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2018 DIGILAW 1619 (JHR)

Bablu Mallik v. State Of Jharkhand

2018-07-24

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. This appeal has been preferred against the Judgment of conviction dated 24.04.2018 and Order of Sentence dated 25.04.2018 passed by learned Additional Sessions Judge, 15t Jamtara in Sessions Trial No.66 of 2016 arising out of Nala RS. Case No.13 of 2016 corresponding to GR. No.79 of 2016 whereby and where under the learned court below held the appellants guilty of having committed offence under Section 304B/34 of the Indian Penal Code and sentenced the appellant-accused No.1- Bablu Mallik to undergo rigorous imprisonment for 8 years and the appellant-accused No.2-Kali Mallik to undergo rigorous imprisonment for 7 years. 3. The case of the prosecution as unfolded in the Fardbeyan of the informant-deceased-Lakhi Mallik is that she was married to appellant-accused No.1- Bablu Mallik five years prior to the occurrence according to Hindu rites and customs. Since after her marriage, her husband namely Bablu Mallik being the accused-appellant No.1 and her mother-inlaw being the accused-appellant No.2- Kali Mallik used to continuously abuse, assault and torture her. On 23.01.2016, her husband being the appellant-accused No.1 abused her and assaulted her. For that reason at about 4:30 p.m., the deceased-Lakhi Mallik poured kerosene oil over herself and set herself on fire. After catching of fire she raised alarm but none of her family members came to her rescue. The neighbours assembled and extinguished the fire by pouring water over her body and immediately she was taken to Community Health Centre, Nala and from there, for better treatment, she was referred to Asansol. During the course of her treatment at Sub Divisional Hospital, Asansol her Pardbeyan was recorded by police in which she stated that both the appellants were continuously demanding a motorcycle and ear-ring and for that reason both the appellant-accused persons used to abuse, assault and torture her and for that reason she set herself on fire. On the basis of the Fardbeyan of the informant, Police registered Nala PS. Case No.13 of 2016 and took up the investigation of the case and submitted Final form against the appellant-accused persons. 4. Upon commitment of the case to the court of session charges for the offence punishable under Section 304B/34 of the Indian Penal Code was framed against the appellant-accused persons and upon the accused persons pleading not guilty to the charge and claiming to be tried, they were put to trial. 4. Upon commitment of the case to the court of session charges for the offence punishable under Section 304B/34 of the Indian Penal Code was framed against the appellant-accused persons and upon the accused persons pleading not guilty to the charge and claiming to be tried, they were put to trial. In support of its case, the prosecution altogether examined fifteen witnesses and also proved the documents which have been marked Ext.1 to 6. No oral evidence was adduced on behalf of the defence. 5. Out of the witnesses examined by the prosecution, P.W.1- Kashi Nath Mandal has stated that on hearing the noise that fire has caught, he reached the place of occurrence and by that time the fire was extinguished. He saw that the wife of appellant-accused No.1 was lying there and on being asked she told that she caught fire while cooking. Though he was cross-examined by the prosecution as hostile but still he did not support the case of the prosecution. 6. P.W.2-Sarama Mandal has stated that five years prior to the occurrence, the deceased-Lakhi married appellant-accused No.1- Bablu Mallik. She has further stated that Lakhi died because of burning. After the fire was extinguished, P.W.2 went to see Lakhi. In her cross-examination, she has stated that when she reached the place of occurrence, Lakhi told her that while cooking her sari caught fire and she sustained burn injuries. The appellant Nos.1 and 2 took Lakhi to the doctor and for better treatment she was referred to Asansol. Lakhi was treated at Asansol for two months and thereafter she died. The appellants bore all the expenses of the treatment of the deceased. 