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2017 DIGILAW 1427 (JHR)

Nunulal Razak v. State of Jharkhand

2017-08-10

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the judgment of conviction and order of sentence dated 5.2.1993, passed by the learned 5th Additional Sessions Judge, Giridih in S.T No. 138 of 1991, whereby, the appellants have been found guilty and convicted for the offence under Sections 304-B/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo rigorous imprisonment for life. 3. The appellant No. 3, Chhedilal Razak is the husband of the deceased and the appellants Nos. 1 and 2, Nunulal Razak and Tulsi Razak are his brothers. The written information was given to the Officer-in-Charge of Pirtand Police Station by one Narayan Baitha, the father of the deceased, stating that his daughter Geeta was married to the appellant, Chhedilal Razak in the year 1987 and soon after the marriage, she was being subjected to cruelty and torture for the demand of dowry, such as gold ring and radio etc. by her in-laws. His son-in-law had also locked his wife in a room. When someone opened the door and she came out of the room, she was abused in filthy languages and turned out of her matrimonial home. She came weeping to her parents place and also informed the family members about the treatment, to which, she was subjected to. The informant also tried to get the matter settled through Sarpanch and other persons, but the matter could not be settled. The informant also took his daughter to her in-laws place, to get her settled there, but they were turned out of the house and the informant had to bring his daughter back. It is further stated that at times, the husband used to visit his place but looking at his attitude, she was not allowed to go to her in-laws place. On 1.6.1990, there was marriage of the younger daughter of the informant in which, the accused, Chhedilal Razak was also invited and he had attended the marriage. Thereafter, on 4.6.1990, he returned back along with his wife. Even though, the daughter of the informant was not willing to go with him but she was sent to her in-laws place. On 1.6.1990, there was marriage of the younger daughter of the informant in which, the accused, Chhedilal Razak was also invited and he had attended the marriage. Thereafter, on 4.6.1990, he returned back along with his wife. Even though, the daughter of the informant was not willing to go with him but she was sent to her in-laws place. On 8.6.1990, one co-villager of the accused informed the informant that his daughter had died, whereupon, he went to the matrimonial home of his daughter and found the dead body of his daughter in burnt condition. He gave the written information at the Police Station on 8.6.1990, alleging that the father-in-law of the deceased Girdhari Rajak, the brothers-in-law Nunulal Razak and Tulsi Razak and the husband Chhedilal Razak had burnt his daughter to death. On the basis of the written report, Pirtand P.S Case No. 38 of 1990, corresponding to G.R. No. 1027 of 1990, was instituted for the offence under Sections 304-B/34 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted the charge-sheet against three accused appellants, who are the husband and the brothers-in-law of the deceased. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused persons for the offence under Sections 304-B/34 of the Indian Penal Code and upon the accused persons pleading not guilty and claiming to be tried, they were put to trial. 5. In course of trial, 17 witnesses were examined on behalf of the prosecution, out of whom, PW-4 Kishun Mahto, PW-5 Meghlal Turi, the seizure list witness of the burnt articles and PW-6 Moti Razak another seizure list witness of the burnt articles, have turned hostile. PW-14 Soma Devi and PW-16 Jai Prakash Narayan Sinha were only tendered by the prosecution. The defence is the denial of the charge, but no evidence was adduced by the defence. 6. PW-12 Narayan Baitha is the informant of the case. He has stated that his daughter, Gita was married to the accused Chhedi Razak in the month of March, 1988 and after the marriage, she was living in her matrimonial home. The defence is the denial of the charge, but no evidence was adduced by the defence. 6. PW-12 Narayan Baitha is the informant of the case. He has stated that his daughter, Gita was married to the accused Chhedi Razak in the month of March, 1988 and after the marriage, she was living in her matrimonial home. She was being subjected to cruelty and torture for the demand of dowry by her in-laws, namely, Girdhari Razak, Nunulal Razak, Tulsi Razak and Chhedilal Razak and they were demanding radio and gold ring, which he had agreed to give at the time of marriage. In the year 1989, Gita came to her parents place and thereafter, she again went to her in-laws place. Again, she came to her parents place and informed that she was locked in a room and when someone opened the room, she came to her parents place, as her husband was saying to kill and throw her in the well. Thereafter, this witness took the help of Sarpanch and other persons and they all went to the in-laws place of his daughter, but they returned back and informed him that the in-laws of Gita behaved improperly. This witness also went to the in-laws place alongwith his daughter, but they were turned out after being abused in filthy languages by the accused Chhedilal Razak. Thereafter, the husband of his daughter came to his place, but when he was asked to keep his wife properly, he went back. He again came back after two months, but when he was asked to keep his wife properly, he again raised the demand for gold ring and radio, and went back without