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2017 DIGILAW 1008 (JHR)

Rijhan Ram v. State of Jharkhand

2017-06-30

ANANDA SEN

body2017
JUDGMENT : Ananda Sen, J. 1. The appellants have been convicted for committing offence under Sections 498A and 304B of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 2 (two) years and 8 (eight) years respectively vide judgment dated 29.11.2002 and order of sentence dated 02.12.2002. Aggrieved by the said judgment passed in Sessions Trial No. 319 of 1999(P), leading to Sessions Trial No. 987 of 2001(G), arising out of Bhawanathpur P.S. Case No. 73 of 1998 (G.R. No. 767 of 1998), the appellants have preferred these criminal appeals. 2. The case was instituted on the basis of fardbayan of Basant Ram (PW-9) the father of the deceased, alleging therein that four years prior to the date of occurrence, his daughter was married with accused No. 2. It is alleged that often there was quarrel and altercation between the in-laws and his daughter and his daughter was abused and assaulted also on the pretext of not doing any work. On 10.12.1998, one Shambhu Ram came and informed the informant that his daughter has been killed. On receipt of said information, the informant rushed to the place of occurrence and found his daughter lying dead in the Aangan. On querry, he learnt from Shambhu Ram and others that because of domestic matters and displeasure of the family members, they abused and assaulted the deceased by means of Lathi and after murdering her they fled away from the place of occurrence. 3. On the basis of aforesaid fardbayan Bhawanathpur P.S. Case No. 73 of 1998 was registered under Sections 302/34 of the Indian Penal Code against these two appellants along with others. After investigation, charge-sheet was submitted against these two appellants only, who happened to be the husband and father-in-law of the deceased for charges under Sections 498A and 304B/34 of the Indian Penal Code. Cognizance was taken and the case was committed to the Court of Sessions. As the accused persons pleaded not guilty, they were put on trial after framing of charge under Sections 304/34 and 498A of the Indian Penal Code. 4. In order to substantiate its case, the prosecution examined 14 witnesses, who are Ramlagan Ram (PW-1), Shambhu Ram (PW-2), Sampati Ram (PW-3), Bachan Prasad Yadav (PW-4), Jagdish Singh (PW-5), Srikishun Ram (PW-6), Sarju Ram (PW-7), Nawal Kishore Yadav (PW-8), Basant Ram (PW-9), Banbari Ram (PW-10), Bhikhari Ram (PW-11), Gopichand Yadav (PW-12), Dr. 4. In order to substantiate its case, the prosecution examined 14 witnesses, who are Ramlagan Ram (PW-1), Shambhu Ram (PW-2), Sampati Ram (PW-3), Bachan Prasad Yadav (PW-4), Jagdish Singh (PW-5), Srikishun Ram (PW-6), Sarju Ram (PW-7), Nawal Kishore Yadav (PW-8), Basant Ram (PW-9), Banbari Ram (PW-10), Bhikhari Ram (PW-11), Gopichand Yadav (PW-12), Dr. Ram Naresh Singh "Diwakar" (PW-13) and Ramdhyan Pal (PW-14). 5. After closure of the evidence of prosecution, appellants were examined under Section 313 Cr.P.C. and they did not chose to lead any evidence. 6. Learned Trial Court, after hearing the arguments and after going through the records, convicted the appellants under Sections 304B and 498A of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 8 (eight) years for offence under Section 304B of the Indian Penal Code and 2 (two) years for offence under Section 498A of the Indian Penal Code. Hence, this appeal. 7. I have heard learned senior counsel appearing for the appellants and learned Additional Public Prosecutor for the State. I have also gone through the Lower Court Records and scanned the evidence led by the prosecution. 8. Learned senior counsel, appearing on behalf of the appellants, submits that the learned Trial Court has failed to appreciate the evidence in proper perspective and has, thus, erred in convicting the appellants and sentencing them for the offence involved. The prosecution has miserably failed to bring home the charges against the appellants. The basic ingredients for making out the offence alleged are completely missing and are unsupported by the prosecution witnesses, thus, these appellants need to be acquitted. 9. To the contrary, learned A.P.P. submits that the impugned judgment and order of sentence have been passed by the learned Court below after weighing the evidence adduced by the prosecution witnesses and the materials available on record and the prosecution has been able to prove the charges against the appellants in a very specific manner. 