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2017 DIGILAW 1902 (JHR)

Shambhu Nath Mishra v. State of Jharkhand

2017-11-07

RATNAKER BHENGRA

body2017
JUDGMENT : The present appeal is directed against the judgment of conviction and order of sentence dated 25.02.2003 passed by the Additional District & Sessions Judge, Fast Track Court No.1. Jamshedpur, East Singhbhum whereby and where under the appellant and his son N awal Kishore Mishra were convicted under Section 304(B)/34 of the Indian Penal Code and sentenced this appellant and his son to undergo rigorous imprisonment for a period of seven years and further the learned Court below passed order that the period if any undergone in custody will be set off. 2. Here it is pertinent to note that son of the present appellant namely Nawal Kishore Mishra was also convicted under Section 304(B)/34 of the Indian Penal Code. The said Nawal Kishore Mishra has filed separate Criminal Appeal (SJ) No. 460 of 2003 but he died and his appeal was abated by order of this Court dated 13.06.2017. 3. The prosecution case in brief as per the written report of the informant PW 4 Hiralal Mlshra who is father of the deceased Sudha Mishra is that his daughter Sudha Mishra was married with Nawal Kishore Mishra (now deceased) son of Sambhu Nath Mishra or the appellant in the year 1988 according to the Hindu rituals. The informant gave five tola of gold, scooter, clothes, utensil and cash as a dowry to the father of the bride-groom and his son-in-law. After marriage his daughter living with her husband but she was subjected to harassment by her husband. her father-in-law and motherin-law. brother-in-law and sister-in-law who demanded to bring one colour T.V., cash Rs. 20.000/- from her father as a dowry otherwise she would be down to death. His daughter informed him regarding such demand of dowry and harassment meted to her. On 18.06.1995 his daughter Sudha Mishra and his son-in-law cams to his house to attend the marriage of her younger daughter Renu. His son-in-law Nawal Kishore Mishra made a demand of Rs. 20.000/- in cash and a colour T.V. in presence of his family and relation. When the informant expressed his inability to fulfill such demand, then Nawal Kishore Mishra forcefully took back his daughter to his own house at Mango at 8 p.m. and also threatened the informant that if would not pay him Rs. 20,000/- and give a colour T.V., he would found the dead body of his daughter. When the informant expressed his inability to fulfill such demand, then Nawal Kishore Mishra forcefully took back his daughter to his own house at Mango at 8 p.m. and also threatened the informant that if would not pay him Rs. 20,000/- and give a colour T.V., he would found the dead body of his daughter. On 20.06.1995 at about 6 p.m. the younger brother of his son-in-law Ratan came to his house and informed that his daughter's condition was not good. Informant tried to take details regarding the condition of his daughter from the said Ratan but Ratan fled away without giving any information. The informant rushed to his daughter's matrimonial home at Mango where he found the dead body of his daughter hanging with a ceiling fan and none of the members of his daughter's in-laws family were present there. In his presence the police arrived there and they pulled down the dead body of his daughter and kept it on the ground. The dead body was taken to the MGM Hospital where on the advice of doctor, her dead body was kept in the Ice Room. 4. On the basis of the written report of informant Mango P.S. Case No. 187 of 1995 was registered against the accused persons under Section 304(B) of the IPC. After completion of the investigation charge-sheet was submitted under Section 304- B of the IPC against the other accused persons including this appellant. On submission of charge-sheet, cognizance was taken and the case was committed to the Court of Sessions. Charge under Section 304(B)/34 of the IPC was framed and explained to the accused persons to which they pleaded not guilty and claimed to be tried. After the conclusion of the trial, appellant was convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution in support of its case examined altogether 11 witnesses. 6. PW 1 Shanti Mishra is the wife of the informant and mother of the deceased. At para 1 she said that her deceased daughter was married seven years ago. After marriage, appellant including the other family members of in-laws of her daughter demanded Rs. 20,000/- and a colour T.V. But they cannot give the same. At para 2 she further stated that dowry was demanded from her daughter and daughter used to say about the same: LG them and for dowry they used to assault her daughter. After marriage, appellant including the other family members of in-laws of her daughter demanded Rs. 20,000/- and a colour T.V. But they cannot give the same. At para 2 she further stated that dowry was demanded from her daughter and daughter used to say about the same: LG them and for dowry they used to assault her daughter. At para 3 she stated that in the marriage of tier second daughter Renu in 1995, her daughter Sudha and son-in-law Nawal Kishore had come to their house. In her presence Nawal assaulted her daughter and on the next day he took her daughter to his residence and threatened that if Rs. 20,000 and colour T.V. is not given then they will get the body of their daughter. At para 8 she said her daughter was married in 1988. At para 16 of her cross-examination she stated that father-in-law of her deceased daughter resided in Barma Mines in Q. No. L-44/63. At para 18 she stated that her daughter Sudha and son-in-law resided in Jawahar Nagar, Road No.4 at Mango. 