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2018 DIGILAW 1681 (JHR)

Girendra Kumar Singh v. State Of Jharkhand

2018-08-01

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard, Mr. Anurag Kasyap, assisted by Ms. Srishti Paul, learned counsel appearing for the appellant and Mrs. Lily Sahay, learned Addl. Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction dated 18.07.2003 and order of sentence dated 21.07.2003, passed in S.T. No.36 of 2002 by the learned Addl. Sessions Judge, Fast Track CourtIV, Palamau at Daltonganj, whereby the sole appellant, Girendra Kumar Singh has been convicted for the offence committed and punishable under Sections 304B, 498A and 201 I.P.C. and under Section 3/ 4 of the D. P. Act. The learned trial court has awarded rigorous imprisonment for seven years for the offence committed and punishable under Section 304B I.P.C., rigorous imprisonment for two years for the offence committed and punishable under Section 498A I.P.C., rigorous imprisonment for 2 years for the offence committed and punishable under Section 201 I.P.C. and rigorous imprisonment for one year for the offence committed and punishable under Section 4 of the Dowry Prohibition Act. All the sentences are directed to run concurrently and the period already undergone during the trial, shall be set off under Section 428 Cr. P.C. 3. The prosecution case is based upon written report submitted by the informant- Govind Singh before the Officer-in-charge, Panki Police Station on 20.05.2001, stating therein that he has solemnized the marriage of his daughter in the year 1999 with the appellant, Girendra Kumar Singh. After four months of the marriage, father-in-law and son-in-law demanded one Scooter and Rupees Forty Thousand in cash, and under compulsion, the informant paid Rs. 20,000/- cash and utensils worth Rs. 6,000/-. Thereafter his daughter while living in ''sasural'' started imparting education under ''A.I.D. scheme'' where she used to teach three hours per day and on 26th day every month, she used to come to Panki to receive salary. It is alleged that when she went to receive remuneration at Panki, she used to cry and disclose that the accused persons are torturing her for demand of dowry and scooter. She has alleged that her husband- Girendra Kumar Singh and father-in-law used to give threatening with dire consequences. Under such compulsion, the informant paid Rs. 10,000/- cash to his son-in-law (Girendra Kumar Singh). The informant has further stated that from the said amount of Rs. She has alleged that her husband- Girendra Kumar Singh and father-in-law used to give threatening with dire consequences. Under such compulsion, the informant paid Rs. 10,000/- cash to his son-in-law (Girendra Kumar Singh). The informant has further stated that from the said amount of Rs. 10,000/-, Girendra Kumar Singh has constructed his house and for the rest of the amount and the scooter, the informant has given assurance that after selling his land, he will pay the amount. It is alleged that on 02.05.2001, he got an information of sudden death of his daughter. He went to see the dead-body at Village- Chandwara and got information that the accused persons have concealed and disposed of, the dead-body secretly. When the informant reached the house of Pyari Singh, he was given threatening with dire consequences, and when Girendra Babu chased the informant for assault, the informant somehow saved his life and fled-away. The informant has claimed that his daughter has been killed by the husband and the other relatives of the husband in a conspiracy and has prayed for taking legal action against them. On the basis of the aforesaid ''fardbeyan'' of the informant, the Police instituted First Information Report bearing Panki P.S. Case No. 28 of 2001 (dated 20.05.2001) under Section 304B of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet bearing No.38 of 2001 dated 30.06.2001 under Sections 498(A) / 304 (B) /201 I.P.C. and 3 /4 of the Dowry Prohibition Act. The cognizance of the offence has been taken vide order dated 16.07.2001 and the case has been committed to the Court of Sessions vide order dated 18.02.2002. 5. The charge has been framed against the accused/ appellant on 13.03.2002 under Sections 498A, 304B, 201 I.P.C. and 3 /4 of the D.P. Act, to which the appellant has pleaded innocence and thus, he was put under trial. 6. The prosecution has examined altogether four witnesses to prove its case and also exhibited the First Information Report signed by the informant as Exhibit-1. Suman Devi, mother of the deceased has been examined as P.W.1, Prabha Devi (sister-in-law of the deceased) has been examined as P.W.2, Narendra Kumar Singh (brother of the deceased) has been examined as P.W.3 and Govind Singh (informant and father of the deceased) has been examined as P.W.4. Suman Devi, mother of the deceased has been examined as P.W.1, Prabha Devi (sister-in-law of the deceased) has been examined as P.W.2, Narendra Kumar Singh (brother of the deceased) has been examined as P.W.3 and Govind Singh (informant and father of the deceased) has been examined as P.W.4. After closure of the prosecution evidence, the appellant''s statement was recorded under Section 313 Cr.P.C. on 09.10.2002, to which the appellant has stated that the evidence brought against him is not correct and he is innocent as his wife died under natural circumstances. The defence has also examined two witnesses namely, Sudeshwar Singh as D.W.1 and Kameshwar Singh as D.W.2. After hearing the learned counsel for the parties and on perusal of the records, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present Criminal Appeal before this Hon''ble Court assailing the impugned judgment of conviction and order of sentence. 