10. As mentioned earlier, 14 witnesses were examined on behalf of the prosecution. From perusal of the Lower Court Records, I find that the Investigating Officer has not been examined in this case. PW-9, 10 and 13 are the material witnesses in this case. This case has been initiated on the fardbayan of PW-9. In the fardbayan, PW-9 has not stated or whispered a single line about demand of dowry. From perusal of the Lower Court Records, I find that the Investigating Officer has not been examined in this case. PW-9, 10 and 13 are the material witnesses in this case. This case has been initiated on the fardbayan of PW-9. In the fardbayan, PW-9 has not stated or whispered a single line about demand of dowry. In the fardbayan he stated that his daughter was being tortured and assaulted for trivial household disputes. When I scanned the evidence of PW-9, I found that in his evidence he has stated that these appellants often used to demand watch, cycle, radio from the deceased and because of the non-fulfilment of the said demand, the deceased was being assaulted. In his evidence, he has stated that the deceased was poisoned as a result of which she died. He further stated that he had told the police that there was demand from these appellants, but he stated that he does not know when the demand was made, neither did he informed any one about such demand. 11. PW-10 in his entire deposition has not stated a single line about any demand of dowry made by the accused persons. Thus, from the evidence of these two material witnesses, I find that though PW-10 has stated nothing about demand of dowry, yet the father of the deceased, i.e. PW-9 has given a statement about the demand. 12. Now the question is whether on the point of demand of dowry PW-9 can be relied upon. The fardbayan, which is the first statement of the PW-9, did not whisper about any demand of dowry. This witness has improved his case while deposing in Court and has added about demand of watch, cycle and radio. In his evidence, he has further categorically stated that he does not remember when the demand was made nor he informed any one about such demand. This is a major discrepancy in the evidence of PW-9. This witness has made subsequent major development in the evidence and introduced demand of dowry in his evidence, which was not there in the F.I.R. This creates a doubt as to whether dowry was actually demanded or not. 13. It is admitted that the deceased died an unnatural death. In the F.I.R. the informant states that he received an information from Shambhu Ram about the death of the deceased. 13. It is admitted that the deceased died an unnatural death. In the F.I.R. the informant states that he received an information from Shambhu Ram about the death of the deceased. PW-9 states that he got information that the deceased was beaten to death. Shambhu Ram was examined as PW-2, who has been declared hostile. 14. PW-13 is the doctor, who conducted the postmortem on the body of the deceased. The doctor did not find any antemortem injuries on the person of the deceased, rather he opined that the cause of death was due to poisoning. This was a preliminary opinion, which is evident from the statement of the doctor himself as he deposed that the viscera has been preserved for chemical analysis for confirmation about the cause. This suggests that he is also not sure as to whether the death was due to poisoning or not. In his evidence, he has never stated that on what basis he opined that the death was due to poisoning. Surprisingly enough, the viscera report or FSL report has not been brought on record by the prosecution. 15. To bring home the charge of Section 304B IPC, the prosecution must prove that:- (i) the cause of the death was by burnt or bodily injury or has occurred otherwise than under normal circumstances. (ii) such death occurred within 7 years of her marriage. (iii) must be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry. 16. After analysing the evidence in this case, I find that the death definitely occurred within 7 years of marriage and that too not under normal circumstances. But, as held earlier, from analysing the evidence of PW-9, it is difficult to come to a conclusion that there was a demand of dowry. One of the basic ingredients of demand of dowry is not proved in this case. Thus, I find that these appellants could not have been convicted for offences under Section 304B I.P.C. 17. So far as conviction under Section 498A I.P.C. Is concerned, I find that the only evidence, which is on record, is of PW-9, but, his evidence also cannot be totally relied upon as he has deviated and improved his case while deposing in the Court. So far as conviction under Section 498A I.P.C. Is concerned, I find that the only evidence, which is on record, is of PW-9, but, his evidence also cannot be totally relied upon as he has deviated and improved his case while deposing in the Court. So far as torture and cruelty to the deceased are concerned, I find that there is no evidence on record that to fulfill the demand of dowry she was tortured. How the deceased died and the reason behind her death has not been substantiated by the prosecution by bringing sufficient evidence. Thus, the conviction under the aforesaid Section is also bad. 18. In view of the findings above, these appeals are liable to be allowed. The judgment dated 29.11.2002 and the order of sentence dated 02.12.2002 passed in Sessions Trial No. 319 of 1999(P) leading to Sessions Trial No. 987 of 2001(G) arising out of Bhawanathpur P.S. Case No. 73 of 1998 (G.R. No. 767 of 1998) are hereby set aside. The appellants, who are on bail, are discharged from liability of their bail bonds.