7. P.W.3-Sahdeo Mandal has stated that the occurrence took place at about 4:00 pm. He was in his house and on hearing the noise of Lakhi Mallik he went there and extinguished the fire. After that the Villagers came and Lakhi was taken to Asansol for treatment. Lakhi was treated there for two months and thereafter she died. He has further stated that Lakhi was married with appellant No.1- Bablu Mallik about five years ago and she was blessed with a daughter out of the wedlock. P.W.3 identified the appellant-accused persons who were present in the court. Lakhi was treated there for two months and thereafter she died. He has further stated that Lakhi was married with appellant No.1- Bablu Mallik about five years ago and she was blessed with a daughter out of the wedlock. P.W.3 identified the appellant-accused persons who were present in the court. In his cross-examination, he has stated that on reaching the place of occurrence after hearing the noise of Lakhi when he asked Lakhi how she caught fire then Lakhi told him that she caught fire while she was cooking food. He further stated that the appellant No.1 was not present in the house at that time. First of all the appellant-accused Nos.1 and 2 along with the help of Villagers took Lakhi for treatment to Nala Hospital and after treatment there, the doctor referred her to Asansol Hospital for better treatment and there she was treated and thereafter she died after two months during course of her treatment. The appellant-accused No.1 bore all the expenses of her treatment. 8. P.W.4- Bhirn Mallik has stated that on hearing the noise he reached the house of appellant No.1- Bablu Mallik and saw that Lakhi Mallik and other ladies were extinguishing the fire. On being asked Lakhi disclosed that she caught fire while cooking food. Lakhi married appellant-accused No.1- Bablu Mallik five years ago. Lakhi was brought to Nala Hospital for treatment. P.W.4- Bhirn Mallik identified the appellant Nos.1 and 2 namely Bablu Mallik and Kali Mallik respectively who were present in the court. In his cross-examination he stated that after Lakhi was burnt she was taken by the appellant Nos.1 and 2 to Nala Hospital and when the doctor told them to take Lakhi to Asansol both the appellants took Lakhi to Asansol and she was treated in Asansol for three months and during the course of her treatment Lakhi died. All the expenses of treatment of Lakhi were borne by the appellant-accused No.1-Bablu Mallik. 9. P.W.5- Pradeep Malik is the brother of the deceased. All the expenses of treatment of Lakhi were borne by the appellant-accused No.1-Bablu Mallik. 9. P.W.5- Pradeep Malik is the brother of the deceased. He has stated about the marriage of Lakhi Mallik with the appellant No.1- Bablu Mallik as per Hindu rites and customs six years before his deposing in the court and after her marriage the appellant-accused and their family members namely Kali Mallik, Dashrath Mallik, Arun Mallik, Charan Mallik, Sarnu Mallik used to treat the deceased with cruelty in connection with demand of one motorcycle and ear-ring and used to abuse and assault her. On 22.01.2016, the appellant-accused assaulted Lakhi with crowbar and axe in connection with demand of motorcycle and ear-ring and on 23.01.2016, the appellant-accused persons set the deceased on fire after pouring kerosene oil over her with an intention to murder her. The villagers disclosed him about the incident. He saw the deceased Lakhi at Sub Divisional Hospital at Asansol and she was completely burnt. He talked to Lakhi and Lakhi disclosed him about the occurrence. The deceased Lakhi died on 18.03.2016 at Sub Divisional Hospital, Asansol. P.W.5 identified the appellant-accused persons present in the court. In his cross-examination he has stated that he has not seen the occurrence. He cannot say the name of the Villagers who told him about the occurrence. In para- 12 he has stated that he met the deceased on 24.01.2016 and this case was instituted on the basis of the statement of his sister. His sister has read up to Class-3/4. His mother was staying with his sister in the hospital. He identified his signature on the Fardbeyan which was marked Ext. A and the signature of his father on the Fardbeyan on being identified by P.W.5 was marked Ext. A/1. He cannot say whether the signature of his sister appears on the Fardbeyan as the same was not taken in his presence. In para-14 he stated that the Fardbeyan of Lakhi Mallik was not recorded in his presence. The appellant Nos.1 and 2 took Lakhi to hospital and both of them bore the expenses of the treatment of Lakhi. Both of them were staying in the hospital and the appellant No.2 is looking after the daughter of the deceased Lakhi Mallik. 10. P.W.6- Asha Malik is the mother of the deceased. She has stated that Lakhi was married with appellant No.1- Bablu Mallik six years ago. Both of them were staying in the hospital and the appellant No.2 is looking after the daughter of the deceased Lakhi Mallik. 