7. Heard, Mr. Anurag Kashyap assisted by Ms. Srishti Paul, learned counsel for the Appellant. Mr. Anurag Kashyap, learned counsel appearing for the appellant has submitted that there is inordinate delay in lodging the First Information Report. As per the case of the prosecution, death of the victim took place on 02.05.2001 and on the same day, the informant reached the sasural of her daughter where as per allegation he was chased by the appellant, but he has not lodged any report to the Police rather the First Information Report was lodged after a delay of 18 days i.e. on 20th May, 2001 after funeral and shradh was finished. Learned counsel for the appellant has further submitted that all the witness are related witnesses and even the evidence of the informant who has been examined as P.W.4 is not reliable as he has stated that he has informed the Police and after 5 days, the Police came and recorded his statement. He has further submitted that he has given a written report to the Police. He has further submitted that he has given a written report to the Police. Learned counsel for the appellant has further submitted that the First Information Report is a report which discloses about commission of a cognizable offence and as per the evidence of P.W.4 (informant -Govind Singh), the Police was informed and a written report was also given, meaning thereby, present First Information Report which has been marked as Exhibit-1 is subsequent information, as such, hit under Section 162 Cr. P.C. Learned counsel for the appellant has further submitted that unless and until the prosecution establish, the case within the ambit of Section 304B I.P.C., no presumption under Section 113B of the Indian Evidence Act can be drawn against the appellant. 8. Learned counsel appearing for the appellant has drawn attention of this Court towards the provisions of Section 2 of the Dowry Prohibition Act, 1961. "Section 2 of the Dowry Prohibition Act, 1961 defines "dowry" means any property or valuable security given or agreed to be given either directly or indirectly (a)by one party to a marriage to the other party to the marriage; or (b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal Law(Shariat) applies." 9. Learned counsel appearing for the appellant has submitted that from perusal of Section 2 of the D.P. Act, the demand is not related with the marriage, as such, cannot be said to be dowry under the Dowry Prohibition Act, 1961. 10. Learned counsel appearing for the appellant has submitted that in absence of any demand of dowry, the conviction of the appellant under Section 304B I.P.C. cannot be sustained in the eyes of law as per allegation subsequent demand of scooter and Rs. 40,000/- in cash, out of which Rs. 20,000/- has been paid are not related to marriage may be a financial help by relative. 11. Learned counsel appearing for the appellant has also put reliance in the case of APPASAHEB AND ANOTHER VS. 40,000/- in cash, out of which Rs. 20,000/- has been paid are not related to marriage may be a financial help by relative. 11. Learned counsel appearing for the appellant has also put reliance in the case of APPASAHEB AND ANOTHER VS. STATE OF MAHARASHTRA , (2007) 9 SCC 721 , wherein it has been held that "correlation between the giving or taking of property or valuable security with the marriage of the parties is essential On facts held, demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry Hence, no demand for dowry could be said to be made by accused appellants." 12. Learned counsel for the appellant while drawing attention of this Court with respect to the evidence adduced by P.W.4 (Govind Singh) has submitted that in Para9, P.W.4 has stated that after two years of marriage, he has paid Rs. 10,000/- in the 4th Month of the year, 2001. Learned counsel for the appellant has further submitted that as per the prosecution case, the informant got knowledge about the murder of his daughter from one Suresh, but said Suresh has not been examined in this case. He has further submitted that soon before the death, there is no evidence of any torture, as contemplated under Section 304B I.P.C. Learned counsel for the appellant has further submitted that the basic ingredients of demand of dowry, as contemplated under Section 2 of the D.P. Act, is lacking in the present case. 13. Learned counsel appearing for the appellant in support of his submission has also put reliance in the case of Satvir Singh and Ors. Vs. State of Punjab and Anr. , (2001) 8 SCC 633 , wherein the Hon''ble Supreme Court has held that any property or valuable security given or agreed to be given in connection with marriage Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of "dowry" - Dowry Prohibition Act, 1961 under Section 2 of the D. P. Act. 14. 