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2017 DIGILAW 869 (JHR)

Karman Mandal v. State of Bihar

2017-05-16

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : H.C. Mishra, J. 1. Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal has abated qua the co-appellants, Bajo Mandal and Bijo Devi, who are now dead, vide order dated 3.5.2017. 3. The surviving appellants Karman Mandal and Muso Mandal are aggrieved by the Judgment of conviction dated 9.9.1992 and Order of sentence dated 14.9.1992, passed by the learned 1st Additional Sessions Judge, Deoghar, in Sessions Case No.59 of 1991/3 of 1991, whereby the surviving appellants, have been found guilty and convicted for the offences under Sections 304-B and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants were sentenced to undergo imprisonment for life for the offence under Section 304B of the I.P.C., but no separate sentence was passed for the offence under Section 201 of the Indian Penal Code. 4. The appellant Karman Mandal is the husband of the deceased and appellant Muso Mandal is the brother-in-law of the deceased. The co-appellants, Bajo Mandal and Bijo Devi, who are now dead, were the parents-in-law of the deceased. According to the prosecution case, the deceased Sheela Devi, aged about 18 years, was married to the appellant karman Mandal in the year 1987. It is alleged in the FIR, lodged by the informant Tarni Mandal, the father of the deceased, that after her marriage, the accused Bajo Mandal (since dead) and Karman Mandal used to demand dowry and they also used to assault her for the same. About one year prior to the occurrence also, they had poisoned the deceased for killing her. On 25.11.1990, Sita Ram Mandal, who is brother-in-law of the informant Tarni Mandal, came to his house and informed that he had been informed by his son-in-law that the daughter of the informant had been killed at her in-laws' place and the dead body had been cremated. Upon getting the information, the informant along with his son Damodar Mandal, brother Dharnidhar Mandal and brother-in-law Sitaram Mandal went to the in-laws' place of his daughter, but did not find any one in the house, except the ladies, who also upon seeing them, fled away. The elder son of Bajo Mandal, namely, Daneshwar Mandal, who was living separately, when asked about the occurrence, also fled away. The elder son of Bajo Mandal, namely, Daneshwar Mandal, who was living separately, when asked about the occurrence, also fled away. Rajo Mandal, the elder brother of Bajo Mandal, however, informed that in the previous night, there was some altercation in the house and the deceased died by burning and her dead body had been cremated. Alleging that the dowry death of the deceased was committed by the accused Bajo Mandal, Bijo Devi, who were the parents-in-law (now dead), Karman Mandal, the husband and Muso Mandal, the brother-in-law of the deceased, and the dead body was cremated for destroying the evidence, fardbeyan was given by the informant Tarni Mandal, on the basis of which, Sarath P.S. Case No.152 of 1990 was instituted for the offences under Sections 304-B, 201/34 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. Upon commitment of the case to the Court of Session, the charge was framed against the accused persons for the offences under Sections 304B and 201 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, ten witnesses were examined on behalf of the prosecution, out of whom PW-6 Rinku Devi was only tendered by the prosecution. 7. PW-8 Tarni Mandal is the informant in the case and he has supported the prosecution case. He has stated that his daughter Sheela was married to Karman Mandal in the year 1987 and she was being subjected to cruelty and torture by her in-laws for demand of wrist watch and Silver Ornaments in dowry. He has also stated that one year prior to the occurrence, the accused persons had poisoned her. On 25.11.1990, Sita Ram Mandal came and informed him about the death of his daughter, whereupon, he along with his son Damodar Mandal, and Sitaram Mandal went to her in-laws' place, where they reached on the next day at about 9:00 AM. No male member was present in the house and ladies also fled away. When they asked Dhaneshwar Mandal, s/o Bajo Mandal, about the occurrence, he also fled away. Rajo Mandal, brother of Bajo Mandal, informed that in the night, there was some quarrel between the husband and wife and thereafter, she was burnt. No male member was present in the house and ladies also fled away. When they asked Dhaneshwar Mandal, s/o Bajo Mandal, about the occurrence, he also fled away. Rajo Mandal, brother of Bajo Mandal, informed that in the night, there was some quarrel between the husband and wife and thereafter, she was burnt. After sometime, the police arrived at the place of occurrence, where his fardbeyan was recorded, upon which, he put his signature, which was marked as Exhibit-1/1. The police also recovered some burnt articles from the house. He has identified the accused persons in the Court. In his cross-examination, he has stated that his daughter had given birth to a son also, who had died earlier. He has also stated in his cross-examination that the deceased was being subjected to cruelty and torture for demand of dowry and she was also assaulted by her husband in the presence of this witness. He has denied the suggestion to have given the false evidence. 