10. P.W.6- Asha Malik is the mother of the deceased. She has stated that Lakhi was married with appellant No.1- Bablu Mallik six years ago. After marriage the appellant-accused persons along with Bablu Mallik, Charan Mallik, Sharnu Mallik, Dashrath Mallik and Kali Mallik used to torture her daughter in connection with demand of a motorcycle and ear-ring. On 22.01.2016, the appellant-accused persons along with Bablu Mallik, Charan Mallik, Sharnu Mallik, Dashrath Mallik and Kali Mallik assaulted her daughter Lakhi Mallik with a crowbar. In para-3 she has stated that on 23.01.2016, with an intention to murder her daughter, the appellant-accused persons poured kerosene oil over the body of her daughter and set her on fire. When P.W.6- Asha Malik went to the Sub Divisional Hospital of Asansol at that time her daughter told her that the accused persons poured kerosene over her body and set her on fire. The deceased was talking slowly in injured condition. In para-5 she has stated that her daughter told her that on 22.01.2016 she was assaulted and on 23.01.2016 she was set on fire after pouring kerosene oil. Lakhi died on 18.03.2016 during course of her treatment. She identified the accused persons who were present in the court. In her cross-examination, P.W.6 has stated that she was not examined by the police and she was deposing for the first time in the court about the occurrence. The case was instituted on the statement of her daughter Lakhi. The statement of Lakhi Mallik was recorded in her presence. In para-10 this witness has stated that she does not know whether Lakhi has signed on her deposition and whether in her statement the deceased disclosed that the appellant-accused persons demanded the motorcycle or ear-ring or not. The appellant-accused Nos.1 and 2 took Lakhi for treatment to the hospital and they bore the expenses of her treatment. During the course of treatment of Lakhi, P.W.6 and the appellant-accused No.2 were staying in the hospital. The appellant-accused No.2 is now looking after the daughter of Lakhi. 11. P.W.7- Nitish Kumar has stated that he is the part investigating officer of the case and he has seen the investigation done by earlier investigating officer. During the course of treatment of Lakhi, P.W.6 and the appellant-accused No.2 were staying in the hospital. The appellant-accused No.2 is now looking after the daughter of Lakhi. 11. P.W.7- Nitish Kumar has stated that he is the part investigating officer of the case and he has seen the investigation done by earlier investigating officer. He recorded the statement of the witnesses and after investigation while continuing the investigation against the accused persons who were not named in the FIR, against whom he did not find any convincing evidence, submitted the final form against the appellant-accused persons. 12. P.W.8- Dr. Satinath Banerjee stated that on police requisition dated 18.03.2016 he performed the postmortem examination on the dead body of Lakhi Mallik and found old and infected burn injury, partially healed over lower face neck. Patchy involvement of both upper limb, trunk and back up to umbilicus and both thighs. In his opinion, the death was due to burn injuries and septicemia which was ante-mortern in nature. On being proved by him, the postmortem report, which was under his signature and seal was marked Ext. 1. In his cross-examination he has stated that on 23.01.2016 the deceased-Lakhi Mallik was admitted to District Hospital, Asansol and remained admitted there till her death on 18.03.2016. 13. P.W.9- Tapan Mallik is the father of the deceased-Lakhi Mallik. He has stated that Lakhi Mallik was married with appellant No.1- Bablu Mallik 4-5 years ago. Lakhi died because of burning while she was cooking food in her matrimonial house. Lakhi was taken for treatment by appellant Nos.1 and 2 to Asansol. In his cross-examination he has stated that the in-laws of Lakhi bore the expenses of treatment of Lakhi and the daughter of the deceased is being looked after by the appellant No.2. In para-6 he has stated that he is the father of the deceased. 14. P.W.10- Shambhunath Dwiwedi is the investigating officer of this case. He has stated that he recorded the Fardbeyan of the deceased-Lakhi Mallik and the deceased signed on the same and on being proved by him, the Fardbeyan of the deceased has been marked as Ext.2/1. On the Fardbeyan, the father and brother of the deceased being the P.W.9 and P.W.5 signed as the witnesses and their signatures were earlier marked as Ext.A/1 and A respectively. The endorsement on the Fardbeyan, on being proved by P.W.10 was marked as Ext. On the Fardbeyan, the father and brother of the deceased being the P.W.9 and P.W.5 signed as the witnesses and their signatures were earlier marked as Ext.A/1 and A respectively. The endorsement on the Fardbeyan, on being proved by P.W.10 was marked as Ext. 2 and the