7. PW 2 Arun Kumar Mishra is the brother of the deceased and PW 3 Renu Kumari Mishra is the younger sister of the deceased. Both PW 2 and PW 3 stated in their examination-in-chief that on the occasion of marriage of PW 3 on 18.06.1995 Sudha and Nawal Kishore came their home. Nawal assaulted Sudha and said that if money and T.V. is not given then Sudha will be killed. PW 2 and PW 3 further stated that on 20.06.1995, brother-in-law of Sudha came and told that Sudha bhabhi had hanged herself. PW 3 at para 20 stated that Sudha and Nawal resided at Mango. 8. PW 4 Hiralal Mishra is the informant and the father of the deceased Sudha Mishra. In his examination-inchief he stated that his daughter Sudha was married on 4.12.1988 with Nawal Kishore Mishra. He further stated that gauna of his deceased daughter took place on 20.01.1993 and accused took her to their home. After gauna accused demanded Rs. 20,000/- and a colour T.V. He further stated that on 18.06.1995 his son-in-law came to attend the marriage of his second daughter Renu or PW 3 and here also, his accused son-in-law, demanded dowry and assaulted deceased 'Sudha in his presence and threatened to give Rs. 20,000/- and colour T.V. till next day 10 a.m.. otherwise. 20,000/- and a colour T.V. He further stated that on 18.06.1995 his son-in-law came to attend the marriage of his second daughter Renu or PW 3 and here also, his accused son-in-law, demanded dowry and assaulted deceased 'Sudha in his presence and threatened to give Rs. 20,000/- and colour T.V. till next day 10 a.m.. otherwise. his daughter will be done to death. At para 28 of his cross-examination he said accused Nawal Kishore Mishra demanded Rs. 20.000/-and a colour T.V. and told that if demand is not fulfilled on 20th till 10 a.m., then they will get the body of daughter. 9. PW 5 is Dr. Akhilesh Kumar Choudhary who conducted the postmortem examination on the dead body of the deceased Sudha Mishra. He found white dhoti used as a ligature material tied around neck. Knot placed over postero lateral aspect of neck left side ligature over front of neck high up extended obliquely upward and backward on either side and interrupted over back of neck due to hairs. He opined that death was due to asphyxia caused by hanging. At para 3 he stated there was no mark of violence on any part of the body of the deceased. He proved the post-mortem report which was marked as Ext. 2. 10. PW 6 Sunita Das is the tenant of Nawal Kishore Mishra. In her examination-in-chief she stated that on 20.06.1995 she heard crying of child at about 1.30 p.m. or 2 p.m. coming from the house of Nawal Kishore Mishra. When she went to the house of Nawal Kishore Mishra. she saw the door was closed. Child was crying regularly. They called the neighbour. They saw that wife of Nawal Kishore Mishra was hanging. Paras r Singh informed the police. 1 11. PW 7 Bharti Das is also the S a tenant of Nawal Kishore Mishra and gotni a of PW 6. She was tendered. 12. PW 8 Paras Nath Singh is the a neighbour of the deceased Sudha Mishra. n In his examination-in-chief. he stated II that he was informed by the tenant of d Nawal Kishore Mishra that child was crying in her landlord's house. He went to the Veranda from back side and when he removed the curtain with help of stick, he found that deceased was hanging. Then he went to the Mango Police Station and informed the police. he stated II that he was informed by the tenant of d Nawal Kishore Mishra that child was crying in her landlord's house. He went to the Veranda from back side and when he removed the curtain with help of stick, he found that deceased was hanging. Then he went to the Mango Police Station and informed the police. He proved his signature on the inquest report which was marked as Ext. 3. In para 4 of his cross-examination he stated that his house is 20-22 yards away from the house of Nawal Kishore Mishra. Nawal Kishore Mishra was living with his wife in his house where incident occurred. Both husband and wife lived peacefully and he did not hear incidence of any quarrel between the two. 13. PW 9 Shashikanta is also the neighbour of Nawal Kishore Mishra. In her examination-in-chief she reiterated almost the same as PW 8 and PW 6. 14. PW 10 Ram Awdesh Singh is the Investigating Officer of the case. He proved the endorsement on the written report which was marked as Ext. 4. 15. PW 11 Anup Prasad is the inquest report witness. He has proved his signature on the inquest report, which was marked as Ext.