taking Gita along with him. This witness had also gone to the in-laws place of his daughter, but the accused persons did not agree to keep her properly till the demand of dowry was met. He has stated that in the meantime, the accused husband used to visit his place of and on. On 1.6.1990, the younger daughter of this witness was married in which, Chhedilal Razak was invited and he had attended the marriage. After four days, i.e. on 4.6.1990, his daughter was sent with her husband to her matrimonial home. On 8.6.1990, one Debchandra Prasad Verma of that village came and informed this witness that his daughter had died by burning. On 1.6.1990, the younger daughter of this witness was married in which, Chhedilal Razak was invited and he had attended the marriage. After four days, i.e. on 4.6.1990, his daughter was sent with her husband to her matrimonial home. On 8.6.1990, one Debchandra Prasad Verma of that village came and informed this witness that his daughter had died by burning. Thereafter, he went to the place of occurrence and saw the dead body in completely burnt condition and went the Police Station and gave the written information, which he has identified and the same was marked Exhibit-5. He has identified the accused persons in the Court. In his cross-examination, he has stated that the fact of demand of dowry was known only to him and to the family members of Chhedilal. He has admitted that in his FIR, he could not mention that the demand of dowry was also made by Girdharilal, Tulsi and Nunu. He has also stated that in the written report, it is not written that Chhedilal Razak used to visit his house at the intervals of 15 days to one month. It is also admitted that previously he had not given any information about subjecting his daughter to cruelty and torture for the demand of dowry. He has denied the suggestion that due to some illicit relationship, his daughter had committed suicide. 7. PW-10 Gangadhar Ram and PW-11 Nandlal Ram have stated that they were informed that the husband of the deceased used to demand gold ring and radio and for that, he used to torture the deceased. In his cross-examination, PW-10 Gangadhar Ram has stated that he could not say the date on which he was given this information and PW-11 Nandlal Ram has stated that he was informed about this by the deceased herself. 8. PW-13 Rita Devi, who is the sister-in-law (bhabhi) of the deceased and PW-15 Debchandra Verma, have only stated that the deceased was being subjected to cruelty and torture, by her husband, but they have not stated anything about the demand of dowry. 9. PW-8 Arjun Singh and PW-9 Basudeo Mahto, are the witnesses who had tried to settle the matter at the request of the informant, which could not materialise and they had also seen the dead body in the burnt condition at the house of the accused persons. 9. PW-8 Arjun Singh and PW-9 Basudeo Mahto, are the witnesses who had tried to settle the matter at the request of the informant, which could not materialise and they had also seen the dead body in the burnt condition at the house of the accused persons. PW-9 Basudeo Mahto has stated that he was informed that the son-in-law of the informant used to subject the deceased to cruelty and torture for the demand of ring and radio. 10. PW-1 Suresh Ram is a formal witness, who has proved the FIR as Exhibit-1. PW-2 Krishna Prasad and PW-3 Madhusudan Tiwari are the witnesses to the inquest report of the dead-body of the deceased, which has been proved as Exhibit-2, by PW-2. These witnesses have also stated that the deceased had committed suicide at the roof of her house and they have also stated that she was not being subjected to any cruelty and torture for any demand of dowry. They have also stated that the door of the roof was bolted at the time of occurrence and these witnesses had pushed the door open and had brought the dead body of the deceased down the roof. 11. PW-7 Dr. B.P. Singh is a member of the Medical Board, which had conducted the post-mortem examination on the dead body of the deceased. The Medical Board consisted of three Doctors, who were Dr. B.P. Singh, Dr. S.N. Prasad and Dr. R.M. Prasad and they found the following injuries on the dead body:- Ante-mortem burn injuries on whole body except both feet was found. There was presence of characteristic smell of kerosene oil. Singeing of the hair, eye brows a sooty blackening of the skin were present. Redness and vesication were present. Vesication contained serous fluid and its base was red and inflamed. The skin surrounding the vesication was bright red. Lower limbs were flexed at knee joint. No scratch was found on forehead. On dissection:- (a) Lyrnx trachea - NAD (b) Hyoid bone intact (c) Lungs congested. Chambers of heart full of blood. (d) Liver, spleen and kidney were congested. (e) Stomach contained semi-digested food stuff (rice) and its mucus membrane - NAD. (f) Urinary bladder was empty. (g) Uterus about two months size gravid. Product of conception was found. (h) Skull - NAD. Brain and its meanings congested. Chambers of heart full of blood. (d) Liver, spleen and kidney were congested. (e) Stomach contained semi-digested food stuff (rice) and its mucus membrane - NAD. (f) Urinary bladder was empty. (g) Uterus about two months size gravid. Product of conception was found. (h) Skull - NAD. Brain and its meanings congested. He has stated that the cause of death was shock as a result of extensive burn injury which was more than 90%. He has identified the post-mortem report to be in his pen and signature and also bearing the signatures of the other two members of the Board and the same was marked as Exhibit-4. 