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2017 DIGILAW 1206 (JHR)

Dhaneshwar Mahto v. State of Jharkhand

2017-07-20

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard M/s Suchitra Pandey, learned counsel, appointed by the Court for the appellants and learned counsel for the State. 2. The appellants are aggrieved by the Judgment of conviction dated 6th of March, 1992 and Order of sentence dated 13th of March, 1992, passed by learned Vth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 349 of 1991, where by, the appellants, who are the husband, brother-in-law, father-in-law and mother-in-law respectively of the deceased, have been found guilty for the offence under Section 304-B of the Indian Penal Code. The appellant Nos. 1, 2 and 3 have also found guilty for the offence under Section 201 of the Indian Penal Code and have been convicted for the same. Upon hearing on the point of sentence, all the appellants have been sentenced to undergo R.I. for life for the offences under Section 304-B of the Indian Penal Code and those appellants, who have been found guilty for the offence under Section 201 of the Indian Penal Code, have also been sentenced to R.I. for 3 years each for that offence. All the sentences were directed to run concurrently. 3. The prosecution story as detailed in the F.I.R., lodged on 15.4.1980 by Jeewan Mahto, who is the father of the deceased, is that his daughter Nilmani Devi was married to Dhaneshwar Mahto, about 5 years prior to the occurrence, and she was killed by the accused persons for demand of dowry and the dead body was buried at the cremation place near one Kanchi river. The deceased had also a daughter, out of the wedlock, aged about 2 years. He has stated in the F.I.R. that soon after the marriage, all the accused persons were demanding money and due to non-fulfillment of money, they used to send his daughter to her parents’ place and after getting the money, they used to keep her for some days, thereafter the atrocities for demand of money again used to start on her. It is further alleged in the F.I.R. that some days prior to the occurrence, there was some demand of money for purchase of agricultural land, which he could not give and again on 11.4.1989, there was same demand of money by his son-in-law, which also could not be met due to the fact that informant had to marry his second daughter. On the next day, he was informed by one Kashinath Mahto that his daughter had died and the accused persons were taking the dead body to bury it by the side of Kanchi river. He was also informed that while the accused persons were taking the dead body on a cot and some of them were having spade with them, Kashinath Mahto asked them about the dead body, whereupon they informed that the dead body was of the wife of Dhaneshwar Mahto, who had died due to pain in stomach. He was not allowed to see the dead body, but he could also see the blood dropping from the dead body and the accused persons rushed towards Kanchi river. As Kashinath Mahto is the brother-in-law of the informant, he came and informed him about the occurrence. The informant has also stated that he was informed that on 10.4.1989, his daughter was assaulted by the accused persons and they also strangulated her to death. The informant claimed that his daughter was killed due to non-fulfillment of the demand of money by the accused appellants and her dead body was buried near the Kanchi river. On the basis of the FIR lodged by the informant Jeewan Mahto, Sonahatu P.S. Case No. 22 of 1989 corresponding to G.R. No. 170 of 1989 was instituted for the offences under Sections 498-A, 302 and 201 of the Indian Penal Code and investigation was taken up. After investigation the police has submitted charge sheet against the appellants and the other co-accused persons, who were also put to trial. It may be stated that out of the eight accused persons, who were put to trial, one Abhiram Mahto was acquitted after trial, two accused persons died and one has not preferred any appeal. Remaining four convicted accused persons have preferred this appeal. 4. Upon commitment of the case to the Court of Session, charges were framed against the accused appellants for the offences under Sections 302 and 120-B of the Indian Penal Code as also under Section 304-B of the Indian Penal Code and Sections 201/120-B of the India Penal Code, and upon their pleading not guilty and claiming to be tried, they were put to trial. In course of trial, prosecution has examined 11 witnesses in this case, out of whom, P.W.-3 Sitamani Devi and P.W.-6 Janak Mahto were only tended. In course of trial, prosecution has examined 11 witnesses in this case, out of whom, P.W.-3 Sitamani Devi and P.W.-6 Janak Mahto were only tended. P.W.-4 Jaimani Devi has turned hostile. The doctor, who had conducted the post-mortem examination has not been examined in this case and the post-mortem report was proved as Exhibit-3 by a formal witness, P.W.