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2016 DIGILAW 339 (JHR)

Tupi Devi v. State of Jharkhand

2016-02-15

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : These criminal appeals have been directed against the judgment of conviction and order of sentence dated 04.05.2001 passed by the 5th Addl. Sessions Judge, Dhanbad, in connection with Sessions Trial No.275 of 1999 corresponding to G.R. Case No.3632 of 1998 arising out of Dhanbad, Nirsa (Kalu Bathan) P.S. Case No.222 of 1998 dated 13.10.1998 whereby appellants namely Tupi Devi, Abla Devi, Balram Gorai, Nand Lal Gorai and Ranjeet Gorai have been held guilty for the offence punishable under Section 304B of the Indian Penal Code. Out of them appellants namely Tupi Devi and Abla Devi have been sentenced to undergo R.I. for seven years whereas appellants namely Balram Gorai, Nand Lal Gorai and Ranjeet Gorai have been directed to undergo R.I. for life under Section 304B of the Indian Penal Code. Appellants namely Balram Gorai, Vijay Gorai, Nand Lal Gorai and Ranjeet Gorai have been held guilty for the offence punishable under Section 201 of the Indian Penal Code and sentenced to undergo R.I. for three years and to pay fine of Rs.5000/- each under Section 201 of the Indian Penal Code and in default of making payment of fine, they shall suffer further imprisonment of one year. 2. The case of prosecution as it appears from the written report lodged by Bhola Nath Gorai (PW7), in brief, is that his sister Uchita Devi @ Nuni was married with appellant Ranjeet Gorai four years prior to the date of incident. She was blessed with two children but only one survived and she was a female child. Uchita was subjected to torture and treated with cruelty during her lifetime. It is disclosed that when Ranjeet Gorai lost his employment, he started demanding Rs.10,000/- and for that Uchita was compelled and subjected to torture to bring that sum of Rs.10,000/- from her parents. One month prior to the date of occurrence Uchita was brought by her husband to her matrimonial home. Again she was subjected to torture and treated with cruelty and lastly she has been done to death and the dead body was hurriedly cremated during night by the husband and other family members. On the basis of written report lodged by Bhola Nath Gorai, Nirsa (Kalu Bathan) P.S. Case No.222 of 1998 dated 13.10.1998 under Section 328, 304B & 201/34 of the Indian Penal Code was registered. On the basis of written report lodged by Bhola Nath Gorai, Nirsa (Kalu Bathan) P.S. Case No.222 of 1998 dated 13.10.1998 under Section 328, 304B & 201/34 of the Indian Penal Code was registered. The police, after due investigation, submitted charge-sheet against the appellants and accordingly cognizance was taken and the case was committed to the court of sessions and registered as Sessions Trial No.275 of 1999. 3. Charges under Section 304B/34 and 201 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and claimed to be tried. The prosecution, in order to substantiate the charges, examined altogether ten witnesses including the informant and the Investigating Officer. PW9 and PW10 are the witnesses to the seizure of the cloth of the deceased and ash. The learned Addl. Sessions Judge, considering the evidence and documents available on record, held the appellants guilty and sentenced them, as indicated above. Appellant Vijay Gorai has been acquitted from the charge under Section 304B of the Indian Penal Code. 4. Learned counsel appearing for the appellants have assailed the impugned judgment on the ground that no witness had seen the appellants administering poison to Uchita Devi (deceased). No witness had seen the appellants cremating the dead body of Uchita. The ingredients of Section 304B of the Indian Penal Code are not attracted from the evidences available. The demand of Rs.10,000/- was not for or in connection with dowry rather it was demanded as a kind of help when appellant Ranjeet Gorai lost his employment. The husband or his relatives who were occupying the house and living with the deceased have been implicated without any cogent reason. As a matter of fact, Uchita Devi died her natural death as she was suffering from jaundice. She was treated by the doctor and the medical prescriptions have been proved as Exhibits B and B/1. The death certificate has been marked Exhibit-C which was given by DW2 Dr. Shekhar Kumar, Pathologist reports of the deceased have been marked as Exhibits-A and A/1 and proved by Dr. S.C. Das DW1. The defence witnesses examined, have clearly stated in their deposition that Uchita Devi was suffering from jaundice and her condition was deteriorating. The death certificate has been marked Exhibit-C which was given by DW2 Dr. Shekhar Kumar, Pathologist reports of the deceased have been marked as Exhibits-A and A/1 and proved by Dr. S.C. Das DW1. The defence witnesses examined, have clearly stated in their deposition that Uchita Devi was suffering from jaundice and her condition was deteriorating. The defence taken by the appellants also finds support from their statement recorded u/s 313 Cr.P.C. The learned trial judge has wrongly discarded the documents and evidences brought on record by the defence and the reasonings are not sound and cogent. In the circumstances, the impugned judgment of conviction and sentence is liable to be set aside. 