she was kept properly by the accused persons, but after one year there was demand of a Goat and a Cow. Subsequently, he had given a Goat, but he was incapable to give a Cow immediately and so he had given assurance for Cow that I will give after two years. After one month he got information that his sister is admitted in hospital and she is not well, but when he reached in her sasural he found her dead body and. froth from her mouth and blood was oozing from her nose. He knew from villagers that they had not given food to her before three days and beat her and administered poison to her, he proved his signature on FIR as Ext.-1/1, in his cross-examination he admitted in fardbeyan that she had said that they used to pressurizea for Goat and Ox. P.W. 5, Trivani Ram, a, formal witness, who has proved the formal F.I.R. and fardbeyan. 8. Thus, from the evidences of wit- ' nesses it is apparent that there is no allegation that the victim lady used to torture by her in-law for any dowry rather all the witnesses have stated that for one year there was no demand of anything nor she was ever tortured by her in-law, even after one year although there was demand of Ox and Goat, but it cannot be said that the same was related to dowry. The informant stated that he had gone to bring her sister before Karma Festival but she was not allowed to come back because he had not been Ox, but one of the uncle (P.W. 2, Ramdeo Sao) stated that she was not allowed to come back because there was lot of work in her sasural although prosecution has alleged that she was administered poison or she was assaulted, but in the absence of medical report or even the post mortem report it is difficult to find it was unnatural death due to poison or due to assault and it is difficult to say that the victim died due to unnatural death or due to assault or poison. It is settled law by the Hon'ble Supreme Court that for making out a case of under Section 3048 of the Indian Penal Code for convictin'g the accused the prosecution must prove the following essential ingredient as held in the case of Sunil Bajaj VS. State of M.P. reported in 2001 SAR (Criminal) 856:- "(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) Such death must have occurred within 7 years of her marriage; (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) Such cruelty or harassment must be for or in connection with demand of dowry." In the instant case, there is no allegation that she died by burn or bodily injury nor there is evidence that she was subjected to cruelty or harassment by her husband or by relatives of her husband and such cruelty or harassment must be for or in connection with any demand of dowry rather P.W. 1, Lal Bihari Sao said that no cash was demanded. In that view of the matter, the conviction of the appellant under Section 3046 of the Indian Penal Code is bad in law and fit to be set aside. In the result the appellant is acquitted from the charges. 9. Accordingly, this appeal is allowed and judgment of conviction dated 8.7.2002 and order of sentence dated 9.7.2002 respectively passed in S.T. No. 211 of 1992 is set aside. Since, the appellant is on bail, he is released from the bondage of bail.