formal FIR. on being proved by him was marked as Ext. 3. He recorded the re-statement of the Victim and inspected the place of occurrence. He described the place of occurrence with its boundaries. He recorded the statement of the witnesses. The requisition for the injury report, on being proved by him, has been marked Ext. 4 and the injury report on being proved by him was marked as Ext.5. During the course of his investigation he came to know that the deceased died at District Hospital, Asansol during the course of her treatment and the certificate issued by the District Hospital, Asansol on being proved by him was marked Ext.6. In his crossexamination he stated that the daughter of the deceased was looked after by the appellant-accused persons. He did not record the statement of the appellant-accused persons. 15. P.W.11- Dr. Nadia Nand Mandal has stated that on 23.01.2016 he was posted as medical officer at C.H.C. Nala and on police requisition he examined Lakhi Mallik and found about 80% burn injury on her body. Age of injury was within six hours. Patient was referred to Sadar Hospital, Asansol for better treatment. He reserved his opinion. He identified the injury report which was earlier marked Ext. 5. 16. P.W.12- Chanchala Mandal and P.W.13- Kali Mallik @ Kalyani Mallik both have stated that on hearing noise they went to the house of appellant-accused No.1. The cloth of wife of appellant-accused No.1- Bablu Mallik caught fire while she was cooking. P.W.12, P.W.-13 and others extinguished the fire and after that she was taken to Nala Hospital and from there she was taken to Asansol. During the course of her treatment after two months, the wife of appellant-accused No.1 died. In their cross-examination both the P.W.12 and P.W.13 have stated that the appellant-accused persons took Lakhi to Nala Hospital for treatment and they bore the expenses also. Appellant-accused No.2 is looking after the only daughter of Lakhi Mallik. 17. During the course of her treatment after two months, the wife of appellant-accused No.1 died. In their cross-examination both the P.W.12 and P.W.13 have stated that the appellant-accused persons took Lakhi to Nala Hospital for treatment and they bore the expenses also. Appellant-accused No.2 is looking after the only daughter of Lakhi Mallik. 17. P.W.14- Kamalkant Mandal has stated that Lakhi married appellant-accused No.1-Bablu Mallik about 2-3 years ago and they were blessed with a baby who is being looked after by the appellant accused No.2. He has further stated that on hearing the noise he reached the house of Lakhi Mallik and found fire. The Villagers extinguished the fire. On the date of occurrence there was no quarrel between the deceased and the appellant-accused persons. The deceased was alone in the house when the occurrence took place. He denied stating before the police that the appellant-accused persons used to assault the deceased and set her on fire. At this stage, P.W.14- Kamalkant Mandal was declared hostile. Though he was cross-examined by the prosecution but he did not support the case of the prosecution. In his cross-examination he has also stated that the appellant-accused persons bore the expenses of treatment of Lakhi and got her treated in the hospital and they are looking after the daughter of Lakhi. 18. P.W.15- Budhan Mandal has stated that on hearing the noise he went to the place of occurrence and saw that the oven was burning and the wife of appellant-accused No.1 was in burnt condition. The villagers were extinguishing the fire. By the time P.W.15-Budhan Mandal reached there, fire was extinguished by the Villagers. The deceased was having good relationship with her in-laws. P.W.15- Budhan Mandal was also declared hostile and though he was cross-examined by the prosecution as hostile but he did not support the case of the prosecution. In his cross-examination he stated that the expenses of treatment of Lakhi was borne by the appellant-accused persons and they got her treated and they are also looking after the daughter of Lakhi. 19. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C., 1973 of the appellant-accused persons were recorded regarding the circumstances appearing in evidence against them and the appellant-accused persons denied the allegations and pleaded innocence. 20. 19. After closure of the evidence of the prosecution, statement under Section 313 Cr.P.C., 1973 of the appellant-accused persons were recorded regarding the circumstances appearing in evidence against them and the appellant-accused persons denied the allegations and pleaded innocence. 