-3/l. ARGUMENTS ON BEHALF OF THE APPELLANT 16. Learned counsel for the appellant, at the outset, has submitted that his basic argument is that the accusation was made against five persons initially, out of which, three persons have been acquitted by the learned Court below and the Cr. Appeal (SJ) No. 460 of 2003 of one of the appellants, namely, Nawal Kishore Mishra who was the husband of the deceased Sudha Mishra stands abated vide order dated 13.06.2017 as he has passed away. Counsel for the appellants submitted that on the same set of evidences, three other persons were acquitted, namely, Manju Devi, the mother-in-law of the deceased, Ratan Kishore. Mishra brother-in-law of the deceased and Pankaj Kumari sister-in-law of the deceased and hence conviction of the remaining sole appellant under Section 304(B) of the Indian Penal Code also cannot be sustained. Counsel for the appellants submitted that on the same set of evidences, three other persons were acquitted, namely, Manju Devi, the mother-in-law of the deceased, Ratan Kishore. Mishra brother-in-law of the deceased and Pankaj Kumari sister-in-law of the deceased and hence conviction of the remaining sole appellant under Section 304(B) of the Indian Penal Code also cannot be sustained. He has in the beginning read out from the written report and pointed out how specific allegations were made against the husband of the deceased that he had made demand and that it was the husband who had threatened her, so learned counsel for the appellants has said that from the initial complaint itself it is apparent that the demand and the threat to the persons and life of the deceased was, if at all made, it was more specifically made by the husband and for that he was convicted under Section 304- B of the Indian Penal Code. However, three other accused have been acquitted for the same set of accusation and the present appellant has been convicted without any evidence. One more argument which counsel has advanced is that the appellant who is father-in-law of the deceased was living separately. Counsel has taken us to the certain main aspects of the depositions or the evidences of the witnesses, particularly to the related or more interested witnesses and highlighted some aspects of the evidence which would go in his favour. Regarding the deposition of PW 1 Shanti Mishra, the mother of the deceased, counsel has referred to an incident which is before the death of the deceased wherein the husband assaulted the deceased and submitted that this indicates that the husband was estranged from his wife that does not mean appellant was also similarly placed to. Learned counsel also pointed out from the evidence of PW I that the case against the in-laws were instituted only on the basis of suspicion. 17. Learned counsel for the appellant has then referred to the evidence of PW 2 Arun Kumar Mishra who is brother of the deceased and son of the informant. Learned counsel also pointed out from the evidence of PW I that the case against the in-laws were instituted only on the basis of suspicion. 17. Learned counsel for the appellant has then referred to the evidence of PW 2 Arun Kumar Mishra who is brother of the deceased and son of the informant. Regarding his evidence, counsel for the appellant has submitted that it has come that at Mango Nawal Kishore Mishra used to reside with his deceased wife Sudha and no one else from the deceased in-laws family used to live therein, rather appellant including the other accused persons used to live in Barma mines. Counsel has argued that when they were living separately, it is unlikely that appellant was harassing or torturing the deceased and particularly appellant cannot be held accountable for the offence stipulated under Section 304(B) of the Indian Penal Code. Learned counsel then referred to the evidence of PW 3 Renu Kumari Mishra who is sister of the deceased and daughter of the informant and pointed out that demand of Rs. 20,000/- and colour IV is against all the in-laws collectively, and submitted that it is clear that the demand is indicated against all the accused persons and it is seen that in spite of that three of the accused persons have already been acquitted. Counsel for the appellant has then read out para 2 of the evidence of this witness PW 3 and pointed out that on the occasion of marriage of PW 3 on 18.06.1995 her deceased sister Sudha and Nawal Kishore Mishra attended her marriage. On the occasion of marriage Nawal Kishore Mishra demanded colour IV and Rs. 20,000/-. Counsel for the appellant has then referred to the evidence of the informant PW 4 who is the father of the deceased, namely, Hira Lal Mishra and said that there is general accusation against all the accused of making demands of the aforesaid mentioned items. The demands have been mentioned which are in general nature. This witness like the previous witnesses also referred to the incident of 18.06.1995 that in occasion of marriage of PW 3 and submitted that the demand of IV and Rs. The demands have been mentioned which are in general nature. This witness like the previous witnesses also referred to the incident of 18.06.1995 that in occasion of marriage of PW 3 and submitted that the demand of IV and Rs. 20,000/- was made by Nawal Kishore Mishra and, therefore, counsel, at this juncture, again reiterates that it is very apparent that more or less consistently it is indicated that the demands, if at all, that were made for IV and Rs. 20,000/- are attributed in general fashion to all the accused including the appellant but particularly has been made against the