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2018 DIGILAW 124 (JHR)

Mihir Das v. State Of Jharkhand

2018-01-15

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. - Heard learned counsel for the appellant and learned Addl. P.P. for the State. 2. The appellant is aggrieved by Judgment of conviction dated 06.12.2005 and Order of sentence dated 07.12.2005, passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Bokaro, in S.T. No. 75 of 2004 whereby and where under the appellant has been held guilty for the offence punishable under section 304(B) of the Indian Penal Code. Upon hearing on the point of sentence, he has been sentenced to undergo R.I. for 07 (seven) years. 3. The case of the prosecution in brief as mentioned in the written report submitted by the informant -P.W. 5 - Sudhir Chandra Mochi is that the deceased Kamla Devi married the appellant on 12.03.1999 as per Hindu rites and customs. On the date of the marriage itself there was disturbance regarding demand of dowry but with the intervention of the villagers and well wishers after pacifying, the marriage was solemnized but the in-laws of the deceased used to create trouble in connection of demand of dowry. Some months before the before her death, the deceased was harassed in connection of demand of one Honda motorcycle and a gold chain. The deceased used to tell the same to her family members. On 01.08.2003 between 7:00 to 7:30 A.M. the informant was informed by the Nandosi (husband of sister of the appellant) that the deceased is serious and the said Nandosi told the informant to go to the matrimonial house of the deceased. P.W.5 accompanied by his wife, the P.W.4 and P.W.3 went to the matrimonial house of the deceased and found the charred dead body of the deceased in the verandah of her house. On the basis of the written report submitted by the informant, police registered Chas (M) P.S. Case No. 60/2003 and took up investigation of the case and after completion of the investigation police submitted final form under section 304 (B) of the Indian Penal Code. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused-appellant along with co-accused persons for the offence punishable under section 304(B)/34 of the Indian Penal Code, and upon the accused-appellant pleading not guilty to the charges and claiming to be tried, hewas put to trial. 5. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused-appellant along with co-accused persons for the offence punishable under section 304(B)/34 of the Indian Penal Code, and upon the accused-appellant pleading not guilty to the charges and claiming to be tried, hewas put to trial. 5. In support of its case, the prosecution has examined as altogether 08 (eight) witnesses in the case. However, no witness has been examined on behalf of defence. P.W.1 -Renu Bala Devi and P.W.2 -Tulsi Das Sharma, are hostile witnesses who have not supported the case of the prosecution. P.W.3 -Manoj Kumar Das is the brother of the deceased, P.W.4 -Wastu Devi is the mother of the deceased and P.W.5 -Sudhir Chandra Mochi is the father of the deceased. All these three witnesses have stated in their examination in chief about the marriage having taken place between the deceased and the appellant on 12.03.1999 and they have also stated about the dowry demand of one Hero-Honda motorcycle and a gold chain. They have further stated that the deceased was treated with cruelty and harassed by being assaulted in connection with the said demand of dowry, by the appellant being her husband. They have also stated that at the time of marriage of the deceased with the appellant, a L.M.L. Vespa scooter and a colour T.V. along with other articles such as almirah, sofa, bed etc. were also given. All the three witnesses on 01.8.2003 on being informed went to the matrimonial house of the deceased and saw the charred dead body of the deceased in her matrimonial house, in their cross-examination, they have stated that there was dispute in connection of demand of dowry at the time of marriage of the deceased with the appellant. In their cross-examination all the three have also stated about the Panchayati being convened to resolve the dispute and consequent upon the same the appellant took the deceased to his house. All the three witnesses in their cross-examination have denied the suggestion that the deceased was suffering from any depression. They have stated that the deceased used to tell about her being subjected to cruelty from time to time. 6. P.W.-6-Sahadeo Das is an independent witness and he has stated that he came to know that between 05:30 to 06:00 A.M on hearing noise, he reached the house of the appellant. They have stated that the deceased used to tell about her being subjected to cruelty from time to time. 6. P.W.-6-Sahadeo Das is an independent witness and he has stated that he came to know that between 05:30 to 06:00 A.M on hearing noise, he reached the house of the appellant. He came to know that the deceased immolated herself. On reaching the place of occurrence, he saw the charred dead body of the deceased which was lying on the floor. In his cross-examination the P.W.6 has stated that he has never seen the deceased being assaulted by anybody. The father of the appellant never subjected the deceased to cruelty. 7. P.W.7 - Dr. Balkeshwar Prasad conducted the autopsy of the dead body of the deceased. He has deposed that on 1.08.2003 at 2:00 P.M. he conducted the post-mortem on the dead body of the deceased Kamla Devi. On external examination he found the following:- (i) Rigor mortis was present in all four limbs, Pugulistic attitute present, smell of kerosene oil coming from scalp hair and body. No burnt cloth was brought, eye closed, congested pupil dilated, mouth open, tongue protruded. Bloody scionsfroth coming from both nostrils: (ii) Burn injury :- According to rule of "9" almost 100% of body surface area were affected by deep burn covered with exfoliated patches of skin, occasional blisters and blade sooty coloration of skin. (iii) On dissections :- Uterus was gravid containing 20 weeks size dead foetus. All visceras were congested, stomach containing digested liquid and gas. 8. P.W.7 - opined that the case was ante-mortem burn injuries caused by highly inflammable substance like kerosene oil causing extensive deep burn injuries. The cause of death was cardio-respiratory failure due to hypo volumic shock and extensive burn injuries. Time elapsed since death was within 12 hours. He also deposed that the postmortem report was in his pen and signature and on being proved by him the same was marked as Ext. 2. In his cross-examination he has stated that as the dead body was burnt 100% hence, no injury or violence could be found on the dead body. 9. P.W.8 - Manoj Kumar Singh is a formal witness. He is an advocate''s clerk. He has formally proved the inquest report and the carbon copy of the inquest report which was marked as Ext. 3. 