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2018 DIGILAW 580 (JHR)

Shashi Munda v. State of Jharkhand

2018-03-13

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned amicus curiae appointed by this Court for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 25th February, 2008 and Order of sentence dated 27th February, 2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in S.T. No. 371 of 2007, whereby, the sole accused, who is the husband of the deceased lady, has been found guilty and convicted for the offence under Section 304-B of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo life imprisonment and fine of Rs.5,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the deceased Raj Kumari Devi herself, while she was alive and was undergoing treatment at RIMS, Ranchi, recorded on 21.02.2007, wherein she has stated that she married the accused Shashi Munda about four years ago and after the marriage, she was being subjected to cruelty and torture for demand of dowry of Rs.20,000/-, which she had informed to her parents. Her parents were not in a position to make the payment, and for that reason, on 15.01.2007, her husband poured kerosene oil on her and put her to fire. When she raised the alarm, her father-in-law and other persons put off the fire by covering her by blanket and she was brought to RIMS for her treatment. Her body below her waist and chest were burnt. She was threatened by her husband, for giving any information about the occurrence. On the basis of the fardbeyan of the victim lady, Bariatu P.S. Case No. W 26 of 2007, corresponding to G.R. No. 622 of 2007, was instituted for the offence under Section 498-A and 307 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, against the accused Shashi Munda and investigation was taken up. After the death of the deceased, Section 304-B of the Indian Penal Code was also added vide order dated 30.03.2007. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 304-B of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 304-B 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, seven witnesses were examined on behalf of the prosecution, including the I.O., and the Doctor who had conducted the post-mortem examination on the dead body of the deceased. The Doctor, who had treated the deceased, has not been examined. 5. PW-1 Ram Bahadur Thapa is the father of the deceased. This witness has stated that the deceased was his daughter, who married the accused Shashi Munda according to Hindu rites and thereafter, she was living at her in-laws’ place. After about one year of the marriage, Shashi Munda started demanding Rs.20,000/- as dowry and he started subjecting his daughter to cruelty and torture. His daughter informed him, but he was not in a position to give the money. On 15.01.2007, Shashi Munda poured kerosene oil on the body of his daughter and put her to fire. His daughter was brought to RIMS, Ranchi, and when this witness asked her, she informed him that her husband had put her to fire. In course of treatment, she died on 26.03.2007. The police arrived and had prepared the inquest report of the dead body, on which he had put his thumb impression. He had identified the accused in the Court. In his cross-examination, this witness has stated that the deceased was married in the year 2003 while she was aged about 19 years. It was a love marriage between the deceased and the accused and the marriage had taken place at the house of the accused. This witness and his wife had not attended that marriage and after the marriage, he never visited his daughter’s place, except on the day of occurrence, and after her death, he had gone there on 27.03.2007. He has stated that the accused had demanded Rs.20,000/- from him also. In his cross-examination, this witness has also stated that the accused used to demand money from his deceased wife and not from him directly, but again he has stated that he had demanded the money from him also. He has stated that the accused had demanded Rs.20,000/- from him also. In his cross-examination, this witness has also stated that the accused used to demand money from his deceased wife and not from him directly, but again he has stated that he had demanded the money from him also. He had called the police after about one month of the occurrence, but he had the knowledge of the occurrence on 15.01.2007 itself. She was brought to the hospital by the parents of the accused. This witness has also admitted in his cross-examination that between the date of the occurrence and the date of her death, the deceased had gone to her in-laws’ place. He has denied the suggestion that there was no demand of dowry. He has also denied the suggestion to have given false evidence. 