20. The learned court below after taking into consideration the evidence in the record and basing upon the evidence of P.W.5- Pradeep Malik and P.W.6- Asha Malik as well as the Fardbeyan of the informant convicted and sentenced the appellant-accused persons as already indicated above. 21. Mr. Mahesh Tewari, learned counsel for the appellants submitted that in view of the overwhelming evidence in the record coming from the prosecution witnesses themselves including the father of the deceased who has been examined as P.W.9 and P.W.2-Sararna Mandal, P.W.3- Sahdeo Mandal, P.W.4- Bhirn Malik, P.W.12- Chanchala Mandal and P.W.13- Kali Mallik @ Kalyani Mallik who have not even been cross-examined by the prosecution as hostile witnesses and who have categorically stated that the deceased died when her clothes caught fire while she was cooking and they have categorically stated about the same being her cause of death and there is nothing in the record to disbelieve their testimonies, the learned court below certainly erred by convicting the appellant-accused persons for the offence punishable under Section 304B/34 of the Indian Penal Code. It is further submitted by the learned counsel for the appellants that the Fardbeyan of the deceased which has been marked Ext.2/1 is shrouded with suspicion as though the P.W.10 being the investigating officer and scribe of the Fardbeyan has stated that P.W.5 and P.W.9 were the witnesses to the Fardbeyan and they have put their signatures over the same as witnesses to the Fardbeyan but the P.W.5- Pradeep Malik has categorically stated about the Fardbeyan was not recorded in his presence and the P.W.9- Tapan Malik has not supported the contents of the Ext.2/1 and has categorically stated that the death of the deceased occurred because she caught fire while cooking in her inlaws house. It is further submitted by the learned counsel for the appellants that though the P.W.6- Asha Malik claims that in her presence the Fardbeyan was recorded but the P.W.10- Shambhunath Dwiwedi has not stated that the Fardbeyan was recorded in presence of P.W.6 coupled with the fact that P.W.6- Asha Malik has stated that she cannot say whether the deceased Lakhi put her signature over the Fardbeyan or not, goes to show that the Fardbeyan is a fabricated one. It is then submitted that the P.W.5- Pradeep Malik even did not identify the signature of the deceased over the Fardbeyan though he unhesitatingly identified the signature of his father-P.W.9-Tapan Mallik over the same Fardbeyan which was marked Ext A/1. So, it is submitted that this raises a serious doubt about the genuineness of the signature of the deceased-Lakhi Mallik over the Fardbeyan and though the prosecution chose to mark the signature of P.W.9- Tapan Mallik and P.W.5- Pradeep Malik over the Fardbeyan separately but the prosecution did not venture to get the alleged signature of the deceased over the Fardbeyan marked an exhibit separately, shows that the signature of Lakhi on the Fardbeyan is not genuine. It is further submitted that the learned court below having not rightly appreciated the evidence in the record, this is a fit case where the appellant-accused persons be acquitted of the charge at least by giving them the benefit of doubt. Hence, it is submitted that the impugned judgment of conviction and order of sentence be set aside and the appellants be acquitted of the charges. 22. Mr. Tapas Roy, the learned Addl. RP. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that P.W.5- Pradeep Malik and P.W.6- Asha Malik have categorically stated about the demand of dowry and the torture meted out to the deceased continuously in connection with demand of a motorcycle and ear-ring and the Fardbeyan which can be treated as dying declaration of the deceased is sufficient to establish the case of the prosecution beyond reasonable doubt. It is further submitted by the learned Addl. RP. that the death of the deceased has occurred within seven years of her marriage and otherwise than the natural circumstances. It is further submitted by the learned Addl. RP. that the death of the deceased has occurred within seven years of her marriage and otherwise than the natural circumstances. This along with the testimony of P.W.5- Pradeep Malik and P.W.6- Asha Malik that there was demand of dowry is sufficient to prove the ingredients of Section 304 B of the Indian Penal Code. Hence, it is submitted that the learned court below having rightly convicted and sentenced the appellants, this appeal being without any merit be dismissed. 