8. PW-5 is the Parwati Devi, the mother of the deceased. She has also stated that her daughter was married to Karman Mandal at the age of about 15-16 years and she was killed by the accused persons. Upon getting the information through Sita Ram Mandal, her husband, son and other persons went to her in-laws' place, where she had died. She also stated that whenever the deceased used to come to the parents' place, she used to complain that she was being subjected to cruelty and torture for demand of dowry. Prior to the occurrence, when this witness had gone to Basukinath, she had met the wife of Aklu Mandal of the same village, who had asked her to get her daughter back from her in-laws' place, otherwise the accused persons would kill her. She has also identified the accused persons in the Court. In her cross-examination, she has stated that after the marriage, a son was born to her daughter. She has also stated that whenever she used to come to her house, she used to complain that the accused persons used to subject her to cruelty and torture for demand of dowry and even about one year prior to the occurrence, she was poisoned by the accused persons, when she was brought to her parents' house. The accused persons took her back to her matrimonial home after giving a panchnama in writing. The accused persons took her back to her matrimonial home after giving a panchnama in writing. She has also denied suggestion to have given false evidence. 9. PW-1 Damodar Mandal is the brother of the deceased and he has also supported the prosecution case stating that his sister was married to Karman Mandal and whenever she used to come to her parents' place, she used to complain that her in-laws were subjecting her to cruelty and torture for demand of wrist watch and ornaments. On 25.11.1990, Sita Ram Mandal had informed them about the occurrence, whereupon, they went to the in-laws' place of his sister, where they were informed that in the previous night, there was some altercation and his sister was burnt to death. He has stated that the statement of his father was recorded in his presence, which was read over to him, whereupon his father and this witness had put their signatures, which he identified and they were marked as Exhibit-1 series. There is nothing of much importance in his cross-examination. 10. PW-3 Sita Ram Mandal is the brother-in-law of the informant, who had informed the informant about the occurrence, which fact, he has supported in his evidence. He had also accompanied the informant to the in-laws' place of the deceased and he identified the signatures on the fardbeyan of the informant, including his signature also, which were also marked exhibits. In his cross-examination, this witness has stated that the in-laws' place of the deceased is at a distance of four to five miles from his house and after the marriage, he had visited the in-laws' place of the deceased several times and there used to be quarrel at her in-laws' place due to demand of dowry. 11. PW-2 Tirveni Mandal is the maternal uncle and PW-4 Dharnidhar Mandal, is the uncle of the deceased, who have also supported the prosecution case stating that upon getting the information about the occurrence, they had also gone to the in-laws' place of the deceased. They have stated that the deceased was killed at her in-laws' place. They have also stated that the deceased was being subjected to cruelty and torture for demand of dowry by the accused persons. They have stated that the deceased was killed at her in-laws' place. They have also stated that the deceased was being subjected to cruelty and torture for demand of dowry by the accused persons. PW-7 Mahadev Mandal has stated that he had sent Sita Ram Mandal to inform the informant about the occurrence and he has also stated that the deceased had died at her in-laws' place. 12. PW-9 Ashok Kr. Dalmia is the I.O. of the case. He has stated that he had recorded the fardbeyan of the informant at the place of occurrence and he also made investigation at the place of occurrence. He found burn marks on the walls of the room and some articles of the room were also burnt. He also found the burnt portion of a cot and half burn cot, which he had seized and had prepared seizure list in presence of the witnesses. He has proved the seizure list, which was marked as Exhibit-2. He also visited the second place of occurrence, which was the side of a rivulet, where he found some burnt straws and half burnt bamboo, which were tried to be covered by sand. Upon removing the sand, he also found some bones and that place was still hot. He seized them, preparing seizure list, which he proved and the same was marked as Exhibit-2/1. He has sent the seized bone for forensic examination, but the report was not received by him. This witness has stated about the investigations made by him. In his cross-examination, this witness has stated that he had also found some illicit liquor in the house. 13. PW-10 is Govind Jee Singh, who is another police officer, who had only submitted the charge-sheet in the case. 14. Learned counsel for the appellants has submitted that the appellants have been falsely implicated in the case and the impugned Judgment of conviction and Order of sentence are absolutely illegal and are fit to be set aside. It is submitted by learned counsel that against the appellant Muso Mandal, who is brother-in-law of the deceased, there is no specific allegation, either in the FIR or in the evidence of any witness. It is submitted by learned counsel that against the appellant Muso Mandal, who is brother-in-law of the deceased, there is no specific allegation, either in the FIR or in the evidence of any witness. It is submitted that in the FIR, there is allegation of demand of dowry and subjecting the deceased to cruelty for that, is only against Bajo Mandal (since dead), who was the father-in-law and Karman Mandal, the husband of the deceased. Learned counsel submitted that in the evidence also there is only general allegation against all the accused, and there is nothing specific against the appellant Muso Mandal, and accordingly, the conviction and sentence of the appellant Muso Mandal cannot be sustained in the eyes of law, only on the basis of the general allegations in the evidence of the witnesses. 15. Learned counsel for the appellants further submitted that conviction and sentence of the appellant Karman Mandal, who is the husband of the deceased, also cannot be sustained in the eyes of law, in as much as, there is nothing in the record to suggest that soon before her death, the deceased was being subjected to cruelty and torture for the demand of dowry. In support of his contention, learned counsel placed reliance upon a decision of the Supreme Court of India in Maya Devi and Anr. v. State of Haryana, in Criminal Appeal No.1263 of 2011, decided on 7.12.2015. Learned counsel accordingly, submitted that it is a fit case in which both the appellants be given at least to the benefits of doubt and be acquitted. 