6. PW-2 Shyam Pati Devi is the mother of the deceased. She has also stated that the deceased married Shashi Munda about four years prior to the occurrence and after her marriage, she was living at her in-laws’ place. After one year of the marriage, the accused Shashi Munda started demanding Rs.20,000/- in dowry and he started subjecting her daughter to cruelty and torture for the said demand. She was informed by her daughter that on 15.01.2007 Shashi Munda put her to fire. Her daughter was treated at RIMS, Ranchi, where she died on 26.03.2007. She had also identified the accused in the Court. In her cross-examination, this witness has also stated that there was love marriage between the deceased and the accused and she had met her son-in-law only once prior to the marriage. The marriage was against the wishes of the parents and the marriage was held at the house of the accused. She has stated that her daughter herself had gone for marriage to the house of the accused, and this witness and her husband had not attended the marriage. She has stated that she had come to know about the occurrence on the next day of occurrence. She was informed about the torture and cruelty for the demand of dowry about four months prior to the occurrence. She has stated that she had come to know about the occurrence on the next day of occurrence. She was informed about the torture and cruelty for the demand of dowry about four months prior to the occurrence. This witness has also stated that in course of treatment of her daughter, she used to visit her in the hospital, and once she was discharged from the hospital and she went to her in-laws’ place, and she used to go to see her daughter at her in-laws’ place also. She has again stated that she got the knowledge about the occurrence on the date of occurrence itself, but she had not gone to the police. After her death, the last rites were performed by this witness. She has denied the suggestion that the deceased had died while she was sitting near the fire and she has also denied the suggestion to have given the false evidence. 7. PW-3 Bhadar Munda and PW-4 Dibru Munda have only stated that the deceased was married to the accused and she died due to burning, in the hospital. She was taken to hospital by her in-laws. Both these witnesses have not stated anything against the accused, rather, in his cross-examination, PW-3 Bhadar Munda has stated that there was no demand of dowry and the parents of the deceased were not happy with the marriage. He has also stated that the deceased was treated in the hospital for about one month. Both these witnesses have stated in their cross-examination that at the time of occurrence, since it was cold, she was sitting near the fire. 8. PW-5 is Dr. Aman Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 26.3.2007, and had found the following ante-mortem injuries :- (i) Dermo-epidermal burn involving front part of chest and abdomen, both lower limbs and both upper limbs. The burnt areas are infected at places. There is evidence of healing at places. This witness has stated that the death was due to the ante-mortem burn injuries and its complications. He had identified the post-mortem report to be in his pen and signature, which was marked Ext.-1. In his cross-examination, he has again stated that death was the combined effect of burn and complications and there were about 70 to 72% burn injuries on the deceased. 9. He had identified the post-mortem report to be in his pen and signature, which was marked Ext.-1. In his cross-examination, he has again stated that death was the combined effect of burn and complications and there were about 70 to 72% burn injuries on the deceased. 9. PW-6 Patras Barua is the I.O. of the case. This witness has stated that he was posted at Gonda Police Station on 21.02.2007, when he received the fardbeyan of the deceased, recorded at RIMS, Ranchi. He has proved the fardbeyan, which was marked Ext.-2. He has stated that on the basis of the fardbeyan, the police case was instituted and has also proved the formal F.I.R., which was marked Ext.-3. He has stated that in course of investigation, he recorded the re-statement of the deceased at the hospital. He recorded the statements of other witnesses and visited the place of occurrence, which he has detailed in his evidence. He arrested the accused on 27.03.2007 and thereafter he received the inquest report from Bariatu Police Station, which also he has proved, and the same was marked Ext.-4. In his cross-examination, this witness has admitted that he had not recorded the statement of the Doctor who had treated the deceased in the hospital and he had not taken the certificate of the treating Doctor while recording the re-statement of the deceased. He has denied the suggestion of making faulty investigation. 10. PW-7 Rajesh Mandal is the Police Officer, who had recorded the fardbeyan of the deceased at RIMS, Ranchi and he has also proved the fardbeyan, which was earlier marked as Ext.-2. In his cross-examination, he has admitted that he is not the I.O. of the case, rather, he had only recorded the fardbeyan of the deceased. He has stated that he was not informed by the deceased as to where she was treated prior to recording of her fardbeyan and he had no knowledge whether prior to recording of the fardbeyan she was discharged from the hospital once or not. He had no knowledge when the deceased was again admitted in the hospital. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. He had no knowledge when the deceased was again admitted in the hospital. 11. 