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2017 DIGILAW 789 (JHR)

Mulia Devi @ Munia Devi v. State of Jharkhand

2017-05-03

ANANT BIJAY SINGH

body2017
JUDGMENT : Anant Bijay Singh, J. Both the appellants have preferred the instant appeal being aggrieved by the judgment of conviction dated 18.01.2003 and order of sentence dated 21.01.2003 passed by 8th Additional Judge, Hazaribagh in Sessions Trial No.112 of 2002, whereby and where under he held the appellants guilty under sections 498-A/201 and 304-B of the Indian Penal Code and sentenced them to undergo R.I. for Seven Years under section 304-B of the Indian Penal Code and R.I. for Two Years under section 498-A/201 of the Indian Penal Code and also passed the order that both the sentences will run concurrently. 2. It appears that the instant appeal was filed on 03.03.2013 and by order dated 11.03.2003, it was admitted to hearing and further by order dated 10.04.2003 and both the appellants were directed to be released on bail during pendency of this appeal. 3. The prosecution case, in short, is that the informant-Bhikhan Pandit (P.W.3) had filed a written report addressed to the Officer-in-Incharge, Chouparan P.S.-Hazaribagh on 29.05.2001 alleging that his daughter-Fulia Devi was married with Vijay Pandit, S/o Mahru Pandit (appellant no.2) according to Hindu Rites on 18.04.2000. In the said marriage, he gave Rs. 25,000/-, one cycle and silver ornaments to Vijay Pandit (son-in-law) as dowry and, thereafter, his daughter went to her Sasural, but in the Sasural Fulia Devi was subjected to torture and harassment by her in-laws. A panchayat was also organized and his daughter disclosed that his father-in-law and mother-in-law put pressure for demand a TV. It is alleged that on 15.05.2000 when his son, Naraian Pandit (P.W.2) went to the sasural of his sister, she disclosed about the aforesaid fact. It is alleged that on 29.05.2001, he went to the sasural of his daughter alongwith TV to satisfy the demand of in-laws of her daughter, but he could not find his daughter there. On enquiry made from Mahru Pandit, appellant no.2 and others, he came to know that his daughter died and they have just arrived after performing her cremation. It is alleged that his daughter was murdered by her in-laws for not satisfying their demand. 4. On enquiry made from Mahru Pandit, appellant no.2 and others, he came to know that his daughter died and they have just arrived after performing her cremation. It is alleged that his daughter was murdered by her in-laws for not satisfying their demand. 4. On the basis of these allegations, Chouparan P.S. Case No. 89 of 2001 dated 29.05.2001 was instituted under sections 498-A, 304-B, 201/34 of the I.P.C. and section 3/4 of the Dowry Prohibition Act and the police after investigation submitted charge-sheet on 10.01.2002 against Vijay Pandit, Tribhuwan Pandit, Mahru Pandit and his wife Mulia Devi. Further charges were framed against these two appellants under sections 304-B/34, 498-A and 201 of the I.P.C. on 08.07.2002. Thereafter, trial was commenced and during course of trial altogether 10 witnesses were examined by the prosecution. 5. Now the moot question is that as to whether the prosecution, on the basis of materials, both oral and documentary, available on record has been able to prove the guilt against the appellants beyond all reasonable doubt? 6. From perusal of the impugned judgment, it appears that out of 10 witnesses, P.Ws.6, 7 and 8 are independent witnesses and they have been declared hostile. P.Ws.5 and 9 have not supported the prosecution case, P.W.4 is police personnel and he had simply submitted charge-sheet against the accused persons, therefore his evidence is of no consequence. Thus, the main witnesses of this case are P.Ws. 1, 2 and 3 and also P.W.10, the I.O. of this case. 7. P.W.1, namely, Jaiprakash Pandit, is the nephew of the Informant-P.W.3. He had stated that deceased Fulia Devi was married with Vijay Pandit on 18.04.2000 and dowry was given to the Vijay Pandit. He had further stated, he learnt from his Uncle-P.W.3 that after marriage, both the appellants were demanding T.V. and on 29.05.2001, when P.W.3 went to the sasural of his daughter, he found that his daughter died and her dead-body was also disposed of. During cross-examination at para 5, he has stated that when her sister returned from her sasural after one month of her marriage, she had disclosed about the demand of T.V. by her in-laws. Hence, this witness appears to be hearsay witness. 