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2018 DIGILAW 799 (JHR)

Sadhu Das v. State of Jharkhand

2018-04-09

ANIL KUMAR CHOUDHARY

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JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 29.11.2005 passed by the Additional Sessions Judge (FTC-V) Deoghar in S.C. No. 316 of 2004 whereby and whereunder, the accused-appellant has been convicted for the offence punishable under Section 304-B of the Indian Penal Code and sentenced to undergo RI for seven years. 3. The prosecution case in brief as mentioned in the written report is that the appellant married the deceased daughter of the informant namely Kalawati Devi, five years prior to lodging of the written report. One year after the marriage, the appellant being the husband and other relatives of the appellant used to continuously harass the deceased and used to assault her in connection with the demand of Rs. 10,000/- and one cow. Such type of occurrence of torture and assault was repeated for several times. The informant who is the father of the deceased convened a panchayati in the village of the appellant-Marikdih. In the same year of institution of the case in the month of the sawan, the appellant along with his family members drove the deceased-Kalawati Devi out from their house after assaulting her and the deceased came to the house of the informant for shelter. Later on, the appellant came to the house of the informant to take his wife back to his house and when the informant refused to send back his daughter to the house of the appellant the appellant threatened that he will cut the deceased to pieces and will throw her on the hills so that nobody could know about her. On the Saturday, immediately, before the occurrence the appellant took the deceased to his house. On 17.09.2003 the informant met his daughter in Mohanpur village market (Hatia) and the deceased disclosed the informant that she was again being driven out from the house after assault. The informant assured the deceased to somehow stay there and that he will convene a panchayati on the next date i.e. 18.09.2003. On 18.09.2003 at about 7.00 a.m. when the informant along with the co-villagers reached the village of the appellant, he found that the dead-body of his deceased daughter was lying on a cot and no one was there in the house of the appellant. On 18.09.2003 at about 7.00 a.m. when the informant along with the co-villagers reached the village of the appellant, he found that the dead-body of his deceased daughter was lying on a cot and no one was there in the house of the appellant. Froth and cow dung was present on the mouth of the deceased which was cleaned by the informant. It was alleged by the informant that the deceased was poisoned to death. On the basis of the written report lodged by the informant the police registered Mohanpur P.S. Case No. 178 of 2003 corresponding to G.R. No. 690 of 2003 and took up the investigation of the case. After completion of investigation, the police submitted charge-sheet. 4. Upon commitment of the case to the Court of sessions, charge for the offence punishable under Section 304-B, IPC was framed against the appellant. Upon the appellant pleading not guilty, he was put to trial. 5. In support of its case, the prosecution altogether examined thirteen witnesses. Out of which, PW-5, PW-11 and PW-12 did not support the case of the prosecution and were declared hostile on the prayer of the prosecution. 6. PW-9 Govind Das is the informant of the case. He has stated that written report was in the pen of Ram Kishun Das and has been signed by PW-9. On being proved by the PW-9, the written report was marked Exhibit-2. The deceased-Kalawati Devi married the appellant six years before the occurrence. Three years after her marriage, Kalawati Devi was tortured, harassed, assaulted and was denied proper food by the appellant and his relatives for non-fulfilment of the dowry demand of Rs. 10,000/- and a cow. In the month of aashar, the in-laws of Kalawati drove her out from their house and then she came to the house of PW-9 and stayed there for two months. In the month of bhado, the appellant came and confessed his guilt and took away Kalawati Devi to his house after a panchayati was held in the village. Five days after Kalawati Devi was taken by the appellant, PW-9 and his wife PW-6 both met Kalawati Devi in the Mohanpur village market. Kalawati Devi started crying and told PW-9 that the appellant and his relatives are torturing and assaulting her. Five days after Kalawati Devi was taken by the appellant, PW-9 and his wife PW-6 both met Kalawati Devi in the Mohanpur village market. Kalawati Devi started crying and told PW-9 that the appellant and his relatives are torturing and assaulting her. PW-9 assured Kalawati Devi that on the next day, PW-9 will go to the in-laws house of Kalawati Devi for a panchayati. On the next day, PW-9 went to the village of the appellant and saw the dead body of Kalawati Devi lying in front of her in-laws house. PW-9 saw froth coming out from the mouth of Kalawati Devi and there was cow dung on the mouth of Kalawati Devi. The house of the appellant was locked. No one from the family of the appellant was there. The un-laws at Kalawati Devi murdered her in connection with the demand of dowry for Rs. 10,000/- and a cow. PW-9 identified the appellant in the Court. In his cross-examination, PW-9 has stated that the appellant was having landed property and he used to do work of stitching as well. Besides household a work, the deceased Kalawati Devi used to do the work for others as well. The cremation of the Kalawati Devi was done in the village of the appellant. 