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 two witnesses, who are DW-1 Nirmala Devi, the sister of the accused, who has stated that on the date of occurrence the accused was at her place and they were informed that while she was sitting near the fire, the deceased caught fire. She has also denied the fact about the demand of any dowry. DW-2 is Jeetu Pahan, who has stated that there is no custom of taking dowry by the boy in their religion, rather the dowry is given to the girl. 12. Learned amicus curiae arguing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. He has submitted that though it is a case of alleged bride burning and the fardbeyan of the deceased was recorded in the hospital, while she was alive and undergoing treatment, but it was not recorded in the presence of any witness or in presence of Doctor treating her, certifying that she was in a position to give her statement, and as such, the very fardbeyan of the deceased is absolutely doubtful and in any case, it cannot be treated as the dying declaration of the deceased, in as much as, the deceased had given her fardbeyan on 21.02.2007, while she died in course of treatment after more than one month on 26.03.2007. Learned amicus curiae further submitted that only two witnesses have supported the prosecution case, who are PW-1 Ram Bahadur Thapa and PW-2 Shyam Pati Devi, the parents of the deceased and they are the highly interested witnesses, who were wholly dissatisfied with the marriage and had grudge against the appellant for the marriage, so much so, that both of them have admitted that the marriage had taken place at the house of the accused, where the deceased herself had gone for performing her marriage and none of them had attended the said marriage. Learned amicus curiae further pointed out that even though they have supported the prosecution case, but both these witnesses have admitted in their cross-examination that they came to learn about the occurrence on the date of occurrence itself, i.e., 15.01.2007, and as such, even if it is presumed that soon after the occurrence the deceased was not in a position to give the statement before the police, but there was nothing against them to have informed the police about the occurrence, which they did not. Learned amicus curiae accordingly, submitted that the evidences of both these witnesses are not at all reliable. It is further submitted by learned amicus curiae that delay in lodging the F.I.R. is absolutely fatal for the prosecution case, in as much as, the occurrence had taken place on 15.01.2007, but the information about the occurrence was given only on 21.02.2007, i.e., after more than one month, and during this period the police could have been informed by the parents of the deceased also, as they had full knowledge of the occurrence on the date of occurrence itself. Learned amicus curiae further submitted that the admission of both PW-1 Ram Bahadur Thapa and PW-2 Shyam Pati Devi, of the fact that during the treatment she was released from hospital and thereafter she had visited her in-laws’ place, and not at the place of the parents, also clearly shows that she was not having any grudge against the accused and her in-laws. Learned amicus curiae accordingly, submitted that in the present case the very recording of the fardbeyan is absolutely doubtful, and it is a fit case in which the appellant ought to have been acquitted by the Trial Court below. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence. The F.I.R. has to be treated as the dying declaration of the deceased, in as much as, she had herself given the statement about the manner of the occurrence, stating that she was put to fire by her husband after pouring kerosene oil on her on 15.01.2007, and due to the threatening given by her husband, she had not lodged the case earlier, and she died in course of treatment. It is submitted by learned counsel that the statement of the deceased, as given in the fardbeyan, is fully corroborated by the medical evidence of PW-5 Dr. Aman Kumar, who had found the cause of death to be 70 to 72% burn injuries and the complications arising out of the burn injuries. Even the delay in lodging the police case is fully explained by the deceased herself. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence is of 15.01.2007 and the fardbeyan was given by the deceased on 21.02.2007. Thereafter, the deceased died in course of treatment on 26.03.2007. There is a long gap between the date of occurrence and the date of death of the deceased, of more than two months. In the meantime, the deceased was also discharged from the hospital, but she chose to go to her in-laws’ house, rather than her parents’ place, as admitted by PW-1 Ram Bahadur Thapa and PW-2 Shyam Pati Devi. PW-2 Shyam Pati Devi has also stated that while she was at her in-laws’ place after being discharged, she used to visit her there. It is however, not clear from the evidence on record that the fardbeyan, which was recorded on 21.02.2007, was recorded prior to her discharge from the hospital or after her discharge from the hospital and re-admission in the hospital. It is however, not clear from the