14. Learned counsel for the appellant has further submitted that under such circumstances, conviction of the appellant under Section 304 B I.P.C. cannot sustain in the eyes of law, as there is no evidence that the lady was tortured even the informant who has been examined as P.W.4 has stated in his cross-examination that he has not found any mark of injury on the person of his daughter, as stated in Para-10 and Para12 of his evidence. Learned counsel for the appellant has further submitted that P.W.4 in his evidence has stated that distance of the sasural and maike of the deceased is 8 miles and he got information about the death of his daughter at 9.00 a.m. in the morning and thereafter he went to the sasural and thereafter he came to the house. After five days, he has filed an application before the Officer-inCharge, as stated in Para-16 of his cross-examination and after 18-20 days of the occurrence, his son went to the Superintendent of Police and gave a written report and on the basis of that, the present case has been instituted. This witness in Para-17 of his cross-examination, has stated that after 5-6 days of death of the daughter, the Police enquired from him. Mr. Anurag Kashyap, learned counsel for the appellant has submitted that if these things are disclosed to the Police officer regarding commission of a cognizable offence, then law is put in motion, but in the present case, the case has been instituted after 17/18 days of cremation. The informant has no reason for causing delay in lodging the First Information Report. Had he been suspicious about death of his daughter, he could have informed to the Police on the same day of death of daughter i.e. on 2nd May, 2001. Learned counsel for the appellant has further submitted that in absence of any material ingredient constituting of an offence under Section 498A I.P.C., the conviction of the appellant under Section 498A I.P.C. is also not sustainable in the eyes of law. Learned counsel has further submitted that since the entire family of the informant was having knowledge about the death of victim (Neelam) which was natural, as such, funeral was performed. Learned counsel has further submitted that since the entire family of the informant was having knowledge about the death of victim (Neelam) which was natural, as such, funeral was performed. Had there been any suspicion to the informant, he could have informed the Police on the same day, but the same has not been done by the informant and after 18 days of the occurrence, the First Information Report has been lodged, as such, conviction of the appellant under Section 201 I.P.C. is also not sustainable in the eyes of law. Considering the provisions as made in Section 2 of the Dowry Provision Act, the conviction of the appellant under Section 4 of the Dowry Provision Act cannot sustain in the eyes of law. Learned counsel for the appellant has submitted that all the witnesses are related witnesses. Neither Investigating officer nor any independent witness has been examined in this case. Learned counsel for the appellant, relying on the aforesaid submissions and in view of the facts and circumstances of the case, has prayed that the appellant be acquitted of charge by giving benefit of doubt as the prosecution has failed to bring the case under the presumption under Section 113B of the Indian Evidence Act, as such, the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Mrs. Lily Sahay, learned Addl. Public Prosecutor appearing for the State while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed upon the material available on record, as such, has rightly convicted the appellant, as the deceased died within seven years of marriage and without informing the father of the victim, dead-body has been disposed of. Learned counsel for the State has further submitted that the father of the deceased who has paid money on the demand of Scooter and Rs. 40,000/- just after four months after marriage, is dowry, as such, conviction of the appellant under Sections 304B, 498A, 201 I.P.C. and 4 of the D.P. Act is not sustainable in the eyes of law. 15. Heard, Mr. Anurag Kashyap, assisted by Ms. Srishti Paul, learned counsel appearing for the appellant and Mrs. Lily Sahay, learned Addl. Public Prosecutor appearing for the Sate. 15. Heard, Mr. Anurag Kashyap, assisted by Ms. Srishti Paul, learned counsel appearing for the appellant and Mrs. Lily Sahay, learned Addl. Public Prosecutor appearing for the Sate. Perused the record including the First Information Report which was addressed to the Officer-in-charge on 20th May, 2001, the charge framed against the appellant and the evidence of all the four witnesses and statement of accused under Section 313 Cr.P.C. P.W.1 (Suman Devi), who is mother of the deceased, has disclosed that Suresh has informed about the murder of her daughter, but said Suresh has not been examined in this case. P.W.2 (Prabha Devi), sister-in-law of the deceased, who has stated that she has not seen the occurrence. This witness (P.W.2) has further stated that in presence of father-in-law and mother-in-law, demand of dowry was made, but no such statement was made by P.W.1 (Suman Devi) who is mother-in-law of this witness and mother of the victim. The fatal blow comes to the prosecution case, when this witness stated in Para-6 of cross-examination to the effect that after marriage, as the said demand of dowry was not related to marriage, as contemplated under Section 2 of the D.P. Act. Any demand made after the marriage which has no connection with the marriage, cannot be termed to be dowry under the Dowry Prohibition Act. This witness