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2015 DIGILAW 1197 (PAT)

Janardhan Mandal v. State of Bihar

2015-09-14

GOPAL PRASAD

body2015
JUDGMENT : GOPAL PRASAD, J. 1. Heard learned for the appellants and learned counsel for the State. 2. This appeal arises out of the judgment of conviction and order of sentence dated 24.11.2011 passed by Shri Uma Shankar Dwivedi learned Additional Sessions Judge, F.T.C.-8, Purnea in Sessions Trial No. 490 of 2008 and 75 of 2008 (arising out of Tikapatti P.S. Case No. 01 of 2008) by which the appellant had been convicted for offence under Section 304-B and sentenced to undergo rigorous imprisonment for seven years and further the appellant had been convicted for offence 201 of Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and further payment of fine of Rs. 1000/- and in default of payment of fine further sentenced to simple imprisonment for one month. All the sentences were run concurrently. 3. The prosecution case as alleged in the written report by the informant Kishundeo Mandal alleging therein that his daughter Kiran Kumari was married with one Mukesh Kumar Mandal @ Mukesh Mandal, son of Janardan Mandal Resident of Village-Tintanga, P.S. Tikapatti, District- Purnea on 12.06.2005 and after the marriage the victim used to live at her sasural. Further case is that after six month of the marriage her father-in-law Janardan Mandal, mother-in-law Niriya Devi, Nandosi, Ambika Manda and Nanad Gita Devi started assaulting and abused for non-fulfillment of demand of dowry and they also used to threaten to bring money from her father else she will be killed and when the daughter of the informant feel that her in-laws were conspiring to kill her then she intimated the informant and on received of information, the informant engaged an Advocate of Katihar Civil Court and got noticed issued against in-laws of his daughter. Further case was that he had fulfilled the demand so that his daughter may remain in sausral happily, but demands of dowry of sasural people got increased. Further case is that one month prior to the occurrence, sasural people demanded Rs. 10,000, but the informant could not satisfy the demand then on 12.01.2008 at 7.00 A.M. he got information from an unknown person that his daughter Kiran Kumari had been killed and dead body was being taken to for disappearance of evidence of the offence to serve the offender. 10,000, but the informant could not satisfy the demand then on 12.01.2008 at 7.00 A.M. he got information from an unknown person that his daughter Kiran Kumari had been killed and dead body was being taken to for disappearance of evidence of the offence to serve the offender. Further case is that on receiving the said information he contacted one Sanjay Mandal who used to visit sasural of his daughter and when the informant enquired from Sanjay Mandal on telephone then he disclosed that daughter of the informant had been murdered. Then the informant went to the Village-Tintanga then he found that some unknown persons were present in the sasural and the entire house was vacant. On enquiry from the neighbourer, the dead body of the victim was not located and hence doubts had created that his daughter had been done to death under conspiracy by the accused persons for non-fulfillment of demand of dowry and then her dead body had been disposed of or concealed. 4. On Fardbeyan of the informant, the F.I.R. was lodged. Investigation proceeded and on completion of the investigation charge sheet submitted. Cognizance was taken and case was committed to the Court of Sessions. During trial, 12 witnesses were examined on behalf of the prosecution. Out of 12 witnesses, P.W.1 Upendra Mandal, P.W.2 Anil Mandal, P.W.3 Amrendra Kumar Mandal, P.W.4 Basudeo Mandal, P.W.5 Rajendra Mandal, P.W.6 Ajay Kumar Mandal, P.W.7 Bishundeo Mandal, P.W.8 Budhiya Devi, wife of Kishandeo Mandal, P.W.9 Kishandeo Mandal, P.W.10 Ram Balak Ram. P.W.11 Dinesh Mandal and P.W.12 Sita Ram Mandal. However, P.W.1, 2, 3, 4, 5, 6, 11 and 12 have been declared hostile and they have not supported prosecution case. However, P.W.7 Bishundeo Mandal, is full brother of the informant stated in his evidence that marriage of the victim Kiran Devi was solemnised in the year 2005 and after marriage she went to her sasural and remained there for six months and there demand of dowry was started by her in-law. He had further stated that demand was made for cycle and watch which was fulfilled but demand of Palang (bed) which had to be fulfilled after few days and further for non-fulfillment of demand of Palanh quarrel started by the sasural people. He has further stated that there was demand of pumping machine and ploughing machine and Rs. 10,000/-. He had further stated that demand was made for cycle and watch which was fulfilled but demand of Palang (bed) which had to be fulfilled after few days and further for non-fulfillment of demand of Palanh quarrel started by the sasural people. He has further stated that there was demand of pumping machine and ploughing machine and Rs. 10,000/-. However, in his cross-examination he has stated that some one stated that Kiran Devi had been murdered but none of the dead body had been seen and any none of the