evidence on record that the fardbeyan, which was recorded on 21.02.2007, was recorded prior to her discharge from the hospital or after her discharge from the hospital and re-admission in the hospital. In any view of the matter, as it was a case of bride burning and at the time of recording the fardbeyan of the deceased, she was undergoing treatment, it was the bounden duty of the Police Officer, who had recorded the fardbeyan, to have recorded the fardbeyan in presence of the witnesses and also, in the presence of the Doctor treating the deceased, and obtaining a certificate from him that she was in a position to give her statement, but that was not done. The fardbeyan, which has been proved as Ext-2, clearly shows that it does not bear the signature of any witness or the Doctor, rather it bears the signatures of the deceased and the Police Officer recording the fardbeyan only. It was not even recorded in presence of the father and mother of the deceased, as is apparent from the fardbeyan, and both these witnesses are also absolutely silent on this point, though the father of the deceased, PW-1 Ram Bahadur Thapa has stated in his cross-examination that he had called the police after one month of the occurrence. Even the signature of the deceased on the fardbeyan is very doubtful, in view of the evidence of PW-5 is Dr. Aman Kumar and the post-mortem report proved by him as Ext-1, in as much as, both the upper limbs of the deceased were found to be burnt. In course of treatment, when the deceased was discharged from the hospital, she chose to go to her in-laws’ house, rather than her parents’ place, which clearly shows that she had no grudge against her husband. As such, the very recording of the fardbeyan of the deceased becomes very doubtful in the case, and it cannot be treated as the dying declaration of the deceased, for the aforementioned reasons. Even otherwise, there is a time gap of more than one month from the date of recording the fardbeyan and the date of death of the deceased, and in that view of the matter, it appears that there was no imminent danger of death of the deceased, while the fardbeyan was being recorded. Even otherwise, there is a time gap of more than one month from the date of recording the fardbeyan and the date of death of the deceased, and in that view of the matter, it appears that there was no imminent danger of death of the deceased, while the fardbeyan was being recorded. This apart, PW-1 Ram Bahadur Thapa and PW-2 Shyam Pati Devi, though have supported the prosecution case, but it is also admitted by these witnesses that they never used to visit the in-laws’ place of the deceased and they were not happy with the marriage. Their grudge against the accused was so prominent that they had not even attended the marriage of their daughter and the daughter had herself gone to the house of the accused and married him there. PW-1 Ram Bahadur Thapa has also stated in his cross-examination that whatever demand was made, it was made only with his daughter and not directly from him, though he has again retracted and stated that the demand was also made from him also. Both the parents have admitted that they learnt about the occurrence on the date of occurrence itself, i.e., 15.01.2007, and in that view of the matter, the fact that they had not instituted any police case, makes their entire evidence absolutely doubtful, the benefit of which must go to the accused. The other witnesses examined in the case namely, PW-3 Bhadar Munda and PW-4 Dibru Munda, have not supported the prosecution case at all, and they have stated that the deceased died while she was sitting near the fire in a cold January day, which is also the evidence of DW-1 Nirmala Devi, the sister of the accused. 15. In our considered view, neither the evidence of the parents of the deceased inspire any confidence, nor the alleged fardbeyan of the deceased, inspire any confidence, so that it could be treated as the dying declaration of the deceased. We are of the considered view that even though the parents of the deceased have supported the prosecution case, the accused appellant was entitled at least to the benefits of doubt. 16. We are of the considered view that even though the parents of the deceased have supported the prosecution case, the accused appellant was entitled at least to the benefits of doubt. 16. For the foregoing reasons the impugned Judgment of conviction dated 25th February, 2008 and Order of sentence dated 27th February, 2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi in S.T. No. 371 of 2007, convicting and sentencing the appellant Shashi Munda for the offence 304-B of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Shashi Munda is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody undergoing the sentence. He is directed be released and set at liberty forthwith, if his detention is not required in any other case. 17. Before parting with this Judgment, we must record that we have been given able assistance by learned amicus curiae Shri Rajesh Kumar Dubey. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 18. 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.