5. Learned counsel appearing for appellant Vijay Gorai has submitted that he has been acquitted from the charge framed under Section 304B/34 of the Indian Penal Code but held guilty under Section 201 of the Indian Penal Code. He is not the relative of husband of the deceased. Presence of appellant Vijay Gorai at the place of occurrence could not be considered incriminating because he is resident of same village. Nobody had seen him either carrying the dead body or present at the place of cremation. Under such circumstances, the judgment of conviction and sentence recorded against appellant Vijay Gorai under Section 201 of the Indian Penal Code is liable to be set aside. 6. Learned A.P.Ps. have opposed the arguments and submitted that PW2 to PW6 are the common relatives of the appellants and the deceased. They are residents of same village. When they were informed regarding death of Uchita Devi, they went to the house of appellants and found Uchita Devi lying dead on a cot, froth were coming out from her mouth and nostril. Suresh Gorai PW6 had directed the appellants not to cremate the dead body till arrival of the parents and relatives of the deceased. He had gone to inform brother of the deceased on the following morning and after receiving such information Bhola Nath Gorai PW7, who happens to be brother of the deceased, lodged a written report. The appellants hurriedly cremated the dead body of Uchita with an intention to screening themselves from legal punishment and they had destroyed the evidence of murder. He had gone to inform brother of the deceased on the following morning and after receiving such information Bhola Nath Gorai PW7, who happens to be brother of the deceased, lodged a written report. The appellants hurriedly cremated the dead body of Uchita with an intention to screening themselves from legal punishment and they had destroyed the evidence of murder. It is submitted that learned trial judge has discussed the evidences of DW1 and DW2, exhibits and the defence documents in detail and proper reasonings have been assigned for disbelieving the documents and evidence brought on record by the appellants in their defence. Uchita Devi died within seven years of her marriage in her matrimonial home otherwise than under normal circumstance and she was subjected to cruelty for want of more dowry which is appearing from the evidence available. The ingredients of Section 304B of the Indian Penal Code have well been proved by the prosecution and the appellants have failed to extend cogent explanation against the death of Uchita. The learned trial court has rightly drawn inference by taking help of Section 113B of the Evidence Act. There is no merit in these appeals and the same are liable to be dismissed. 7. After giving hearing to the parties, we have examined the case record, gone through the evidence and documents available and also perused the impugned judgment. Uchita Devi died in her matrimonial home within seven years of her marriage is not in dispute. We do not find cross-examination on the point that Rs.10,000/- was not demanded by the husband and family members from Uchita rather evidence available on record reveals that Uchita was subjected to torture for want of Rs.10,000/- demanded by her husband Ranjeet Gorai. The witnesses who are resident of same village have stated that Uchita was subjected to assault by her husband and in-laws for non-fulfillment of said sum of Rs.10,000/- and to take shelter she went to her parents house and reported the matter. The informant PW7 has stated that ten days prior to the occurrence he had tried to convince appellant Ranjeet Gorai and requested him not to torture Uchita for want of said sum of Rs.10,000/-. He has further promised that they would make arrangement to make part payment after Pooja festival. The informant PW7 has stated that ten days prior to the occurrence he had tried to convince appellant Ranjeet Gorai and requested him not to torture Uchita for want of said sum of Rs.10,000/-. He has further promised that they would make arrangement to make part payment after Pooja festival. This contention of informant clearly indicates that dowry was demanded and for that Uchita was subjected to torture and cruelty. According to evidence of PW5 and PW6 after being badly tortured Uchita had run towards railway track but somehow she was brought back. PW2 to PW6, except PW5, are the common relatives of appellants and deceased and they have categorically stated in their deposition that after receiving death news of Uchita they had been to her matrimonial home and found dead body of Uchita lying on a cot, froth was coming out from her mouth and nostril. On being questioned, the appellant Nand Lal Gorai had told that Uchita had consumed poison. None of the appellants present at the spot had ever told or disclosed that Uchita died due to illness as she was suffering from jaundice. Neither doctor was present nor any prescription was shown to them. PW6 had told the appellants not to cremate the dead body till arrival of relatives of the deceased but they hurriedly cremated the dead body within three hours of the occurrence and that too during night without informing or collecting other villagers. 