villagers had told that they had seen the dead body of Kiran Devi. P.W.8 Budhiya Devi, the mother of the victim-Kiran Devi had supported the prosecution case regarding marriage and there was quarrel between her daughter and her in-laws in connection with demand of dowry. Then cycle, watch and Rs. 10,000 was given as a dowry. Further this witness had stated that she learnt that her daughter had been murdered by her sasural people but when they went to her sasural, they could not be able to see the dead body of the victim and it was asserted that victim has been buried in the ground. This witness has stated that once upon a time her daughter had got burn injury by mosquito net, but she had not set on fire herself. P.W.9 is the informant had also supported the prosecution case and stated that marriage had solemnised in the year 2005 and marriage was performed 4-5 years back and accused persons under conspiracy had killed her daughter for non-fulfillment of demand of dowry. He asserted that victim was not missing but had murdered, though, he had not seen the dead body and he had not found the place where victim was buried. 5. Defence of the accused persons that victim had fled away from the house thrice prior to the occurrence and even after solemnizing of the marriage several times she fled away from the house of her sasural without intimation or permission and this case was instituted only on suspicion. 6. The trial court taking into consideration the evidence of witnesses convicted the appellants and sentenced as mentioned above. 7. 6. The trial court taking into consideration the evidence of witnesses convicted the appellants and sentenced as mentioned above. 7. Learned counsel for the appellants however challenged the order of conviction and sentenced and contends that there is no consistency of demand of dowry amongst the witnesses as some one says demand of money some one says demand of pumping set machine or ploughing machine, someone says demand of cycle and some one say there was demand of Rs. 10,000/-. So there is variation in evidence regarding the demand. There has not been mentioned that how witnesses learnt about demand and torture. Further it is contended that victim used to come to her Naihar along with husband, she used to get sasural along with her husband. P.W.9 in his evidence further stated in paragraph 15 that victim came to her naihar about 5-6 times along with her husband but she never made any complaint regarding demand and hence it has been contended that there is no cogent and reliable evidence regarding demand and subjecting cruelty. It has further been contended that notice was used to the appellants, but there was no specific mention when demand was made. It has further been contended that victim was said to be killed or is missing from the house, there is no cogent and reliable evidence to hold that victim was done to death much less there is no evidence about death of the victim was in suspicious circumstance. Further, there is no cogent and reliable evidence that soon before the death the victim was subjected to cruelty. Hence it is submitted that ingredients of Section 304(B) of Penal Code has not been established to take presumption of dowry death and hence prosecution has not able to establish the charges for offence under Sections 304(B) and 201 of Penal Code against the appellants. 8. Learned counsel for the State however contends that, though, P.Ws. 1 and 2 have been declared hostile but they stated that victim died in her sasural and they have supported the prosecution case that victim died in her sasural and on the basis of evidence it has been held that prosecution has been able to establish that death of the victim was in suspicious circumstance and further there is allegation of demand and subjecting to cruelty. 9. 9. Taking into consideration the respective submissions, it is proper to look into Section 304(B) of Penal Code. On plain reading of Section 304(B) of Penal Code, it is apparent that to establish the offence under Section 304(B) of Penal Code prosecution has to prove four ingredients for offence under Section 304(B) of Penal Code; (a) marriage of the victim solemnised within seven years of the date of death; (b) that victim has been done to death in suspicious circumstance by burn injury or bodily injury or otherwise than normal circumstances (c) the subjecting cruelty must be for in connection with non-fulfillment of demand of dowry and (d) soon before death, the victim was subjected to cruelty. Though, in the First Information Report, there was allegation of demand of dowry after six months of marriage and victim was asked to take money from her father else she will be done to death to death then she informed about the occurrence. Then notice was sent by an Advocate of Civil Court, Katihar, to the accused persons. Further, one month prior to the occurrence there was demand of Rs. 10,000/- made by the in-laws to the informant. However, P.W.9 is the informant, but in his evidence had deposed that marriage solemnised about 4-5 years back prior to the occurrence with Mukesh Kumar Mandal. He has further deposed that accused persons including Mukesh Kumar Mandal, his father-Janardhan Mandal and his mother