7. PW-1 Suresh Das who is the brother of Kalawati Devi. He has stated that the occurrence took place on 18.09.2003. Kalawati Devi married the appellant 5-6 years ago. The appellant used to torture Kalawati Devi both physically and mentally and was not giving her proper food. Kalawati Devi met PW-9 on 17.09.2003 in the village market of Mohanpur (Hatia) and she disclosed everything to PW-9. PW-9 told Kalawati Devi that he will convene panchayati. On 18.09.2003, one person of Marikdih which is the village of the appellant informed that Kalawati Devi died at 7.00 a.m. At this, PW-1 and other material prosecution witnesses of this case as well as the villagers went to the village of the appellant. They found the dead body of Kalawati Devi lying on a cot at the house of the appellant and froth was coming out from her mouth. After seizing the dead body, police prepared inquest report which was signed by PW-1, which was marked as Exhibit-1. He identified the appellant in the Court. They found the dead body of Kalawati Devi lying on a cot at the house of the appellant and froth was coming out from her mouth. After seizing the dead body, police prepared inquest report which was signed by PW-1, which was marked as Exhibit-1. He identified the appellant in the Court. To a question from the Court, PW-1 stated that the reason for torture was that at the time of the marriage, though Rs. 20,000/- was given but still the demand of dowry was made. In his cross-examination, he has stated that the house of the appellant is at a distance of 5-6 km. from his house. The daughter of Kalawati Devi is residing with her paternal grand-mother. When Kalawati Devi refused to work outside, the appellant started making the demand of dowry and proper food was denied to Kalawati Devi. She was also confined in a room by locking. The matter was informed to the police in writing earlier also but the police made a settlement between the parties. The mother of the appellant was present near the dead body of Kalawati Devi. Neither the appellant nor his brothers were present there. The appellant used to run his livelihood by stitching. 8. PW-2 Babu Lal Das stated that Kalawati Devi married the appellant five years prior to the occurrence. The appellant used to quarrel in connection with the dowry of demand of Rs. 10,000/- and a cow. The parents of Kalawati Devi were poor fellow and they could not meet the demand of dowry at which, the appellant used to assault Kalawati Devi. PW-9 told the PW-2 that he will convene a panchayati in the village of the appellant. On Thursday, PW-2 went to the village of the appellant and found Kalawati Devi was lying dead. Forth was coming out from her mouth. He identified the appellant in the Court. In his cross-examination, he has stated that witness Mohan Das is his brother and Kalawati Devi was his niece. 9. PW-3 Mohan Das has stated that the marriage of Kalawati Devi and the appellant took place about 5-6 years prior to the occurrence. Some days, after the marriage the appellant used to torture Kalawati Devi. The appellant used to demand of Rs. 10,000/- and a cow. As the PW-9 could not meet the said demand, the appellant used to assault Kalawati Devi. Some days, after the marriage the appellant used to torture Kalawati Devi. The appellant used to demand of Rs. 10,000/- and a cow. As the PW-9 could not meet the said demand, the appellant used to assault Kalawati Devi. In connection with this matter, PW-3 and others went to the house of the appellant but found Kalawati Devi lying dead there on a cot. Froth was coming out form her mouth. In his cross-examination, he has stated that PW-9 is his cousin brother. He did not give any statement to police. 10. PW-4 Fuleshwar Das stated that Kalawati Devi married the appellant 5-6 years prior to the occurrence. On getting information about the death of Kalawati Devi at about 7.00 a.m. 22-25 villagers went to the village Marikdih. He saw the dead body of Kalawati Devi. Froth was coming out from her mouth. The appellant was not in his house at that time. In his cross-examination, he has stated that prior to the occurrence he had no connection with Marikdih. 