8. P.W.2, namely, Narain Pandit is the brother of the deceased Fulia Devi. During cross-examination at para 5, he has stated that when her sister returned from her sasural after one month of her marriage, she had disclosed about the demand of T.V. by her in-laws. Hence, this witness appears to be hearsay witness. 8. P.W.2, namely, Narain Pandit is the brother of the deceased Fulia Devi. He had stated on the same line but categorically stated that on 15.05.2000, when he went to the sasural of her sister, she (deceased) had disclosed that the appellants (in-laws) are demanding T.V. In para 6 of his cross-examination, he had stated that he has not made any complaint about the demand of dowry or torture by the in-laws of her sister in the police station or anywhere. In para 11 of his cross-examination, he has stated that a Panchayati was organized in the village in this regard. In para 13 of his cross-examination, he has stated that police has recorded his statement. He has further stated that he is not the eye witness of murder of her sister. Hence, this witness is also a hearsay witness. 9. P.W.3, namely, Bhikhan Pandit is the informant of this case and also father of the deceased-Fulvia Devi. He had stated that marriage of his daughter Fulia Devi was solemnized with Vijay Pandit, son of the appellants and in the marriage he had given Rs. 25,000/- in cash, one cycle, one watch and 25 Bhar silver ornaments and after one month of marriage of her daughter, Fulia Devi, she disclosed that these appellants were demanding for T.V. and when on 29.05.2002 he alongwith Jivlal Pandit, Prakash Pandit and Narain Pandit went to the sasural of her daughter, he learnt that his daughter Fulia Devi died and, thereafter, he lodged an F.I.R. written by Munshi Pandit and both of them put their signatures on it, which is marked as Ext.1. In para 6 of his cross-examination, he has stated that after three moths of the marriage, the appellants were started demanding T.V. from his daughter. In para 8 of his cross-examination, he has categorically stated that he has not lodged any case regarding demand of T.V. by these appellants, either in the police station or before the Mukhiya of the village and only for the first time, the instant case has been instituted. In para 8 of his cross-examination, he has categorically stated that he has not lodged any case regarding demand of T.V. by these appellants, either in the police station or before the Mukhiya of the village and only for the first time, the instant case has been instituted. He denied the suggestion that his daughter died due to illness and she was treated in Hazaribagh and the cremation of his daughter took place in his presence. 10. P.W.10, namely, Rajwali Sharma is the I.O. of this case. He has stated that on 29.05.2001 he was posted at Chouparan Police Station as Officer-in-Charge and on the basis of written report given by Bhikhan Pandit, P.W.3, he had drawn a formal F.I.R. being Chouparan P.S. Case No. 89 of 2001 and, thereafter, recorded the statement of Bhikhan Pandit, Narain Pandit, Jivlal Pandit and Jaiprakash Pandit and also inspected the place of occurrence, which is the house of accused-appellants. In para-3, he has stated that he had recorded the statement of Ramanand Dangi, who has stated that the cremation of deceased-Fulia Devi was performed without giving information to anyone, not even the family members of her Naihar. In para 6 of his cross-examination, he has stated that he has not investigated about the demand of T.V. by the appellants. In para 7 of his cross-examination he has disclosed that the villagers namely, Ramanand, Dilip Pandey and Laxman Pandit informed that deceased Fulia Devi was ill since before and she was being treated by Dr. Jayotsna Gupta and Dr. Kaushik Roy at Hazaribagh and Dr. Roy had also advised to take her to Ranchi for further treatment. In para-8 of his cross-examination he has stated that he has not investigated about the treatment of deceased Fulia Devi at Hazaribagh and Ranchi. 11. Learned counsel for the appellants has submitted that earlier no case was lodged against the appellants for demand of dowry but at a belated stage i.e. after death of the deceased, a case regarding torture for demand of dowry was lodged also for attracting section 304-B of I.P.C. 12. 