Niriya Devi along with Nandosi, Ambika Mandal and Nanad, Gita Devi have done to death for further non-fulfillment of demand and he could not satisfy the demand of dowry. The informant further deposed that he was informed by Rajendra Mandal who that your daughter has taking her in-laws to Bali after killing then the informant informed Sanjay Mandal the uncle of husband of the victim and then he disclosed about taking the victim to Bali. Further, he has stated that a notice was issued through an Advocate of Katihar Civil Court for subjecting cruelty, though, notice had not been proved, though, it was a part of F.I.R., but there is nothing in the evidence. Further, there is no whisper in examination-in-chief that victim ever disclosed about the occurrence or subjected to cruelty. Further, he has stated that a notice was issued through an Advocate of Katihar Civil Court for subjecting cruelty, though, notice had not been proved, though, it was a part of F.I.R., but there is nothing in the evidence. Further, there is no whisper in examination-in-chief that victim ever disclosed about the occurrence or subjected to cruelty. Further, in cross-examination in paragraph 14-15 this witness had stated that his daughter live in sasural happily and she used to come to Naihar along with her husband and she never came alone. He has further stated that victim came to Naihar about 4-5 times along with her husband but she never made any complaint against her husband. P.W.8 is mother of the victim and she supported the prosecution case about marriage and quarrel and with regard to demand of dowry. Further she has stated when information about death of her daughter came she went to her sasural but she had not seen the dead body, though, she claimed her dead body of her daughter had been buried. Further, P.W.9 in paragraph 9 stated that he never seen the dead body of her daughter. Further he has stated that he tried to locate the place where his daughter was buried and none could find and police also could not search out the dead body where she was buried. Further, none of the villagers came to disclose where the dead body was buried and he did not know who buried her. P.W.6 is the uncle, the brother of the informant and in his evidence stated that there was demand of cycle, watch, pumping machine and ploughing machine and Palank. Further he stated that he did not see the dead body of the victim. P.W.10 is the I.O. who had deposed that he inspected the P.O. and there was disclosure of missing of the victim. 10. Hence, taking into consideration the entire evidence, though, there is allegation of demand, but there is no specific allegation of subjecting cruelty to cruelty for non-fulfillment of demand much less going into the First Information Report where allegation was made that one month prior to the occurrence a demand was made of Rs. 10,000/-. There is not mentioned that demand was made prior to the occurrence and there is no evidence that soon before the death the victim was subjecting to cruelty for non-fulfillment of demand is submissive. 10,000/-. There is not mentioned that demand was made prior to the occurrence and there is no evidence that soon before the death the victim was subjecting to cruelty for non-fulfillment of demand is submissive. Moreover, witnesses had stated that victim was missing and she was done to death and her dead body had been buried, but there is no evidence at all about death of the victim and defence has been set up she had been fled away. Further witnesses have stated in their evidence specifically stated that the victim was done to death and they claimed that victim was buried, but none of the witnesses have specifically stated where victim was buried and neither the police nor they themselves locate the place where the dead body had been buried. 11. Taking into consideration the evidence, though, ingredient under Section 304(B) of Penal Code that marriage of the victim was solemnised within seven years had been established. However, ingredients about demand not established as some of the witness says there was demand of cycle and watch, some one says that demand of pumping set or ploughing machine and some one says there was demand of Rs. 10,000/- but there is nothing in their evidence regarding subjecting cruelty and there was not mentioned time and place of occurrence and there is no evidence that soon before the death, the victim was subjecting to cruelty for non-fulfillment of demand. Further there is no cogent and admissible in evidence regarding death of the victim in suspicious circumstance. Hence having regard to the fact, ingredients of Section 304(B) of Penal Code having not been established and presumption of dowry death cannot be proved unless ingredients of Section 304(B) of Penal Code has been established. Hence I find and hold that prosecution has not been able to prove the charges beyond reasonable doubt and conviction and sentence recorded by the trial court is hereby set aside. The appellant, namely, Mukesh Kumar Mandal @ Mukesh Mandal who is in custody be set at liberty forthwith, if not required to any other cases. Further appellants, Jahandhan and Niriya Devi who were enjoying bail are free from their bail bonds.