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2018 DIGILAW 433 (JHR)

Gupta Kewat v. State of Jharkhand

2018-02-20

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction and Order of sentence dated 15.01.2008, passed by the learned 1st Additional Sessions Judge, Pakur, in S.C. No.11 of 2006, whereby, the appellant, who is the husband of the deceased, has been found guilty and convicted for the offences under Sections 498-A and 304-B of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo life imprisonment for the offence under Section 304-B of the Indian Penal Code and further sentenced to undergo R.I. for two years for the offence under Section 498-A of the Indian Penal Code. 3. The prosecution case was instituted on the basis of the fardbeyan of Kailash Kewat, the father of the deceased Pairiya Devi, recorded on 12.09.2005 at about 6:45 AM at the in-laws' place of the deceased. The informant has stated that the deceased was married to the accused Gupta Kewat about 5 to 6 years ago, and out of the wedlock, they had a daughter aged about 4½ years and a son aged about 2½ years. His daughter was kept properly by her husband for about one and half years and thereafter, the husband demanded Rs.8,000/- from the informant threatening that if the money was not given, his daughter would be killed. The informant replied that, being a poor person, he would not be able to give the money. On 11.09.2005, his son-in-law informed him on telephone that Pairiya Devi was having pain in stomach and she was taken to hospital and she was also brought back from the hospital, but she died in the house. Upon getting this information, the informant along with other persons went to the in-laws' place of his daughter, where he reached at about 9:00 PM, and he saw the dead body in the house, with some injuries on her head, little finger of her hand and in the finger of her leg. He also found froth coming out of the mouth and it also appeared that the neck (bone) was broken. Claiming that the deceased had been killed for the demand of dowry, the informant gave his fardbeyan, stating that she was killed by his son-in-law Gupta Kewat, his uncle and other family members by assaulting and poisoning her. He also found froth coming out of the mouth and it also appeared that the neck (bone) was broken. Claiming that the deceased had been killed for the demand of dowry, the informant gave his fardbeyan, stating that she was killed by his son-in-law Gupta Kewat, his uncle and other family members by assaulting and poisoning her. On the basis of the fardbeyan, Pakur (T) P.S. Case No.181 of 2005, corresponding to G.R. No. 452 of 2005, was instituted for the offence under Sections 304-B/34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the accused Gupta Kewat for the offences under Sections 304-B and 498-A of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, nine witnesses were examined by the prosecution, including the I.O. of the case. The Doctor conducting the post mortem examination, has not been examined in the case and accordingly, the post mortem report has been proved as Ext.-3, by a formal witness PW-9 Lalit Kumar Bhagat. Out of the material witnesses examined by the prosecution, PW-1 Champa Kewat and PW-2 Fulu Kewat have turned hostile and have not supported the prosecution case at all, whereas, PW-3 Man Bahal Kapari had only been tendered by the prosecution. 5. PW-6 Kailash Kewat is the informant and the father of the deceased. He has stated that his daughter Pairiya Devi was married to the accused Gupta Kewat about five to six years ago, and they had a son and a daughter out of the wedlock. For about one and half years, she was kept properly, but thereafter, she was being assaulted for the demand of money. This witness has stated that the accused was demanding Rs.8,000/- and he could not give the money. On 11.09.2005 at about 4:00 PM, he was in his house, when the accused informed him on phone that he had taken his wife to hospital and while returning back to the house, she died. At about 9:00 PM, the informant along with other persons reached the in-laws' place of the deceased and found the dead body of his daughter. On 11.09.2005 at about 4:00 PM, he was in his house, when the accused informed him on phone that he had taken his wife to hospital and while returning back to the house, she died. At about 9:00 PM, the informant along with other persons reached the in-laws' place of the deceased and found the dead body of his daughter. The accused persons were talking to cremate the dead body in the night itself, but he insisted for cremation in the morning. The police was informed, but the police did not come in the night, and at about 6:30 AM, police visited the place of occurrence and saw the dead body. He gave his fardbeyan to the police, upon which he had put his signature. He has identified his signature on the fardbeyan, which was marked Ext.