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2017 DIGILAW 2080 (JHR)

Manesh Mahto v. State of Jharkhand

2017-12-02

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned amicus curiae for the appellant appointed by the Court, and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 17.06.2008 and Order of sentence dated 21.06.2008, passed by the learned Additional Sessions Judge, F.T.C. III, Hazaribagh, in S.T. No. 468 of 2004, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs. 20,000/-. 3. The prosecution case was instituted on the basis of fardbeyan of Jhaman Mahto, the father of the deceased Kaushalya Devi, recorded on 01.05.2004. The informant has stated that in the month of last December his daughter was married to the accused Manesh Mahto and she was residing at her in-laws' place. On 26.04.2004 his youngest son Bishnu Kumar Mahto had met his sister, who informed him that she was being subjected to cruelty and torture for demand of Rs. 40,000/-and she suspected that she would be killed. On 30.04.2004, Ganesh Mahto, the elder brother of his son-in-law came and informed that his daughter was missing from the house. Thereafter, he went to village Tewardag, the in-laws' village of his daughter and he was informed that the dead body was in a well. When the dead body was taken out he found blood coming out from the nostrils. The informant claimed that his daughter was killed for the demand of dowry by her husband and other in-laws. On the basis of fardbeyan of the informant, Ramgarh P.S. Case No. 123 of 2004 corresponding to G.R. No. 999 of 2004 was instituted for the offence u/s 304-B / 34 of the Indian Penal Code, against the husband and the in-laws and investigation was taken up. After investigation, the police submitted the charge-sheet against the sole accused Manesh Mahto, who is the husband of the deceased. 4. Upon commitment of the case to the Court of Session, charge was framed against the sole accused for the offence under Sections 304-B of the Indian Penal Code and an alternative charge was also framed for the offence u/s 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined 7 witnesses in this case. The I.O. has not been examined in this case. 5. P.W.-6 Jhaman Mahto, is the informant of the case and father of the deceased. This witness has stated that Kaushalya was his daughter, who died about two and a half years ago, within about six months after her marriage. After her marriage she had gone to her in-laws' place and in the meantime she came once to his place also, and she informed that she was being subjected to cruelty and torture for demand of dowry for Rs. 40,000/-. As the demand of dowry could not be met, she continued to be subjected to cruelty and torture by her in-laws and they also used to threatened her to kill. On the date of occurrence, the elder brother of his son-in-law came and informed that his daughter was missing from the house. He along with other persons went to the in-laws' village, but he did not find his daughter. He returned back. Again in the morning he went to that village where he learnt that the dead body of his daughter was in a well. He came back to his own village and again returned with other persons and found the dead body in the well. Police came there and his farbeyan was recorded, and finding it true, he put his signature and one witness also put his signature. He has identified both the signatures on the fardbeyan, which were marked as Exts. 2 and 2/1. He has stated that the accused and his family members had caused the death of the deceased and had thrown the dead body, as the demand of dowry was not met. He had seen the dead body. He has identified the accused in the Court. In his cross-examination this witness has stated that in his fardbeyan he had not stated that the accused persons were demanding dowry. He has also stated that there was a Panchayati, but there was no documentary proof thereof. He has stated that he had given the statement before the police that his son had met the deceased who had informed him about the cruelty and torture for demand of dowry. He has also stated that he had deposited Rs. He has also stated that there was a Panchayati, but there was no documentary proof thereof. He has stated that he had given the statement before the police that his son had met the deceased who had informed him about the cruelty and torture for demand of dowry. He has also stated that he had deposited Rs. 20,000/-in the bank account in the joint names of his daughter and son-in-law, but her daughter had never demanded that money. He had admitted in his cross-examination that he had never seen the accused assaulting the deceased. He has denied the suggestion of giving false evidence. 6. P.W. 5 Ramani Devi, is the mother of the deceased and she has also supported the prosecution case, stating that her daughter was married to the accused Manesh Mahto about six months prior to her death. Her son Asheshwar Mahto had gone to meet her daughter, where she complained that she was being subjected to cruelty and torture for demand of Rs. 40,000/-as dowry, and her son came and informed them. They were not in a position to make the payment of Rs. 40,000/-. Her husband was planning to go to her daughter's place, but the elder brother of her son-in-law came and asked whether Kaushalya had come there. Where upon they started searching their daughter. On the next day, when the family members went to the in-laws' village they were informed that the dead body was in the well. She also went there and saw the dead body and found that her daughter was assaulted to death as there was blood in the nose and mouth of the deceased. She has identified the accused in the Court. In her cross-examination this witness has stated that she had only heard that the accused persons were demanding the dowry of Rs. 40,000/-. She has stated that she had not seen the accused persons killing the deceased and putting her in the well, rather she had only heard about it. She has stated in her cross-examination that her daughter had not come to demand the money deposited in the bank, rather she had come to ask for Rs. 40,000/-demanded by the accused. She has denied the suggestion that her daughter had not been killed by the accused and that earlier also she had attempted to commit suicide. She has also denied the suggestion of giving false evidence. 