11. Learned counsel for the appellants has submitted that earlier no case was lodged against the appellants for demand of dowry but at a belated stage i.e. after death of the deceased, a case regarding torture for demand of dowry was lodged also for attracting section 304-B of I.P.C. 12. It is clear that for bringing the case within the ambit of Section 304-B of the I.P.C., the prosecution has to bring the evidences on the record on the following points, which are as follows : (i) The death of a woman must be caused by any burns or bodily injury or occurs otherwise than normal circumstances. (ii) Such death must occur within seven years of her marriage. (iii) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband. (iv) Such cruelty or harassment was for or in connection with demand of dowry. (v) Such cruelty or harassment, deceased was subjected to soon before her death. 13. Admittedly, in this case, all the independent witnesses have stated in their evidence that deceased-Fulia Devi was ill from before and she was being treated at Hazaribagh. Thereby they have not supported the prosecution case and, hence, declared hostile. P.W.9 who is brother of Vijay Pandit and Dewar of deceased-Fulia Devi had categorically stated that deceased-Fulia Devi was his Bhabhi (elder brother’s wife) and she was ill from before and was being treated by Dr. Kaushik Roy at Hazaribagh and Dr. Roy had advised her for further treatment at Ranchi. He had also stated that at the time of death of her Bhabhi, his brother Vijay Pandit (husband of deceased) was at Udaipur (Rajasthan). He had clearly stated that he had properly informed about the death of Fulia Devi to his father Bhikhan Pandit and said Bhikhan Pandit accompanied with him had come to the place of occurrence and also participated in the cremation of his daughter-Fulia Devi. P.W.10, who is I.O. of this case has also stated that although he had registered the case and inspected the place of occurrence and recorded the statements of the witnesses, but he has not stated anything about the demand of dowry by the appellants from the deceased- Fulia Devi. 14. P.W.10, who is I.O. of this case has also stated that although he had registered the case and inspected the place of occurrence and recorded the statements of the witnesses, but he has not stated anything about the demand of dowry by the appellants from the deceased- Fulia Devi. 14. It is also an admitted fact that the prosecution has failed to established a case determining the five points, as stated above, such as first point, i.e. factum of death has not been proved by the prosecution. So far second point is concerned, although the death of deceased was occurred within seven years of her marriage, but no witnesses have stated that the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband, as her husband Vijay Pandit was at Udaipur (Rajasthan) at the time of occurrence. The witnesses have also stated that deceased was ill from before and during treatment she died and no one has stated about any burnt or bodily injury of the deceased. So far demand of dowry in the shape of T.V. is concerned, not a single witnesses have disclosed about the same. Only the informant-Bhikhan Pandit, himself has narrated about the demand of T.V. by these two appellants, but on query neither he produced any receipt/bill of the T.V., which he had purchased to give it to his daughter at her sasural nor he had disclosed the name of the shop from where the alleged T.V. was purchased. Even he had not disclosed the company name/make of the T.V. 15. Further, in my opinion the prosecution has failed to attract sections 304-B/34, 498-A and 201 of the I.P.C. while establishing the case against both the appellants. Hence, the impugned judgment can not be sustained in the eye of law. 16. In the result, this appeal is allowed and the impugned judgment is set aside. Since, both the appellants are on bail, they are discharged from the liabilities of their bail bonds. 17. It appears that I.A. No. 5911 of 2016 has been filed u/s 391 of Cr.P.C. to laid additional evidence. 18. Since, the instant appeal has been allowed, no separate order is required to be passed in the aforesaid application. Accordingly I.A. No. 5911 of 2016 is dismissed as infructuous.