23. Having heard the rival submissions made at the bar and perusal of the record I find that the prosecution witnesses including the father of the deceased being the P.W.9-Tapan Mallik, P.W.2-Sararna Mandal, P.W.3-Sahdeo Mandal, P.W.4- Bhirn Mallik, P.W.12-Chanchala Mandal and P.W.13-Kali Mallik @ Kalyani Mallik have categorically stated that the deceased died by catching fire while she was cooking. The prosecution even did not choose to cross-examine them by getting them declared hostile, shows that they have not departed from their statement made before the police during investigation. There is evidence in the record through the P.W.14, as already indicated above that the deceased was alone in the house when the occurrence took place. Similarly the P.W.3 stated that the appellant no. 1 was not present in the house at the time of the occurrence and there is nothing in the record to disbelieve this portion of the testimony of the P.W. 14, in absence of any challenge to this part of the testimony of the witness. Similarly the P.W.3 stated that the appellant no. 1 was not present in the house at the time of the occurrence and there is nothing in the record to disbelieve this portion of the testimony of the P.W. 14, in absence of any challenge to this part of the testimony of the witness. The fact that the P.W.5- Pradeep Malik could not identify the alleged signature of the deceased on the Fardbeyan though he readily identified the signature of his father being the P.W.9- Tapan Mallik in the same Fardbeyan raises a serious doubt as to whether the signature appearing on the Fardbeyan was in fact of the deceased or not and consequently whether the said Fardbeyan is given by the deceased or not, more so because P.W.5- Pradeep Malik whose signature appears on the Fardbeyan and whom the P.W.10- Shambhunath Dwiwedi claimed to be a witness to the Fardbeyan has himself stated that the Fardbeyan was not recorded in his presence and the other witness to the Fardbeyan being the P.W.9 has given a clean chit to the appellant-accused persons by even not whispering about the demand of dowry or any cruelty meted out by the appellant-accused persons to the deceased. The father of the deceased (P.W.9) was neither declared hostile nor there is any reason to disbelieve his testimony. The testimony of P.W.5- Pradeep Malik and P.W.6- Asha Malik that the deceased was assaulted on 22.01.2016 by axe and crowbar as deposed by P.W.5- Pradeep Malik and the deceased was assaulted on 22.01.2016 by crowbar as deposed by P.W.6- Asha Malik is not corroborated by injury report marked Ext. 5, because the P.W.11- Dr. Nadia Nand Mandal has not found any injury other than burn injury of 80% on her body and certainly had there been any injury inflicted by a crowbar and axe it is unlikely to be healed up within a day. The Fardbeyan is also silent about assault by crowbar or axe. These two witnesses have also implicated the other family members which is not the case of the prosecution as per Fardbeyan. These two witnesses have also deposed about an assault on the deceased by all the family members which is also not the case of prosecution. The Fardbeyan is also silent about assault by crowbar or axe. These two witnesses have also implicated the other family members which is not the case of the prosecution as per Fardbeyan. These two witnesses have also deposed about an assault on the deceased by all the family members which is also not the case of prosecution. Similarly the P.W.6 departing from the case of the prosecution has deposed about a new case altogether by stating that all the members of the family with an intention to murder the deceased poured Kerosene oil over her and set her on fire. 80, these factors indicate that the P.W.5 and P.W.6 are not truthful witnesses. 24. Considering the aforesaid facts of the case, this Court is of the considered View that this is a fit case where the appellant-accused persons be acquitted of the charge punishable under Section 304B/34 of the Indian Penal Code by giving them the benefit of doubt. Accordingly, the appellant-accused No.1-Bablu Mallik and the appellant-accused No.2- Kali Mallik are acquitted of the charge for the offence punishable under Section 304B/34 of the Indian Penal Code by giving them the benefit of doubt and the impugned Judgment of conviction dated 24.04.2018 and Order of sentence dated 25.04.2018 passed by learned Additional Sessions Judge, 1st, Jarntara in Sessions Trial No.66 of 2016 being not sustainable in law, is set aside. The appellant-accused persons are in custody. In View of their acquittal, the appellant-accused persons are directed to be released from custody forthwith unless their detention is required in any other case. 25. In the result this appeal is allowed. 26. In View of the disposal of this appeal, the pending interlocutory application for bail stands disposed of as infructuous. Let a copy of the judgment be sent to the court below forthwith.