-10 Banwari Lal Jaiswal. The defence has also examined one witness in the case. 5. P.W.-1 Jeewan Mahto is the informant of the case and he has fully supported the prosecution case. This witness has stated that his daughter was married to the accused Dhaneshwar mahto about 7 to 8 years ago (as his evidence was recorded on 23.11.1991) and she had a child also. Soon after the marriage, the accused persons, Barju Mahto, Dhaneshwar Mahto, Baneshwar Mahto and Ranjani Bala Devi used to assault her for brining money from her parents’ place. His daughter used to come very frequently and after getting the money, she used to go back to her in-laws' place. So long the money remained, she was kept properly, but as soon as the money was spent, she used to be assaulted again. He has stated that about 2 years ago, Dhaneshwar Mahto had demanded money from him and he had given Rs. 2,000/. He again came to demand more money, but the said demand was not met as this witness had to marry his another daughter. On the next day, this witness was informed by Kashinath Mahto that accused persons had killed his daughter and they were taking her to bury near the Kanchi river. Upon getting the information from Kashinath Mahto, he came to the Police Station and he gave the information. One police officer also accompanied him and he asked to cremate the dead body. This witness contacted the higher police officials at Ranchi, and the police was directed to bring the dead body to the police station. He has stated that his statement was recorded by the police, whereupon, he had put is signature and he identified the statement given by him, which was marked Exhibit-1. He also identified the accused persons in the Court. In his cross-examination he has stated that he had seen the dead body of his daughter. There is nothing of much important in his cross-examination. 6. He also identified the accused persons in the Court. In his cross-examination he has stated that he had seen the dead body of his daughter. There is nothing of much important in his cross-examination. 6. P.W.-2 Kashinath Mahto is the brother-in-law of the informant, who had informed the informant about the occurrence. He has stated that a child came to his house early in the morning and informed that Nilmani Devi had died, whereupon his wife awoke him and gave the said information and she also informed that the accused persons were taking away the dead body. His wife went to that place and she wanted to see the dead body, whereupon some of the accused persons fled away. He has also stated that both the nose were studded with cotton and there was blood in the nostrils. Thereafter, he went to inform the father of the deceased along with Dhaneshwar Mahto, but Dhaneshwar Mahto fled away. He has stated that Dhaneshwar Mahto used to quarrel with his wife at times. This witness has also identified the accused persons in the Court. 7. P.W.-7 Nirupa Devi is the wife of P.W.-2 Kashinath Mahto and the sister of the informant. She has stated that the informant is her brother, whose daughter was married in her village with Dhaneswar Mahto. Accused persons used to demand money. About 2 years ago, she was informed that the deceased had died due to snake bite. She rushed to the place and saw the accused persons taking the dead body on a cot and some of the persons were having axe and shawal. She forcibly saw the dead body, in which cotton was studded in both the nostrils. The blood was coming out and there were marks of assaults. Her husband and brother-in-law also came and she asked them to inform the father of the deceased. Dhaneshwar Mahto was also asked to inform the father of the deceased, but he fled away. She also identified the accused persons in the Court. She has also stated that the deceased had informed her that the accused persons were demanding money. 8. P.W.-8 Prayag Mahto is the brother-in-law of P.W.-7 Nirupa Devi and he has stated that he had seen the dead body with injuries. He has not stated anything against the accused persons. 9. She also identified the accused persons in the Court. She has also stated that the deceased had informed her that the accused persons were demanding money. 8. P.W.-8 Prayag Mahto is the brother-in-law of P.W.-7 Nirupa Devi and he has stated that he had seen the dead body with injuries. He has not stated anything against the accused persons. 9. P.W.-9 Somni Devi is the mother of the deceased, who has fully supported the prosecution case and has stated about the demand of dowry by the accused persons. She has stated that her daughter was subjected to cruelty and torture due to non-fulfillment of the demand. She has stated that upon getting the information about the death of her daughter, she went and she saw the dead body and she has identified the accused persons, present in the Court. Though, she was put to extensive cross-examination, but there is nothing of much importance. 