7. 40,000/-demanded by the accused. She has denied the suggestion that her daughter had not been killed by the accused and that earlier also she had attempted to commit suicide. She has also denied the suggestion of giving false evidence. 7. P.W.-2. Arjun Kumar Mahto and P.W.-4 Bishnu Kumar Mahto are the own brothers of the deceased who have also fully supported the prosecution case that the marriage had taken place in the month of December 2003 and on 30th April, 2004, the elder brother of the accused came and informed them that their sister was missing from the house. Thereafter, they went to the village to search her. But, she could not be found and when they went to the village on the next day they were informed that the dead body was in the well. Both the witnesses had seen the dead body in the well. The dead body was taken out and the inquest report was prepared, on which P.W.-2 Arjun Kumar Mahto has identified his signature which was marked as Ext. 1/1. They have stated that there was demand of Rs. 40,000/-as dowry due to which she was killed by her husband and other family members. In his cross-examination, P.W.-2 Arjun Kumar Mahto has stated that the deceased was married on 01.12.2004 (the year should be 2003) and they got the information about her missing on 30.04.2004. He has stated in his cross-examination that accused Manesh Mahto had demanded the money in his presence. He has stated that he could not say as to how his sister was killed, but has asserted that she had been killed by her husband due to non-fulfillment of the demand of dowry. Both these witnesses have stated that Rs. 20,000/-was deposited in the bank account in the joint names of the deceased and her husband. There is nothing of much importance in their cross-examination. P.W.-4 Bishnu Kumar Mahto has denied the suggestion that the deceased had committed suicide. 8. P.W.-1 Tejpal Mahto is the cousin and P.W.-3 Girdhari Mahto is the uncle of the deceased, who have also fully supported the prosecution case, stating that due to demand of dowry the deceased was killed at her in-laws' place. They had also gone to the in-laws' village of the deceased on the next day and had seen the dead body of the deceased in the well. They had also gone to the in-laws' village of the deceased on the next day and had seen the dead body of the deceased in the well. P.W.-1 is also a witness to the inquest report, and he has also identified his signature on the inquest report, which was marked as Ext. 1. 9. P.W.-7 Dr. Krishna Kumar had conducted the post-mortem examination on the dead body of the deceased on 02.05.2004 at about 10.15 AM, and had found the following:- i. Rigour mortis partially present over lower limbs only (Passing out). Foul smell from body. Body was swollen, eye ball prominent, R/Eye was more protruded, tongue swollen & protruded. Skin was wet with peeling of in some places. On dissection:- (i) Dark red Bruise, present over mid & upper neck on lateral side. There was fracture of tracheal rings with congested laryngeal cartilage. Chest – Lungs were congested, R/-Chamber of Heart full of dark red blood. Abdomen – Viscera such as liver, spleen, kidney were congested, stomach was containing liquefied partially digested food particles about 100 ml. Urinary bladder was empty, Uterus normal. He has stated that time elapsed since death was about 48 to 72 hours. He has opined that the death was caused by asphyxia caused by throttling. He has identified the post-mortem report to be in his pen and signature, which was marked as Ext. 3. In his cross-examination this witness has stated that the pressure mark on the neck was found, but the means of throttling cannot be said. He has also stated that dark red blood was also present over the nostril. He has ruled out the death due to drowning. 10. The statement of the accused was recorded u/s 313 of the Cr.P.C., wherein he has denied the evidence against him. He has stated that on the date of occurrence there was quarrel between the deceased and his family members and in the morning he had fled away due to fear. 11. 10. The statement of the accused was recorded u/s 313 of the Cr.P.C., wherein he has denied the evidence against him. He has stated that on the date of occurrence there was quarrel between the deceased and his family members and in the morning he had fled away due to fear. 11. Learned amicus curiae arguing for the appellant submitted that the impugned Judgment of conviction and Order of sentence are absolutely illegal and cannot be sustained in the eyes of law, in as much as, the case was instituted and charge-sheet was submitted for the offence u/s 304 B of the Indian Penal Code, but in this case an alternative charge u/s 302 of the Indian Penal Code has been framed mechanically, by the Trial Court and ultimately the accused was convicted for the said offence, which was illegal. In support of his contention learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in