10. 9. P.W.8 - Manoj Kumar Singh is a formal witness. He is an advocate''s clerk. He has formally proved the inquest report and the carbon copy of the inquest report which was marked as Ext. 3. 10. The statement of the appellant was recorded under Section 313 Cr.P.C., 1973 wherein, he denied the circumstances appearing in evidence against him. 11. After taking into consideration the evidence available on record, the learned trial court has convicted and sentenced the appellant as indicated above. 12. It was submitted by the learned counsel for the appellant that the defence has been prejudiced by the non-examination of the I.O. It was further submitted that there is no cogent evidence available on record regarding demand of dowry, immediately before the death of the deceased and only three family members of the deceased being the P.W.3-Manoj Kumar Das, P.W.4 - Wastu Devi and P.W.5 -Sudhir Chandra Mochi have supported the case of the prosecution and they being the family members of the deceased are interested witnesses and hence the learned court below ought not have convicted the appellant basing on their testimony. It was also submitted that there is no eye-witness to the occurrence. Hence, it is submitted that the conviction and sentence of the appellant be set aside by at least giving him the benefit of doubt. 13. The learned Addl. P.P. on the other hand defended the impugned Judgment of conviction and Order of sentence and submitted that the prosecution has succeeded in establishing all the ingredients possible for the offence punishable under section 304 B of the Indian Penal Code by giving cogent evidence. It was also submitted that the prosecution has proved that the death of the deceased has been caused within 7 years of her marriage otherwise than under normal circumstances as is evident from the testimony of the P.W.7 -Dr. Balkeshwar Prasad the doctor who conducted the autopsy on the dead body of the deceased. There is also cogent evidence put forth by the P.W.3 -Manoj Kumar Das, P.W.4 - Wastu Devi and P.W.5 -Sudhir Chandra Mochi about the deceased being subjected to cruelty and harassed by the appellant being her husband, soon before her death in connection of demand of dowry of a Hero-Honda motorcycle and a gold chain. There is also cogent evidence put forth by the P.W.3 -Manoj Kumar Das, P.W.4 - Wastu Devi and P.W.5 -Sudhir Chandra Mochi about the deceased being subjected to cruelty and harassed by the appellant being her husband, soon before her death in connection of demand of dowry of a Hero-Honda motorcycle and a gold chain. Hence this is a fit case where the all the ingredients of section 113(B) of the Indian Evidence Act is attracted. Hence, the learned trial court having rightly convicted and sentenced the appellant and the same does not warrant interference of this Court and hence the appeal being without any merit be dismissed. 14. So far as the contention of the appellant regarding non-examination of the I.O. is concerned, it is settled principle of law that the non-examination of the I.O per se is not fatal to the case of the prosecution. The Hon''ble Supreme Court of India in the case of Lahu Kamlakar Patil vs. State of Maharashtra, (2013) 6 SCC 417 , at para 18 held as under:- "18...........It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behan Prasad vs. State of Bihar (1996) 2 SCC 317 , this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik vs. State of Bihar (2000) 9 SCC 153 , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused...." 15. After careful perusal of the record I find that the attention of none of the prosecution witness was drawn in their respective cross examination in respect of any material deposed by them in their examination in chief. The place of occurrence has also been described in detail by the witnesses, being the matrimonial house of the deceased. So I have no hesitation in holding that this is not a case where any prejudice has been caused to the defence by non-examination of the I.O. Hence non-examination of the IO is not fatal in this case. 16. The place of occurrence has also been described in detail by the witnesses, being the matrimonial house of the deceased. So I have no hesitation in holding that this is not a case where any prejudice has been caused to the defence by non-examination of the I.O. Hence non-examination of the IO is not fatal in this case. 16. As already discussed above, the prosecution has succeeded in establishing all the ingredients of the offence punishable under section 304B of the Indian Penal Code. The evidence on the record establishes that the date of marriage of the deceased is 12.03.1999 and the date of her death was 01.08.2003.Thus it has been proved beyond reasonable doubt that the death of the deceased occurred within 7 years of her marriage. The evidence put forth by the P.W.3 to 7 establishes beyond reasonable doubt that the deceased died because of burn injuries meaning thereby that her death was otherwise than under normal circumstance and there is trustworthy evidence through the PW3, PW4 and PW5 that soon before her death, the deceased was subjected to cruelty and harassment by being assaulted by the appellant in connection with dowry demand of a Hero-Honda motorcycle and a gold chain. Nothing has been elicited in the cross examination of PW3, PW4 and PW5 to discredit their testimony. It is a settled principle of law that "Related'' is not equivalent to ''interested''. A witness may be called ''interested'' only when he or she derives some benefit from the result of litigation: in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ''interested''". (Vide 1981 AIR SC 1390). Hence certainly the testimony of PW3, PW4 and PW5 cannot be discarded on the ground of interestedness. 17. Hence the learned trial court has rightly convicted and sentenced the appellant for the offence punishable under section 304B of the Indian Penal Code and has sentenced him for the minimum punishment for the said offence of Rigorous Imprisonment of 7 years. Hence the impugned Judgment of conviction and Order of sentence is confirmed. The appellant is on bail. In view of the confirmation of his conviction, the bail of the appellant is cancelled. Hence the impugned Judgment of conviction and Order of sentence is confirmed. The appellant is on bail. In view of the confirmation of his conviction, the bail of the appellant is cancelled. The learned court below is directed to take all coercive steps for his apprehension for undergoing rest of the sentence. 18. Let the lower court record be sent back to the court below with a copy of the Judgment forthwith. 19. In the result, this appeal is dismissed.