8. Learned counsel appearing for the appellants has submitted that cogent explanation regarding death of Uchita was extended and the appellants have examined two doctors in their defence and proved pathologist report and medical prescriptions. The learned trial judge has elaborately discussed the evidence of aforesaid defence witnesses and the documents in the impugned judgment and assigned reasonings for discarding their evidence but to satisfy ourselves, we have also examined those documents and evidences of DW1 and DW2. Dr. S.C. Das DW1 is a doctor posted at P.M.C.H., Dhanbad. He supports the pathologist report ExhibitA and A/1 but admits that he is not having any laboratory. Dr. S.C. Das DW1 is a doctor posted at P.M.C.H., Dhanbad. He supports the pathologist report ExhibitA and A/1 but admits that he is not having any laboratory. He did not disclose as to how he was authorised or employed to conduct pathology test at Karkendra Laboratory, P.S. Kusunda, Dhanbad, if he was employed at P.M.C.H. and the patient was referred to him for any pathology test of urine or blood, he had right to refer the patient to laboratory of P.M.C.H. but it was not done. He has stated that the patient was referred to him by Dr. S. Kumar DW2 but Dr. S. Kumar did not corroborate that he had referred Uchita Devi for any pathological test. DW1 has not recorded name of the husband or father of the patient. Neither the age nor any mark of identification of the patient was mentioned in the prescriptions. The patient was not known to him from before. No register of Karkendra Laboratory has been brought on record. DW2 Dr. S. Kumar has proved ExhibitB and B/1 in order to bring on record that Uchita Devi was suffering from jaundice. He has prescribed medicines in those prescriptions. In his deposition he has admitted that condition of patient was deteriorating on 09.10.1998 but he did not bother to refer the patient for her admission to any hospital. On 13.10.1998 the deceased was not before him but he had issued death certificate Exhibit-C. He says that he was present when Uchita died but no prosecution witness had noticed presence of DW2 in the house of deceased at relevant point of time. This DW2 has also failed to disclose name of husband or father of Uchita or her age though he says that he had been to the house of deceased on 12.10.1998. PW2 to PW6 are the residents of same village and relatives of appellant but none of them has admitted this story brought on record by the defence that Uchita was suffering from severe jaundice or she was treated by any doctor. The learned trial judge has rightly discarded the plea taken by the appellants that Uchita died due to jaundice and rightly disbelieved the testimony of DW1 and DW2. In view of the facts and evidence available on record, the explanation extended by the appellants that Uchita died her natural death due to illness is disproved. 9. The learned trial judge has rightly discarded the plea taken by the appellants that Uchita died due to jaundice and rightly disbelieved the testimony of DW1 and DW2. In view of the facts and evidence available on record, the explanation extended by the appellants that Uchita died her natural death due to illness is disproved. 9. In the circumstances stated above, the ingredients of Section 304B of the Indian Penal Code stood remain that Uchita died within seven years of her marriage in her matrimonial home otherwise than under normal circumstance, she was subjected to torture and treated with cruelty for want of dowry. PWs. 2, 3, 4 and 6 had seen the dead body lying on a cot and froth was coming out from her mouth and nostril. The appellants Ranjeet Gorai and Nand Lal Gorai had disclosed that Uchita had consumed poison. This goes to show that the appellants had admitted before the witnesses that Uchita died due to poisoning but in course of trial, after securing certain documents, they have tried to make out a case that Uchita died due to illness as she was suffering from jaundice. We do not find any material on record to disbelieve or discard testimonies of PW2 to PW7. This fact has also been proved by the prosecution that dead body of Uchita was cremated hurriedly within three hours of her death without performing her last rituals and one Saree of Uchita was recovered from the place where the dead body was cremated. PW9 and PW10 have proved their signature on the seizure list. PW8 has proved the seizure list. Sudama Tiwari happens to be the Investigating Officer and he has proved the investigation done by him. 10. Considering all these aspects, we do not find merit in the appeal (Cr. Appeal (DB) No.236 of 2001) preferred by appellants Tupi Devi, Abla Devi, Balram Gorai, Nand Lal Gorai and Ranjeet Gorai and therefore the judgment of conviction and sentence recorded by the trial judge against them is hereby upheld. Appellants namely Tupi Devi, Abla Devi and Balram Gorai are on bail, their bail bonds are hereby canceled and they are directed to surrender before the convicting/successor court within six weeks from today failing compliance the bail amount shall be forfeited and the convicting/successor court shall issue processes to secure their attendance so that they may serve out the sentence. Accordingly, Cr. Accordingly, Cr. Appeal (DB) No.236 of 2001 stands dismissed. 11. Cr. Appeal (DB) No.170 of 2001 has been preferred by appellant Vijay Gorai who has been held guilty for the offence punishable under Section 201 of the Indian Penal Code. After going through the evidence available on record, we do not find that any of the witnesses had seen him accompanying other appellants at the time of cremation. Nobody had seen him present at the place where dead body of Uchita was cremated. He is not relative of husband of the deceased. His presence in the house of deceased after her death could not be considered incriminating to hold him guilty for the offence alleged and the learned court below has rightly acquitted him from the charge punishable under Section 304B of the Indian Penal Code. We do not find any material to uphold the conviction of appellant Vijay Gorai under Section 201 of the Indian Penal Code and accordingly, he is hereby acquitted from the charge of Section 201 of the Indian Penal Code and the judgment of conviction and sentence recorded against appellant Vijay Gorai is hereby set aside. Since appellant Vijay Gorai is on bail, he is discharged from the liability of his bail bonds. 12. Cr. Appeal (DB) No.170 of 2001 stands allowed.