deceased husband only. In the initial complaint it was said that threat was given by the deceased husband himself for the fulfillment of dowry demand. Learned counsel for the appellant has pointed out, referring to para 12 that it is clear that Nawal Kishore Mishra used to live at Mango while Sambhu Nath Mishra, current appellant used to live at Barma Mines. Referring to the evidence of PW 4, learned counsel pointed out to para 28 where it has been stated by informant or PW 4 that Nawal Kishore Mishra demanded Rs. 20,000/- and TV and also threatened that if the demand is not fulfilled then she will be done to death. Counsel then submitted that from this threat in para 28 it is very much clear that the allegation under Section 304-B of the Indian Penal Code would solely fall upon Nawal Kishore Mishra, the husband of the deceased and not on this appellant who happens to be father-in-law of the deceased. Counsel for the appellant has also taken us to the evidence of PW 6 and PW 7 who are tenants and PW 8 and PW 9 who are neighbour of the deceased Sudha Mishra and pointed out that from their evidences it indicated that on 20.06.1955 they had gone to the house of Nawal. Kishore Mishra and saw that door was closed and heard the crying of a child and then discovered that the wife of Nawal Kishore Mishra was hanging. Kishore Mishra and saw that door was closed and heard the crying of a child and then discovered that the wife of Nawal Kishore Mishra was hanging. so counsel has argued, at this juncture that basically the evidence of these witnesses are that on that fateful day they had made a discovery of the dead body that was hanging in the house of Nawat Kishore Mishra and on that date it is nowhere said that this appellant was also there and in any way the appellant lives at Barma Mines which is far away from the place of occurrence. It has also come from the evidence of PW 8 and PW 9, who are neighbour of deceased that the relationship between the deceased Sudha and the Nawal Kishore Mishra or husband was cordial and they were living together peacefully. 18. Learned counsel for the appellant has pointed out from the evidence of PW 9 and submitted that this witness Shashikant has said that Sudha's mother was saying that why she died for the jewelry for which couqsel submitted that deceased had some jewelry which belonged to her and her own parent had taken away the said jewelry for some reason and being aggrieved she had apparently killed herself. 19. Learned counsel for the appellant taking the evidence of the own family members as well as the evidence of the tenants and the neighbours submitted that from the evidences it is dear that the allegations cannot be sustained against this appellant under Section 304-B of the Indian Penal Code. Counsel for the appellant referring to evidence of doctor submitted that this is basically the evidence indicating the situation and how death took place, it does not point to the culpability of the appellant in the light of the other various facts and circumstances. Counsel referring to the evidence of I.O. PW 10 Ram Awadhesh Singh submitted that from the evidence of I.O., nothing incriminating has come that pin point the allegations to be sustained against this remaining appellant. On conclusion, rounding up his argument, counsel for the appellant has said that from the evidences it cannot be said that there is any consistent evidence that the demand was being made and harassment and torture being made by this appellant pertaining to the deceased. On conclusion, rounding up his argument, counsel for the appellant has said that from the evidences it cannot be said that there is any consistent evidence that the demand was being made and harassment and torture being made by this appellant pertaining to the deceased. In any event, he has also said that for the same kind of allegations, three other accused persons, namely, mother-in-law, brother-in-law and sister-in-law of the deceased Sudha have already been acquitted and this appellant also stands on the same footing and .therefore, he should also be allowed the benefit of acquittal. He has further pointed out that it is clear from the evidence that the appellant was residing separately from his son at Barma Mines and his son Nawal Kishore Mishra used to reside at Mango and the occurrence of death had taken place in Mango. so the allegation under Section 304-B of the Indian Penal Code cannot be sustained against the appellant. Moreover learned counsel also submitted from the evidence of doctor that there was no sign of violence on the body to the deceased so this appellant would also be not responsible for the death. Learned counsel for the appellant has also argued that for the offence under Section 304- B of the Indian Penal Code. the allegations must have element of harassment and torture and it must be linked up to the demand of dowry and nowhere has it come there was any element of torture. harassment that would linked up to this appellant. Hence. the allegation under Section 304-B of the IPC would not be sustained and here too since the allegations are similar to the ones made against three acquitted accused persons hereto. this appellant should be allowed the same benefit of acquittal. ARGUMENTS