12. PW-17 Ram Eqbal Yadav is the I.O. of the case. He has stated that on 8.6.1990, when he was posted as Officer-in-Charge at Pirtand Police Station, at 7.15 a.m. in the morning, the informant Narayan Baitha came and gave a written information which was earlier marked Exhibit-5. He has identified the endorsement made by him on the written report, which was marked Exhibit-6. Thereafter, he prepared the formal FIR, which was earlier marked Exhibit-1, which he identified. He recorded the re-statement of the informant and prepared the inquest report of the dead body of the deceased, which also he proved and the same was earlier marked Exhibit-2. He sent the dead-body for post-mortem examination. He has given the description of the place of occurrence and has stated that there was a kucha room on the upper floor of the house, in which, he was informed that the deceased used to sleep on a cot. He found the cot burnt at several places and there were other signs of burning in the said room. Some cloths and bedding materials were also found to be burnt and a kerosene oil container was also found in the room, from which the smell of kerosene oil was emanating. He had seized some burnt articles and had prepared the seizure list, which he had proved as Exhibit-7. He recorded the statements of the witnesses and submitted the charge-sheet. There is nothing of much importance in the cross-examination of this witness. 13. In their statements recorded under Section 313 of the Cr PC, the accused persons have stated that they would give their defence in writing, but no evidence was adduced by the defence. He recorded the statements of the witnesses and submitted the charge-sheet. There is nothing of much importance in the cross-examination of this witness. 13. In their statements recorded under Section 313 of the Cr PC, the accused persons have stated that they would give their defence in writing, but no evidence was adduced by the defence. On the basis of the evidence on record, all the accused appellants have been convicted and sentenced for the offence as aforesaid. 14. Learned counsel for the appellants has submitted that the impugned judgment passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the prosecution has not been able to bring home the charge against the appellants beyond all reasonable doubts. It is submitted that the main allegation of subjecting the deceased to cruelty and torture for the demand of dowry, if any, was mainly against the accused husband Chhedilal Razak only, but the entire family members have been made accused in the case, which makes the prosecution case doubtful. Learned counsel also submitted that PW-2 Krishna Prasad and PW-3 Madhusudan Tiwari have stated that the deceased had committed suicide at the roof of the house after closing the door, which they had pushed open and brought the dead body of the deceased down the roof. These witnesses have also stated that she was not being subjected to any cruelty and torture for any demand of dowry, and she was a lady of questionable character and accordingly, it cannot be said that the deceased was being subjected to cruelty and torture for the demand of dowry and she was done to death for the said demand. Learned counsel accordingly, submitted that it is a fit case in which the accused appellants ought to have been acquitted. 15. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that admittedly, the marriage had taken place in the year 1988 and the occurrence had taken place on 8.6.1990, i.e. within seven years of the marriage. The deceased had died an unnatural death due to burning. 15. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that admittedly, the marriage had taken place in the year 1988 and the occurrence had taken place on 8.6.1990, i.e. within seven years of the marriage. The deceased had died an unnatural death due to burning. The witnesses, particularly PW-12 Narayan Baitha, the father of the deceased and the informant, has specifically stated that the accused persons used to subject the deceased to cruelty and torture for the demand of dowry, such as gold ring and radio and even soon before her death, there is evidence that she was being subjected to cruelty for such demand. Learned counsel accordingly, submitted that the prosecution has proved the case beyond all reasonable doubts that the deceased had died an unnatural death within seven years of her marriage and soon before her death, she was being subjected to cruelty and torture for the demand of dowry by her husband and brothers-in-law and accordingly, the prosecution has been able to prove the fact that the dowry death of the deceased was committed by the accused appellants and there is no illegality in the judgment of conviction and order of sentence, passed by the Trial Court below. 16. Having heard learned counsels for both the sides and upon going through the record, we find that PW-12 Narayan Baitha, who is the informant of the case, has fully supported the case, stating that the accused persons were subjecting the deceased to cruelty and torture for the demand of dowry, such as gold ring and radio etc. Though this witness has stated that all the accused persons were subjecting the deceased to cruelty and torture for such demand, but the fact remains that the main allegation is only against the husband of the deceased, i.e. the accused Chhedilal Razak and he has admitted in his cross-examination that in his FIR, he could not mention that the demand of dowry was also made by the other accused persons. This fact is also corroborated by PW-10 Gangadhar Ram, PW-11 Nandlal Ram and PW-9 Basudeo Mahto, who had the information about subjecting the deceased to cruelty and torture for the demand