11. PW-6 Bhusni Devi who is the mother of Kalawati Devi. She has stated about the marriage of Kalawati Devi with the appellant having solmnized six years prior to the occurrence. Three years after the marriage. Kalawati Devi gave birth to a daughter. Thereafter, the appellant and his relatives used to assault her and also drove her out from their house. Kalawati Devi came to the house of PW-6 had stayed there for three months. Thereafter, the appellant took Kalawati Devi to his house. A panchayati was held and thereafter the vidayi of Kalawati Devi was done on Saturday. On the next Wednesday, she met Kalawati Devi at Mohanpur Halia. Kalawati Devi complained to PW-6 that her in-laws were not properly giving her food and that they were denying food to her and confining her by locking her in a room and were assaulting her. PW-6 told Kalawati Devi that PW-9 will do panchayati in her in-laws village and thereafter. Kalawati Devi went to her in-laws house and PW-6 came to her house. On the next Thursday, PW-9 along with his co-villagers went for a panchayati but found the dead-body of Kalawati Devi lying on a cot. Forth was coming out from her mouth. She identified the appellant in the Court. On a question from the Court, she stated that the appellant was making a dowry demand of Rs. On the next Thursday, PW-9 along with his co-villagers went for a panchayati but found the dead-body of Kalawati Devi lying on a cot. Forth was coming out from her mouth. She identified the appellant in the Court. On a question from the Court, she stated that the appellant was making a dowry demand of Rs. 5,000/- and a cow, which was beyond the ability of PW-6 to meet. In her cross-examination, PW-6 has stated that once panchayati was held in Marikdih and once in her village. The appellant was doing the work of stitching and tailoring. 12. PW-7 Sana Das has stated that PW-9 is his brother-in-law by relation. He went to the house of the appellant on getting the news of the death of the Kalawati Devi. Police prepared papers after seizing the dead body of Kalawati Devi, upon which PW-7 put his thumb impression. PW-9 told him that there will be panchayati in the in-laws house of Kalawati Devi and on reaching the in-laws house of Kalawati Devi, they found Kalawati Devi dead. In his cross-examination, he has stated that the big village market (Hatia) is held on every Wednesday at Mohanpur. 13. PW-8 Devi Das has stated that the marriage between Kalawati Devi and the appellant was solemnized six years ago. They were alright for three years and after that, they used to quarrel. The deceased was not given proper food and she was assaulted. In the month of shravan, Kalawati Devi came to her paternal house and stayed for a month. Thereafter, the appellant came but the parents of Kalawati Devi were not willing to send her back because of the torture upon her. A panchayati was convened and PW-8 was also present in the same. It was decided in the panchayati that this time, Kalawati Devi should be sent to her in-laws house and accordingly, Kalawati Devi went to the appellant's house on 17.09.2003. Kalawati Devi met her parents in Mohanpur Hatia and disclosed to them that the appellant and his relatives are again torturing her. PW-8 along with the villagers went to the house of the appellant and found the dead body of Kalawati Devi. Froth was coming out from her mouth. He also identified the appellant. In his cross-examination, he was stated that the daughter of Kalawati Devi and the appellant is residing with her paternal grandmother. PW-8 along with the villagers went to the house of the appellant and found the dead body of Kalawati Devi. Froth was coming out from her mouth. He also identified the appellant. In his cross-examination, he was stated that the daughter of Kalawati Devi and the appellant is residing with her paternal grandmother. Cremation of Kalawati Devi took place at her in-laws place. 14. PW-10 Dr. Binod Kumar conducted the post-mortem examination on the dead-body of Kalawati Devi. He did not find any external wound except froth present in her mouth and nostril. Upon internal examination, he found right heart cavity containing blood clots while the left heart cavity was empty. He has opined that emission of froth from mouth and nose, generally symptomizes poisoning and drowning. On being proved by him, the post-mortem report is marked as Exhibit-3. In his cross-examination, he has stated that the cause of death cannot be opined definitely in absence of Cytochemical report. 15. PW-13 Puneet Deo, is a formal witness. He is an advocate's clerk. He has proved the endorsement made on the written report which has been marked as Exhibit-4 and the signature of the Investigating Officer thereon, which has been marked as Exhibit-5. 16. Learned Court below after taking into consideration the evidence available in the record, convicted and sentenced the appellant, as already indicated above. 17. Mr. Arvind Kumar Choudhary, the learned counsel for the appellant submitted that the learned trial Court failed to appreciate the evidence in record in its proper perspective and failed to take note of the fact that the PW-5, PW-11 and PW-12 did not support the case of the prosecution and also ignored the contradiction in the statement of the prosecution witnesses. It was further submitted that learned Court below failed to take note of the fact that the Investigating Officer has not been examined on behalf of the prosecution to prove the place of occurrence as well as the facts against the appellant. It is further submitted that the learned Court below failed to take note of the fact that not a single independent witness has been examined in support of the case of the prosecution. In support of his contention. It