16. Learned counsel for the State on the other hand has opposed the prayer and has submitted that the witness have fully supported the fact that soon after the marriage, the deceased was being subjected to cruelty and torture for demand of dowry till her death by burning, and whenever, she used to come to her parents' place, she used to complain against the accused persons that she was being subjected to cruelty and torture for demand of dowry by her husband and in-laws. PW-5 Parwati Devi, who is mother of the deceased, has also stated that few days prior to the occurrence, she had gone to Basukinath, where she had met wife of Akalu Mandal of the same village, who also asked her to bring her daughter back, otherwise she would be killed by her in-laws. PW-5 Parwati Devi, who is mother of the deceased, has also stated that few days prior to the occurrence, she had gone to Basukinath, where she had met wife of Akalu Mandal of the same village, who also asked her to bring her daughter back, otherwise she would be killed by her in-laws. The father of the deceased, PW-8 Tarni Mandal has also stated that even in his presence the deceased was assaulted by her husband and she was also being subjected to cruelty and torture for demand of dowry. These witnesses have also stated that even about one year prior to the occurrence, she was also poisoned for the said demand. Learned counsel has further submitted that the deceased was burnt in her in-laws' house and her dead body was also cremated by accused persons, without informing her parents, which fact is fully supported by the witnesses. PW-9 Ashok Kumar Dalmia, who is the I.O. of the case had also found burn marks in the house and had recovered the half burnt cot, as also the burnt bones from the side of rivulet. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the accused persons beyond all reasonable doubts. 17. Having heard learned counsels for both the sides and upon going through the record, we find force in the submission of the learned counsel for the appellant that there is only general allegation against the appellant Muso Mandal, who is brother-in-law of the deceased. In the FIR, there is allegation against the father-in-law and husband to have demanded the dowry and to have subjected the deceased to cruelty and torture for the same. In the evidence of all the witnesses, there is only general allegation that the in-laws used to subject her to cruelty and torture for demand of dowry and there is nothing specific against the appellant Muso Mandal. In our considered view, there being no specific allegation and evidence against the appellant Muso Mandal, this appellant is entitled to the benefits of doubt, and his conviction and sentence could not be secured only on the basis of the general allegations against the in-laws. 18. In our considered view, there being no specific allegation and evidence against the appellant Muso Mandal, this appellant is entitled to the benefits of doubt, and his conviction and sentence could not be secured only on the basis of the general allegations against the in-laws. 18. As regards the appellant Karman Mandal, who is the husband of the deceased, we find that there is specific allegation against him to have demanded the dowry and also to have subjected his wife to cruelty and torture for demand of dowry. PW-8 Tarni Mandal, who was the informant of the case, has stated that he had seen him assaulting his daughter. The other witnesses have also supported the fact that soon after her marriage, the deceased was always being subjecting to cruelty and torture for demand of dowry, until her death by burning. It has come in evidence that even one year prior to the occurrence, the deceased was poisoned at her in-laws' place. PW-5 Parwati Devi, who is mother of the deceased, has also stated that prior to the occurrence, at Basukinath, she was advised by a lady of the same village, to bring her daughter back, otherwise she would be killed by her in-laws. The I.O. of the case has proved the fact that he found positive evidence, in form of the burnt cot and other burnt materials, including bones, clearly suggesting that the deceased was done to death by burning, and her dead body was clandestinely disposed of with the intention to cause the evidence to disappear in order to screen the offenders from legal punishment. In view of the evidence on record, we are of the considered view that the prosecution has been able to prove the charges against the appellant Karman Mandal beyond all reasonable doubts, and there is no illegality in his conviction and sentence passed by the Court below. 19. For the foregoing reasons, the impugned Judgment of conviction dated 9.9.1992 and Order of sentence dated 14.9.1992 passed by the learned 1st Additional Sessions Judge, Deoghar, in Sessions Case No. 59 of 1991/3 of 1991, so far as they relate the appellant Muso Mandal, are hereby, set-aside. The appellant Muso Mandal is given the benefits of doubt and he his acquitted of the charges. This appellant is on bail and he is discharged from the liabilities of his bail bond. 20. The appellant Muso Mandal is given the benefits of doubt and he his acquitted of the charges. This appellant is on bail and he is discharged from the liabilities of his bail bond. 20. For the reasons discussed above, the conviction and sentence of the appellant Karman Mandal for the offences under Sections 304B and 201 of the Indian Penal Code, passed by the Trial Court below, are hereby, affirmed. The bail bond of the appellant Karman Mandal, 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 Karman Mandal for serving out the sentence. 21. This appeal is accordingly allowed in part. Let the Lower Court Record be sent back forthwith along with the copy of the Judgment.