10. P.W.-5 Khagesh Chandra Singh is the witness to the inquest report and seizure list, who has proved his signatures on the inquest report of the dead body and the seizure list, which were marked Exhibits- 2 and 2/1 respectively. 11. P.W.-11 Govind Pathak is the Investigating Officer and he has stated that on 15.4.1989 while had was posted as In-charge of Sonahatu Police Station, the informant Jeewan Mahto came to the police station and gave his statement, which was recorded by him. He has identified the entire FIR, which was in his pen and signature and the same was marked Exhibit-4. He has stated that in course of investigation, he recorded the statements of the witnesses and visited the place of occurrence, i.e., the house of the deceased, which was found to be smeared. Thereupon, with the Circle Officer, he had gone to the place, where the dead body of the deceased was buried and on the order of the Circle Officer, the dead body was taken out. The inquest report was also prepared and the seizure list was prepared, which he identified and they were marked Exhibits. He has also stated that he sent the dead body for post-mortem examination and he has also got the post-mortem report and after completion of investigation, he submitted the charge sheet. 12. The defence has also examined one witness, who is D.W.-1 Natwar Mahto, who has come to depose that the deceased had died due to stomach pain. He has also stated that he sent the dead body for post-mortem examination and he has also got the post-mortem report and after completion of investigation, he submitted the charge sheet. 12. The defence has also examined one witness, who is D.W.-1 Natwar Mahto, who has come to depose that the deceased had died due to stomach pain. 13. On the basis of the evidence on record, the accused persons were convicted and sentenced by the Trial Court below as aforesaid. 14. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has miserably failed to prove the case beyond all reasonable doubts. It is submitted that the appellants have been found guilty for the offence under Section 304-B of the Indian Penal Code and though the interested witnesses, who are the mother, father and other close relatives of the deceased had stated that there was demand of money from the accused persons and she was being subjected to cruelty for the said demand, but the fact remains that the prosecution has failed to prove the fact that the deceased had died an unnatural death. It is also submitted that the dead body was buried after death of the deceased and it has come in the evidence of P.W.-2 Kashinath Mahto, who is the close relative of the deceased, that the usual practice in his community is to bury the dead body. Learned counsel has submitted that the doctor has not been examined in this case to show that the deceased had died an unnatural death, but the post-mortem report, which has been proved through the formal witness, shows that no cause of death has been mentioned therein. Learned counsel, accordingly, submitted that in absence of the proof by the prosecution that the deceased had died an unnatural death, the accused persons cannot be convicted for the offence under Section 304-B of the Indian Penal Code and in the facts of the case, the appellants are entitled at least to the benefits of doubt. 15. Learned counsel, accordingly, submitted that in absence of the proof by the prosecution that the deceased had died an unnatural death, the accused persons cannot be convicted for the offence under Section 304-B of the Indian Penal Code and in the facts of the case, the appellants are entitled at least to the benefits of doubt. 15. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that all the witnesses, who have supported the prosecution case, have stated that the marriage had taken place about 5 years ago and soon after the marriage, she was being subjected to cruelty and torture for demand of dowry and even two days prior to the occurrence, there was a demand of money, which could not be fulfilled due to the fact that informant had to marry his another daughter, and the deceased was killed by the husband and the other in-laws due to non-fulfillment of that demand. The witnesses have stated that they have seen the dead body with blood in the nose, and accordingly, the prosecution has been able to prove the fact that the deceased was being subjected to cruelty and torture for demand of dowry and she died an unnatural death with blood injuries within seven years of her marriage. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the accused-appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 16. Section-304-B of the Indian Penal Code reads as follows:- "304B. Dowry death (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is 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, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation- For the purpose of this sub-section, "dowry" shall have the same meaning. as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation- For the purpose of this sub-section, "dowry" shall have the same meaning. as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." Thus, it is clear from a plain reading of this Section, that for attracting the deeming provision against the husband and his relatives, for the offence under Section 304-B of the Indian Penal Code, the prosecution has not only to prove the fact that the marriage had taken place within 7 years of the occurrence and soon before the death the deceased she was being subjected to cruelty and harassment for, or in connection with, any demand for dowry, rather the prosecution is also required to prove beyond any reasonable doubt, the fact that the deceased had died an unnatural death, due to any burn, or bodily injury or the death occurred otherwise than under normal circumstances. If the prosecution fails to prove any of these ingredients beyond any reasonable doubt, the deeming provision shall not be attracted against the husband and his relatives, for the offence under Section 304-B of the Indian Penal Code, so as to attract the presumption under Section 113-B of the Evidence Act, and shift the burden upon the accused to prove their innocence. [Authorities - Biswajit Halder Vs. State of W. B., reported in (2008) 1 SCC 202 , Sher Singh Vs. State of Haryana, reported in (2015) 3 SCC 724 ]. 17. In the present case, we find that the witnesses, P.W.-1 Jeewan Mahto, who is informant and the father of the deceased and P.W.-9 Somni Devi, who is mother of the deceased have stated that the deceased was being subjected to cruelty and harassment for demand of dowry and even two days prior to the occurrence, there was a demand, which could not be fulfilled, thereafter she was done to death, but the fact remains that it is only the deposition of the mother, father and other close relatives of the deceased, who are highly interested witnesses, that the deceased had died an unnatural death with bleeding injuries. The prosecution has failed to get this oral evidence of the interested witnesses corroborated by any medical evidence, as the doctor, who had conducted the post-mortem examination on the dead body of the deceased has not been examined in the case, to prove the unnatural death of the deceased. Though, the post-mortem report has been proved with the help of formal witness P.W.-10 Banwari Lal Jaiswal, but the fact remains that this is only the evidence of the fact that the post-mortem of the deceased was done, but it cannot be the evidence to the reason of death of the deceased. However, we have looked into the post-mortem report, which shows that there is no opinion about the cause of death of the deceased, there was no evidence of any mechanical injury on the dead body, no evidence of any pressure over nose, mouth and throat, and the parts of the dead body were found to be missing, as the post-mortem examination had been done after several days of death of the deceased, after exhuming the buried dead body. P.W.-2 Kashinath Mahto, who is also the close relative of the deceased, had admitted that in his community, it was the usual practice to bury the dead body. 18. In that view of the matter, we are of the considered view that the prosecution has failed to prove the fact that the deceased died an unnatural death and therefore, the deeming provision under Section 304-B of the Indian Penal Code cannot be attracted against the accused appellants, for holding them guilty for the offence under Section 304-B of the Indian Penal Code. As such the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law and the appellants are entitled to the benefits of doubt. 19. For the foregoing reasons, the Judgment of conviction dated 6th of March, 1992 and Order of sentence dated 13th of March, 1992, passed by learned Vth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 349 of 1991, are hereby, set aside. The appellants are given the benefits of doubt and they are acquitted of the charges. The appellants are already on bail, and they are discharged from the liabilities of their respective bail bonds. 20. The appellants are given the benefits of doubt and they are acquitted of the charges. The appellants are already on bail, and they are discharged from the liabilities of their respective bail bonds. 20. Before parting with this Judgment, we must record that we have been very ably assisted by M/s Suchitra Pandey, learned counsel for the appellants, who has been appointed by the Court, and we direct the Secretary, High Court Legal Services Committee to make the payment of prescribed remuneration to her. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 21. This appeal is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith along with a copy this Judgment.