has also stated that the victim (Neelam) was never assaulted in her presence. She has further stated that victim (Neelam) used to come along with her husband with all happiness. Narendra Kumar Singh, brother of the victim has been examined as P.W.3. This witness has stated that after marriage when his sister came to his house, she disclosed that husband and father-in-law used to demand Rs. 40,000/- and a Scooter. This witness has further stated in Para s 6 and 7 of his cross-examination that after 2-3 days of the death of the deceased, the Police has recorded his statement. This witness has further stated that he has not seen any person killing victim (Neelam) rather somebody has disclosed him about the murder of Neelam. This witness has further stated in Para-20 of his cross-examination, that in the Village, he met four persons, but he could not disclosed their names nor they have disclosed anything about the occurrence. Govind Singh, father of the victim and informant of the case has been examined as P.W.4. This witness has further stated in Para-20 of his cross-examination, that in the Village, he met four persons, but he could not disclosed their names nor they have disclosed anything about the occurrence. Govind Singh, father of the victim and informant of the case has been examined as P.W.4. This witness has stated that he got information that his daughter has been killed by the accused persons. Thereafter he went to the village where his son-in-law said that since you have not brought amount, your daughter has been killed, but no action was taken immediately nor First Information Report was lodged. This speaks in volume, as even though the appellant has said this word, as alleged by the informant, but informant did not lodge First Information Report immediately and after 18 days, First Information Report was lodged. This witness has proved signature on the ''fardbeyan'' which has been marked as Exhibit-1. This witness has further stated that demand was made after two years of marriage in the 4th month of the year 2001. From the evidence of P.W.4 (Govind Singh), it appears that such demand cannot be construed to be dowry under Section 2 of the D. P. Act, 1961 and in view of the judgments reported in (2009) 9 SCC 721 and (2001) 8 SCC 633 . This witness (P.W.4) has categorically stated in Para-12 of crossexamination that he did not found any mark of injury on the person of his daughter. This witness in Para-16 of his cross-examination, has stated that after few days of the occurrence, he gave written report to the Police officer. Learned counsel for the appellant has rightly submitted before this Court that if the information was given to the Police and his statement was recorded after 5 days of the occurrence, the law is put in motion. The present First Information Report is nothing, but a concocted version of actual incidence which has been filed with some ulterior motive and original First Information Report has not been brought on record, as such, the appellant cannot be convicted under Sections 304B, 498A, 201 I.P.C. and 4 of the D.P. Act. The present First Information Report is nothing, but a concocted version of actual incidence which has been filed with some ulterior motive and original First Information Report has not been brought on record, as such, the appellant cannot be convicted under Sections 304B, 498A, 201 I.P.C. and 4 of the D.P. Act. From the discussion made herein-above and relying on the judgment referred by the learned counsel for the appellant, this Court is of the opinion that basic ingredient for constituting offence of dowry under Section 2 of the D. P. Act is lacking and since basic ingredient is missing, no case under Section 304B I.P.C. is made out, as the prosecution has to establish firstly case under Section 304B I.P.C. then presumption under Section 113B of the Indian Evidence Act will come into play. When no presumption under Section 113B of the Indian Evidence Act is there against the appellant, this appellant is acquitted of the charge and conviction under Section 304B I.P.C. Since there is no material of torture as the witnesses examined in this case have submitted that they did not found any mark of injury nor they have informed the Police rather the victim used to come along with her husband happily and as such, in absence of any material, conviction of the appellant under Section 498A I.P.C. is also not sustainable in the eyes of law. After receiving information of death, as stated by the prosecution witnesses, about the occurrence on 02.05.2001, no information was given to the Police and only after 18 days, when cremation and ''shradh'' has also finished, First Information Report was lodged, as such, no offence under Section 201 I.P.C. is made out. Since basic ingredient of dowry, as contemplated under Section 2 of the Dowry Prohibition Act, 1961 is missing and lacking in the present case, conviction of the appellant under Section 4 D. P. Act is also not sustainable in the eyes of law. 16. Accordingly, the the Judgment of conviction dated 18.07.2003 and order of sentence dated 21.07.2003, passed in S.T. No.36 of 2002 by the learned Addl. Sessions Judge, Fast Track Court-IV, Palamau at Daltonganj, is hereby set aside. 17. The appellant, who is on bail, is discharged from the liability of his bail bonds. 18. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.