OF THE APP / STATE 20. Learned counsel for the State. learned A. P. P. submitted that it is clear from the evidence of prosecution witnesses that demand of dowry of IV and Rs. 20.000/- were made by the accused persons. These allegations of demand can also be attributed to the three other persons who have been acquitted. However. this remaining appellant being head of the family and so he cannot escape from the responsibility for the demand of dowry and on this ground alone appellant should be held liable. He has pointed out from para 20 of the evidence of PW 4. However. this remaining appellant being head of the family and so he cannot escape from the responsibility for the demand of dowry and on this ground alone appellant should be held liable. He has pointed out from para 20 of the evidence of PW 4. who is the informant or father of the deceased that jewelry. scooter and IV were demanded by this appellant. therefore. the allegation of demand is clearly made out and hence judgment of conviction passed by the learned Court below requires no interference FINDINGS 21. Having heard both counsels. having gone through the records of the case, and in the facts and circumstances of the case it is seen that the conviction in this case is under Section 304-B/34 of the Indian Penal Code. Very briefly, it can be said that from the evidence it seems that demand is of a general nature was made against all the accused persons to that extent it seems that demand may be linked up to all of them. Since the conviction is for the one under Section 304- B of the IPC it has to be seen whether there was any such demand and for which there was harassment and torture by the appellant who happens to be the father-in-law of the deceased and it should also be seen whether there was such harassment and torture so as to lead to death or dowry death and in this case the death that may be brought within the purview of Section 304-B of the IPC. 22. It is seen from the evidence of the members of the family of the deceased i.e. PW I, PW 2, PW 3 and PW 4 that demand was made but torture and harassment or cruelty does not seem to be made out against this appellant that was meted out to the deceased. However, on the other hand, it has consistently come in the evidences of PW 1 or mother of deceased, PW 2 or brother of deceased, PW 3 or younger sister of deceased and PW 4 or father of deceased that on the occasion pertaining to the marriage of PW 3 Renu, the younger sister whose marriage took place on 18.06.1995 when Nawal Kishore Mishra and deceased Sudha had come to attend the marriage then Nawal Kishore had assaulted the deceased in their presence. So, it is clear from the evidences of PW 1. PW 2, PW 3 and PW 4 that it was the husband of the deceased who was capable of resorting to physical violence and he did so on the particular occasion of marriage of Renu or PW 3 in presence of PW 1. PW 2, PW 3 and PW 4. It has specifically come in the evidence of PW 4 at paragraph 28 that Nawal Kishore Mishra had demanded Rs. 20,000/- and IV and if his demand was not fulfilled then she would be done to death. Learned counsel for the appellant has rightly submitted that though unfortunate one of the appellant Nawal Kishore Mishra or husband of the deceased has passed away but the conviction, if any under Section 304- B of the IPC would lie on this Nawal Kishore Mishra or the husband of the deceased and not on this accused or remaining appellant. It has come in the evidences of other witnesses particularly witnesses PW 8 and PW 9 who happens to be the neighbour of the deceased Sudha and their evidence if taken together indicates that the relationship between the husband and wife was cordial and the occurrence had taken place at Mango in the residence of Nawal Kishore Mishra where he used to reside with his deceased wife Sudha and her in-laws were residing separately in Barma Mines. So the immediate cause of death on that fateful day cannot be connected to this appellant or the father-in-law of the deceased. Moreover, it has been revealed in the evidence of PW 9 and PW 11 that the deceased Sudha was aggrieved because her parents had taken some jewelry away from her and because of this the deceased, being aggrieved resorted to her own death. Moreover since three accused persons namely, Manju Devi, Ratan Kishore Mishra and Pankaj Kumari have already been acquitted on the same set of evidence by the learned Court below, it may not be proper to convict this appellant on the same set of evidences. 23. In the result, this appeal is allowed. The appellant is acquitted giving benefit of doubt. The impugned judgment of conviction and order of sentence dated 25.02.2003, passed by the Additional District and Sessions Judge, Fast Track Court No.1, Jamshedpur, East Singhbhum in S.T. No. 67 of 1996 against the appellant, is set aside. 23. In the result, this appeal is allowed. The appellant is acquitted giving benefit of doubt. The impugned judgment of conviction and order of sentence dated 25.02.2003, passed by the Additional District and Sessions Judge, Fast Track Court No.1, Jamshedpur, East Singhbhum in S.T. No. 67 of 1996 against the appellant, is set aside. Appellant is discharged from the liability of the bail bonds. Appeal allowed.