ring and radio, only by the husband. This fact is also corroborated by PW-10 Gangadhar Ram, PW-11 Nandlal Ram and PW-9 Basudeo Mahto, who had the information about subjecting the deceased to cruelty and torture for the demand ring and radio, only by the husband. The other witness, particularly the family member of the deceased, namely PW-13, Rita Devi has also stated about the cruelty and torture to the deceased only by the husband, though she has not stated anything about the demand of dowry. PW-15 Debchandra Verma has also stated about the cruelty and torture to the deceased only by the husband. Thus, we are of the considered view, that the prosecution has been able to prove the allegation of subjecting the deceased to cruelty and torture for demand of dowry, soon before her death, only against the husband, i.e. the accused Chhedilal Razak and not against the appellants, Nunulal Razak and Tulsi Razak, who are the brothers of the husband. It is apparent that Nunulal Razak and Tulsi Razak, have been made accused in the case, only due to the fact that they are the brothers of the deceased and might have taken the side of their brother on some occasions, but the prosecution has certainly not been able to prove the fact that they were also subjecting the deceased to cruelty and torture for the demand of dowry, soon before her death. The other facts that the deceased died an unnatural death by burning and the death had been caused within seven years of the marriage, are fully established by the prosecution. 17. The evidence of PW-2 Krishna Prasad and PW-3 Madhusudan Tiwari that the deceased had committed suicide at the roof of the house after closing the door, which they had pushed open and brought the dead body of the deceased down the roof, is in the teeth of the evidence of the I.O. and PW-17 Ram Eqbal Yadav, who had found that the deceased had been burnt in her room and the cot on which she used to sleep and the bedding materials were also found burnt, apart from the other articles in the room. As such their evidences do not inspire confidence and are only fit to be discarded. As such their evidences do not inspire confidence and are only fit to be discarded. This apart, even if it is accepted that the deceased had committed suicide, the death being an unnatural death, the offence under Section 304-B of the Indian Penal Code is still made out. 18. Section 304-B of the Indian Penal Code reads as follows:- "304-B. 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." Thus, it is clear from the plain reading of this section that for attracting the deeming provision for the offence under Section 304-B of the Indian Penal Code, the prosecution has to prove the facts that (a) the death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances (b) such death had taken place within seven years of the marriage (c) soon before her death, she was being subjected to cruelty and harassment by her husband, or any relative of her husband and (d) such cruelty and harassment was for, or in connection with any demand of dowry. Authorities - Biswajit Halder @ Babu Halder and Others vs. State of W.B. (2008) 1 SCC 202 and Sher Singh @ Partapa vs. State of Haryana, (2015) 3 SCC 724 . 19. In the present case, we find that the prosecution has been able to prove all the aforesaid ingredients of Section 304-B of the Indian Penal Code, against the appellant, Chhedilal Razak only, who is the husband of the deceased, beyond all reasonable doubts. So far as the other two appellants, Nunulal Razak and Tulsi Razak are concerned, the prosecution has failed to prove the fact that they were also subjecting the deceased to cruelty and torture for the demand of dowry, soon before her death. So far as the other two appellants, Nunulal Razak and Tulsi Razak are concerned, the prosecution has failed to prove the fact that they were also subjecting the deceased to cruelty and torture for the demand of dowry, soon before her death. We are of the considered view that in the facts of this case, the appellants, Nunulal Razak and Tulsi Razak, being the brothers of the husband of the deceased, are entitled to the benefits of doubt. 20. Since the prosecution has been able to prove all the ingredients of Section 304-B of the Indian Penal Code, against the appellant, Chhedilal Razak, it shall be deemed that he had committed the dowry death of the deceased. The burden lied upon him to prove his innocence, which he has failed to discharge. 21. For the foregoing reasons, the impugned judgment of conviction and order of sentence dated 5.2.1993, passed by the learned 5th Additional Sessions Judge, Giridih in S.T. No. 138 of 1991, so far they relate to the appellants, Nunulal Razak and Tulsi Razak, are hereby, set aside. Both these appellants are given the benefits of doubt and they are acquitted of the charges. These appellants are on bail and they are discharged from the liabilities of their respective bail bonds. 22. We however, do not find any illegality in the aforesaid impugned judgment of conviction and order of sentence, so far as they relate to the appellant No. 3 Chhedilal Razak, who is the husband of the deceased, which we hereby, affirm. The appellant, Chhedilal Razak is also on bail. His bail bond is hereby, cancelled and he is directed to surrender in the Court below forthwith, for serving out the sentence. The Trial Court below is also directed to issue process forthwith, compelling the surrender/production of the appellant Chhedilal Razak, for serving out the sentence. 23. This appeal is accordingly, allowed in part. Let the Lower Court Records be sent back forthwith to the Court concerned, alongwith a copy of this judgment. Appeal allowed.