is further submitted that the learned Court below failed to take note of the fact that not a single independent witness has been examined in support of the case of the prosecution. In support of his contention. learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in the case of Baijnath and Others vs. State of Madhya Pradesh, (2017) 1 SCC 101 wherein the Hon'ble Supreme Court in the facts and circumstances of that case, where the High Court converted the acquittal of the accused persons made by the trial Court into conviction, as there was no prior complain to anyone far less to the police and the testimony of four defence witnesses, which was consolidated by the testimony of the two prosecution witnesses was to the contrary to the effect that no demand imputed has ever been made from the family as the husband was adequately well off, held that prosecution has failed to prove the crucial ingredients of cruelty and harassment by direct and cogent evidence thereby disentitle itself to the benefit statutory provision punishable under Section 113 of the Evidence Act and was of the view that the trial Court was right in acquitting the accused persons of that case and set aside the judgment of the High Court converting the acquittal made by the trial Court into a conviction. It is lastly submitted that this is a fit case where the accused-appellant be acquitted of the charge by at least giving him the benefit of doubt. 18. Mr. Shekhar Sinha learned Addl. PP on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that prosecution has established the fact that the marriage of the deceased Kalawati Devi was solemnized with the appellant 5-6 years prior to the date of the occurrence. So, the consistent evidence of all the prosecution witnesses which has not even been challenged in their cross-examination goes to establish beyond all reasonable doubt that the marriage of the deceased was solemnized with the appellant within seven years of her death. So, the consistent evidence of all the prosecution witnesses which has not even been challenged in their cross-examination goes to establish beyond all reasonable doubt that the marriage of the deceased was solemnized with the appellant within seven years of her death. The testimony of PW-9 and PW-6 regarding the demand of dowry and consequential, torture, harassment and treatment with cruelty meted out to the deceased by the appellant and his relatives, was well proved by the testimony of PW-6 and PW-9 and they are the natural witnesses, so far as the facts of demand of dowry and consequential torture meted out to the deceased is concerned. By their evidence, PW-6 and PW-9 have succeeded in establishing that there was demand of dowry in shape of money and a cow even till a day before the death of the deceased, as their testimony that one day before the date of her death i.e. on 17.9.2003, Kalawati Devi disclosed about the same to the PW-6 and PW-9, has not been specifically challenged in their cross-examination by the defence and thus has remained uncontroverted and establishes the fact that the deceased was subjected to cruelty and harassment by her husband being the accused-appellant and his relatives soon before her death and the post-mortem report, which has been marked as Exhibit-3 and the testimony of PW-10 establishes that the death of the deceased was otherwise than under normal circumstances. So it is submitted that the prosecution having established all the ingredients of the offences punishable under Section 304-B, IPC the learned Court below has rightly convicted and sentenced the appellant by the impugned judgment of conviction and order of sentence. It is further submitted by learned Addl. PP that the principle of case of Baijnath and Others vs. State of Madhya Pradesh (supra) is not applicable to this case because that case was a case of conversion of an acquittal by trial Court into conviction by High Court but here even the trial Court on taking into consideration the evidence in the record has rightly convicted the appellant hence, it is submitted that there is no merit in appeal and impugned judgment of conviction and order of sentence be confirmed and the appeal being without any merit, be dismissed. 19. 19. Having heard learned counsel for the parties and on perusal of the record I find that the facts of this case are different from the case of Baijnath and Others vs. State of Madhya Pradesh (supra). PW-1 in his cross-examination has stated that earlier also, the matter was reported to the police but police instead of registering a case, has made an amicable settlement between the parties and this fact, which was elicited in the cross-examination of the PW-1 has remained unchallenged. Further, the evidence in the record, as already mentioned above, which has come through the prosecution evidences that there was panchayati for two times, once in the paternal village of the deceased and once, in the in-laws village of the deceased and this portion of the testimony of the prosecution witnesses has also remains unchallenged. It is settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the case of Laxmibai (Dead) through LRs. and Another vs. Bhagwantbuva (Dead) through LRs. and Others, AIR 2013 SC 1204 in para 31 in this respect held as under:- "31. Furthermore, there cannot be any dispute with respect to the settled lega1 proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, tile unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to ex-plain or elaborate upon any doubts as regards the same in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed and the witness himself is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. Khem Chand vs. State of Himachal Pradesh, AIR 1994 SC 226 : 1993 AIR SCW 3675, State of U.P. vs. Nahar Singh (dead) and Others, AIR 1998 SC 1328 : 1998 AIR SCW 1200, Ravinder Pershad (dead) by LRs. vs. Smt. Darshana Devi, AIR 2001 SC 3207 : 2001 AIR SCW 3042 and Sunil Kumar and Another vs. State of Rajasthan, AIR 2005 SC 1096 : 2005 AIR SCW 589." (Emphasis given by me) In view of the settled principle of law the portion of the testimony of the prosecution witnesses, in respect of which there is absolutely no cross-examination as already mentioned above, is to be accepted. 20. So far as the contention of the appellant regarding non-examination of the Investigating Officer is concerned, the effect of non-examination of Investigating Officer has been considered by the Apex Court in various cases. In the case of Ram Dev vs. State of U.P. 1995 Supp (1) SCC 547, the Apex Court held that it is always desirable for the prosecution to examine the Investigating Officer. However, non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility or otherwise trustworthy testimony of the eye-witness. 21. In the case of Ambika Prasad vs. State (Delhi Administration), AIR 2000 SC 718 , it was held that non-examination of Investigating Officer could not be a ground for disbelieving eyewitnesses. In the case of Bahadur Naik vs. State of Bihar, AIR 2000 SC 1582 , it was held by the Apex Court that non-examination of an Investigating Officer was of no consequence when it could not be shown as to what prejudice had been caused to the appellant by such non-examination. 22. In the case of Bahadur Naik vs. State of Bihar, AIR 2000 SC 1582 , it was held by the Apex Court that non-examination of an Investigating Officer was of no consequence when it could not be shown as to what prejudice had been caused to the appellant by such non-examination. 22. After going through the evidence in record, I find that no attention of any material witness on any vital aspect of his or her testimony was drawn in their cross-examination vis-a-vis their statement recorded by the police. Though, PW-3, who is a witness regarding death of the deceased has stated that he was not examined by police, but even excluding testimony of PW-3, the evidence on the record put-forth by the prosecution through other material witnesses in the considered opinion of this Court, is sufficient to establish the three essential ingredients of the offence punishable under Section 304-B of the IPC i.e. (i) The death of the deceased occurred otherwise than under normal circumstances. (ii) Her death was within seven years of her marriage with the accused-appellant. (iii) It is shown that soon before her marriage; she was subjected to cruelty and harassment by her husband in connection with demand of dowry. 23. Hence, this Court is of the considered view that in this case, non-examination of Investigating Officer is not fatal to the case of the prosecution. Further, unlike the case of Baijnath and Others vs. State of Madhya Pradesh (supra) in this case no witness was examined by the defence nor the defence has taken any specific plea and none of the witnesses of the prosecution has also consolidated the defence version in any manner. 24. In view of the discussions made above. I have no hesitation in holding that the evidence in record is sufficient to establish the charge for the offence punishable under Section 304-B, IPC against the appellant beyond all reasonable doubt and this is a fit case, where the appellant be convicted for the offence punishable under Section 304-B. IPC. It is needless to mention that the minimum sentence prescribed for the offence punishable under Section 304-B, IPC is imprisonment for seven years, hence, the conviction and sentence of the appellant as made by the Court below is confirmed and the appeal being without any merit is dismissed. 25. It is needless to mention that the minimum sentence prescribed for the offence punishable under Section 304-B, IPC is imprisonment for seven years, hence, the conviction and sentence of the appellant as made by the Court below is confirmed and the appeal being without any merit is dismissed. 25. Perusal of the record reveals that the appellant is on bail granted to him in this appeal. In view of the confirmation of his conviction and sentence, his bail is cancelled and he is directed to surrender before the learned trial Court forthwith to undergo the remaining part of the sentence, failing which, the learned trial Court is directed to take all coercive steps for his apprehension for undergoing the sentence. 26. Let the original Lower Court Records be sent back to the Court concerned forthwith, along with a copy this judgment. Appeal dismissed.