-1/4. This witness was put to cross-examination, in which, he has stated that he had given the statement before the police that the accused used to assault his daughter for the demand of money and he had not given the statement before the police that the money was demanded only once. This witness has denied the suggestion to have given false evidence. 6. PW-4 Kameshwar Kewat is the uncle of the deceased and PW-5 Ramanand Kewat is a relative of PW-4 Kameshwar Kewat. Both these witnesses have also supported the prosecution case stating that they had gone to the place of occurrence along with the informant and had seen the dead body. PW-4 Kameshwar Kewat is also the witness to the fardbeyan and the inquest report of the dead body, and he has proved his signatures on both these documents, which were marked as Ext.-1 and Ext.-1/1. This witness has stated that after one and half years of the marriage, the accused had demanded money from Kailash, whereupon, Kailash had told him that being a poor person, he would not be able to give the money. Similarly, PW-5 Ramanand Kewat, is also the witness to the inquest report of the dead body and the fardbeyan, and has also proved his signatures on both these documents, which were marked as Exts.-1/2 and 1/3 respectively. This witness has stated nothing either about the demand of money, or about any cruelty or torture for the said demand. Similarly, PW-5 Ramanand Kewat, is also the witness to the inquest report of the dead body and the fardbeyan, and has also proved his signatures on both these documents, which were marked as Exts.-1/2 and 1/3 respectively. This witness has stated nothing either about the demand of money, or about any cruelty or torture for the said demand. Even in the evidence of PW-4 Kameshwar Kewat, there is nothing to show that the deceased was being subjected to cruelty and torture for any demand of dowry, as he has only stated about the demand of money from the father-in-law, but has stated nothing in his evidence about any cruelty or harassment to the deceased, for the said demand. 7. PW-8 Upendra Kr. Mandal is the main I.O. of the case. This witness has stated that on 12.9.2005, he was posted as S.I. in Pakur Town Police Station and on that day, he had visited the place of occurrence, and had recorded the fardbeyan of the informant Kailash Kewat, which he has proved and the same was marked Ext.-1/5. He has also proved the inquest report of the dead body of the deceased, which was marked Ext.-2. He has given the details of the place of occurrence, which is the house of the deceased, where he saw the dead body of the deceased. He had recorded the statements of the witnesses and thereafter, due to his deputation, he handed over the charge of investigation. In his cross-examination, the attention of this witness was drawn towards the statement of the informant made before him, whereupon, he has stated that the informant had not given the statement before him that the accused used to assault the deceased for nonpayment of the money. PW-7 Lxman Kr. Sinha is the Police Officer, who had only submitted the charge-sheet in the case. 8. As stated earlier, the Doctor conducting the post-mortem examination, has not been examined in the case, and accordingly, the post-mortem report has been proved by a formal witness PW-9 Lalit Kumar Bhagat. He has admitted in his cross-examination that he has no knowledge about the contents of the post-mortem report. Thus, the contents of the post-mortem report cannot be looked into, and at best, it can only be inferred that the deceased had died an unnatural death and her post-mortem was also conducted. 9. He has admitted in his cross-examination that he has no knowledge about the contents of the post-mortem report. Thus, the contents of the post-mortem report cannot be looked into, and at best, it can only be inferred that the deceased had died an unnatural death and her post-mortem was also conducted. 9. The statement of the accused was recorded under section 313 of the Cr.P.C., wherein he has denied the evidence against him. The defence has also examined three witnesses in the case, who have mainly came to depose that the deceased had died due to some illness. On the basis of the evidence on record, the sole accused has been found guilty, convicted and sentenced for the offences as aforesaid. 10. Learned counsel for the appellant has submitted that the impugned Judgment passed by the Trial Court below cannot be sustained in the eyes of law, as there is no evidence on record to show that the deceased was being subjected to cruelty and torture for demand of dowry. Learned counsel accordingly, submitted that in absence of such evidence, the conviction and sentence of the appellant cannot be sustained in the eyes of law. 11. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that PW-6 Kailash Kewat, who is the informant in the case, has clearly stated that the accused had committed the dowry death of his daughter, due to the fact that the demand of dowry could not be met by the informant, and this witness has also stated that she was being assaulted for the said demand. It is submitted that the deceased had died an unnatural death, and though there is only formal prove of the post-mortem report, but the inquest report of the dead body, which is proved by the I.O., clearly shows that there were ante-mortem injuries on the dead body. Learned counsel accordingly, submitted that on the basis of the evidence on record, the offences are clearly made out under Sections 304-B and 498-A of the Indian Penal Code. 12. Learned counsel accordingly, submitted that on the basis of the evidence on record, the offences are clearly made out under Sections 304-B and 498-A of the Indian Penal Code. 12. Having heard learned counsels for both the sides and upon going through the record, we find that though PW-6 Kailash Kewat, who is the informant of the case and the father of the deceased, has stated in his evidence that the deceased was being assaulted for the demand of money, and his attention was also drawn towards whether this statement was made before the police by him, wherein, he has reiterated to have given such statement before the police also. The evidence of PW-8 Upendra Kumar Mandal, who is the main I.O., clearly shows that such statement was not given by the informant before him. Thus, it is absolutely clear that the informant has deposed regarding the assault of his daughter for the nonpayment of money, for the first time before the Court. Even in the fardbeyan, there is no such allegation against the accused. The fardbeyan only states that the accused had demanded Rs.8,000/- from the informant, whereupon, the informant told him, that being a poor person, he would not be able to give the money. There is no allegation in the entire fardbeyan regarding any assault, or cruelty, or harassment to the deceased due to non-fulfillment of the said demand, which is a sine-qua-non for making out the offence under Section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code reads as follows:- “304-B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.” Similarly, Section 133-B of the Evidence Act reads as follows:- "113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." Thus, from the plain reading of both these provisions, it is apparent that for making out the offence under Section 304-B of the Indian Penal Code, and for attracting the deeming provision under that Section, and the presumption under Section 113-B of the Evidence Act, the following ingredients must be proved by the prosecution:- (a) The death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances, (b) such death had taken place within seven years of the marriage, (c) it should be proved that soon before her death, she was being subjected to cruelty and harassment by her husband, or any relative of her husband, and (d) such cruelty and harassment was for, or in connection with any demand of dowry. It is well settled principle of law that if any of these ingredients are not satisfied and not proved by the prosecution, no offence can be said to be made out under Section 304-B of the Indian Penal Code. [Authorities:- Biswajit Halder @ Babu Halder and Ors, Vs. State of W.B., reported in (2008) 1 SCC 202 and Sher Singh @ Pratapa Vs. State of Haryana, reported in (2015) 3 SCC 724 ] 13. In the present case, the ingredient, that the deceased was being subjected to cruelty and harassment for the demand of dowry, is absolutely absent and there is no legal evidence to that effect. The deposition of PW-6 Kailash Kewat, the informant of the case, that the deceased was being assaulted for the demand of dowry, was clearly made for the first time in the Court, and no such statement was there, either in his fardbeyan, or in his statement given before the police. The deposition of PW-6 Kailash Kewat, the informant of the case, that the deceased was being assaulted for the demand of dowry, was clearly made for the first time in the Court, and no such statement was there, either in his fardbeyan, or in his statement given before the police. This clearly shows that the informant had made improvements in his evidence in the Court, upon his statements either in the fardbeyan, or that given before the police, which is bound to be discarded. The evidences of other material witnesses, namely, PW-4 Kameshwar Kewat and PW-5 Ramanand Kewat, are absolutely silent on this issue. As such, we are of the considered view that in absence of any legal evidence to the effect that the deceased was being subjected to cruelty and harassment for the demand of dowry, the conviction and sentence of the appellant for the offences under Sections 304-B and 498-A of the Indian Penal Code cannot be sustained in the eyes of law. There was no charge against the appellant for the offence under Section 302 of the Indian Penal Code. 14. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 15.01.2008, passed by the learned 1st Additional Sessions Judge, Pakur, in S.C. No.11 of 2006, convicting and sentencing the appellant for the offences under Sections 304-B and 498-A of the Indian Penal Code, are hereby, set-aside. Consequently, the appellant Gupta Kewat is found not guilty, and he is acquitted of the charges. The appellant is in custody undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.