Jasvinder Saini and Others Vs. State (Government of NCT of Delhi), reported in (2013) 7 SCC 256 . Learned amicus curiae has also submitted that the I.O. has not been examined in this case and the FIR and the Inquest report have not been proved in this case, though only the signature on the fardbeyan and the signatures on the inquest report have been proved. Learned amicus curiae submitted that there is no eye witness to the occurrence and the non-examination of the I.O. has vitally prejudiced the defence, as material discrepancies from the evidence of the P.Ws. could not be taken. Learned amicus curiae has also submitted that the witness supporting the prosecution case are highly interested witnesses, being the close family members of the deceased and no independent witness has been examined in the case, and out of 11 charge-sheet witnesses, only 7 witnesses have been examined. Learned amicus curiae accordingly, submitted that in the facts of this case the appellant is entitled to benefits of doubt, and in any case, if the appellant is convicted, he should be convicted only for the offence u/s 304-B of the Indian Penal Code and should be sentenced for the period already under gone. 12. Learned amicus curiae accordingly, submitted that in the facts of this case the appellant is entitled to benefits of doubt, and in any case, if the appellant is convicted, he should be convicted only for the offence u/s 304-B of the Indian Penal Code and should be sentenced for the period already under gone. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that though there is no eye witness to the occurrence, but the prosecution case is fully supported by the witnesses stating that the deceased was killed by her husband and in-laws for the demand of dowry and she has also being subjected to cruelty and torture for that. It is submitted that in view of the facts that the evidence of prosecution witnesses was corroborated by the medical evidence of P.W.-7 Dr. Krishna Kumar, who found that the death was caused due to throttling, the Court below was perfectly justified in convicting and sentencing the appellant for the offence u/s 302 of the Indian Penal Code. Learned counsel for the State, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that it is not a case where the charge u/s 302 of the Indian Penal Code has been mechanically framed by the Court below. In the FIR it was clearly stated that the blood was found on the nostrils of the deceased and accordingly, there was prima-facie material before the Court at the time of framing the charge to show that the death was homicidal death and not a suicidal death. Accordingly, the charge u/s 302 of the Indian Penal Code was also framed, though alternatively. It is a fact that there is no eye witness to the occurrence, but the witnesses examined in the case are the natural witnesses, and their testimony cannot be discarded only because they are the close relatives of the deceased. The demand of dowry could be known to the close relatives only. Minor discrepancies in their evidence on this point cannot be said to be fatal to the prosecution. The demand of dowry could be known to the close relatives only. Minor discrepancies in their evidence on this point cannot be said to be fatal to the prosecution. The fact remains that the accused appellant is the husband of the deceased and at the time of her death she was residing with the accused appellant. The dead body was found in a well situated in the same village and there were ante-mortem signs of throttling on the dead body of the deceased. The pressure over throttling was applied with such force that there was fracture of tracheal rings and the eye balls were protruded out. In our considered view, the Court below has rightly convicted and sentenced the appellant for the offence u/s 302 of the Indian Penal Code, since there was positive evidence on the dead body to show that the deceased was assaulted to death. This is an unfortunate case in which the deceased was done to death within six months of her marriage, just for the greed of money, and such cases must be dealt with an iron hand to give a positive message to the society. We are not in a position to accede to the request of the learned amicus-curie that the accused be convicted only for the offence u/s 304-B of the Indian Penal Code and be sentenced for the period already under gone. There is no illegality in the impugned Judgment of conviction and Order of sentence, worth interference by this Court. The impugned Judgment shows that the Court below has not convicted and sentenced the appellant for the offence u/s 201 of the Indian Penal Code, only because inadvertently, no charge was framed for that offence. 14. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 17.06.2008 and Order of sentence dated 21.06.2008, passed by the learned Additional Sessions Judge, F.T.C. III, Hazaribagh, in S.T. No. 468 of 2004, convicting and sentencing the appellant Manesh Mahto for the offence u/s 302 of the Indian Penal Code, which we hereby, affirm. The accused appellant is already in custody undergoing the sentence. 15. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae Md. Zaid Ahmad, who has been appointed by this Court. The accused appellant is already in custody undergoing the sentence. 15. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae Md. Zaid Ahmad, who has been appointed by this Court. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae Md. Zaid Ahmad. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 16. There is no merit in this appeal and accordingly, this appeal is dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.