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2022 DIGILAW 619 (JHR)

Sanichari Devi v. State of Jharkhand

2022-06-08

NAVNEET KUMAR

body2022
ORDER : 1. Both the appeals are directed against the judgment of conviction and order of sentence dated 16.12.2004 and 20.12.2004 respectively passed by the court of Additional Distt. & Sessions Judge, Fast Track Court IV, Giridih in Sessions Trial No. 297 of 2003 whereby and whereunder the learned court below has convicted both the appellants for the offence punishable under Section 304-B/34 of the Indian Penal Code and both of them were sentenced to undergo R.I. for 7 years for the offence punishable under Section 304-B/34 of the Indian Penal Code. 2. The prosecution story arose in the wake of the written report of the informant P.W. 1 Indramani Sao on 25.01.2003 addressed to the Officer-In-Charge of Nimiaghat, Police Station in the district of Giridih. Briefly stating the prosecution case as unfolded in the said written report is as under : The informant stated that his daughter/deceased was married two years back with the Arjun Sao, appellant in Cr. Appeal (SJ) No. 117 of 2005, as per the Hindu Rites and Customs. It has further been alleged that after the marriage, the appellant Arjun Sao, his mother Sanichari Devi and sister Sitwa Devi started demanding a sum of Rs. 20,000/- from the deceased Sonia Devi and for this they used to cause torture to her. It has further been alleged that they used to threaten her that if the demand is not fulfilled then they would kill her and her dead body would be thrown to the railway line. It has further been stated by the informant that on 25.01.2003 at about 7 A.M. the informant got a telephonic message from his elder son-in-law Nandlal Sao (not examined although cited as a witness by the prosecution) and having received such information he went to another village Rangamati, P.S. Nimiaghat, District Giridih where he found the dead body of his daughter Sonia Devi was lying near the railway line and the house of the accused appellants was locked. It has further been stated that the accused persons were absconding. 3. On the basis of the aforesaid written report dated 25.01.2003, a formal F.I.R. was instituted by Nimiaghat Police Station vide P.S. Case No. 07 of 2003, vide dated 25.01.2003 for the offence punishable under Sections 304-B/201/34 of the Indian Penal Code and under Sections 3/4 of the Dowry Prohibition Act and the investigation of the case commenced. 3. On the basis of the aforesaid written report dated 25.01.2003, a formal F.I.R. was instituted by Nimiaghat Police Station vide P.S. Case No. 07 of 2003, vide dated 25.01.2003 for the offence punishable under Sections 304-B/201/34 of the Indian Penal Code and under Sections 3/4 of the Dowry Prohibition Act and the investigation of the case commenced. After the completion of the investigation, the charge sheet was submitted for the offence punishable under Section 304-B/201/34 of the Indian Penal Code. After submission of the charge sheet, the charge was framed against three accused persons including these two appellants Arjun Sao, Sanichari Devi and one Sitwa Devi for the offence punishable under Sections 304-B/201/34 of the Indian Penal Code and after conducting the trial one of the accused Sitwa Devi was acquitted and rest two accused persons Arjun Sao, Sanichari Devi (both the appellants) were convicted for the offence punishable under sections 304-B/34 of the Indian Penal Code and both of them have been acquitted for the offence punishable under Section 201 of the Indian Penal Code by the impugned judgment of conviction and order of sentence which is under challenge. 4. Heard Mr. Shree Nivas Roy, learned counsel appearing on behalf of the appellants and Mr. P.K. Appu and Mrs. Nehala Sharmin, learned A.P.P. appearing on behalf of the State. Arguments on behalf of the Appellants 5. Assailing the impugned judgment of conviction and order of sentence, the learned defence counsel appearing on behalf of the appellants submitted that the learned trial court failed to analyze the evidences brought on record by the prosecution. As the prosecution has failed to establish the time, death and genuineness of the First Information Report and the involvement of the appellants are not proved beyond reasonable doubts. It has been pointed out that the learned court below failed to appreciate that P.W. 2 doctor, had deposed that the cause of death was injury caused by hard, heavy and blunt substance like RTA (Road Traffic Accident/Rail Road Traffic Accident) and further the learned court below did not take into consideration that there was no iota of evidence of the demand of dowry soon before her death and also there is no evidence that due to non-fulfillment of demand of dowry she was subjected to torture and cruelty to meet the demand of dowry. Rather the father of the deceased, P.W. 1 categorically stated in his deposition that he was not in a position to disclose about the manner mode and date of demand of dowry, indicating that one of the important ingredients for constituting the offence under Section 304-B of IPC i.e. torture and cruelty due to demand of dowry just before the death, has not been substantiated. Further, the learned counsel appearing on behalf of the appellant submitted that most of the important witnesses including the P.W. 3 Sewa Sao, P.W. 4 Hamid Mian, P.W. 5 Kurban Ansari and P.W. 6 ChaitaTuri have been declared hostile as they have not supported the case of the prosecution. Further, it has been pointed out that one of the most important witnesses from whom informant came to know about the death of his daughter i.e. Nandlal Sao who was another son-in-law of the informant has not been examined although he has been cited as a witness in the charge sheet by the prosecution. Further, it has been pointed out that for want of the evidence the possibility of the death due to the rail accident cannot be ruled out in view of fact that not a single incident has been narrated by the informant (father of the deceased) P.W. 1 about causing torture and cruelty to the deceased nor any prior information was ever given to the police or any person who had corroborated that the appellants had been causing torture and cruelty to the deceased for want of dowry before the alleged incident of death and, therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the State 6. Further, on the other hand, the learned A.P.Ps. appearing on behalf of the State in both the appeals submitted that the learned trial court has rightly passed the impugned judgment of conviction and order of sentence under which both the appellants have been convicted for the offence punishable under Sections 304-B/34 of the Indian Penal Code. All the ingredients of Section 304-B of IPC i.e. the dowry death has taken place within 7 years of marriage and demand of dowry followed by torture and cruelty by the appellants has been substantiated by the P.W.1, who was the father of the deceased. 7. All the ingredients of Section 304-B of IPC i.e. the dowry death has taken place within 7 years of marriage and demand of dowry followed by torture and cruelty by the appellants has been substantiated by the P.W.1, who was the father of the deceased. 7. Further, the learned A.P.P. has also stated that P.W. 2, Dr. Kamleshwar Prasad conducted the post mortem of the deceased and opined that the cause of death was shock and hemorrhage due to the injury caused by the hard, heavy and blunt substance like RTA (Road Traffic Accident/Rail Road Traffic Accident) and, therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence passed by the learned court below and these appeals are fit to be dismissed being devoid of merit. Appraisal & Findings 8. Having heard the parties, perused the record of this case including the lower court record. 9. Further in order to substantiate the charges levelled against the appellants, altogether eight witnesses have been examined which are as under:- 1. P.W. 1, Indramani Sao (Informant/father of deceased) 2. P.W. 2 , Dr. Kamaleshwar Prasad 3. P.W. 3, Sewa Sao 4. P.W. 4, Hamid Mian 5. P.W. 5, Kurban Ansari 6. P.W. 6, ChaitaTuri 7. P.W.7, A.S.I. Chandan Tuddu, and 8. P.W.8, S.I. Brajlal Mandal Apart from the oral evidences some of the documentary evidences have also been proved by the prosecution which are Ext.1 written report of the F.I.R, Exhibit 2 Post Mortem report proved by P.W. 2 and Exhibit 3, the formal F.I.R. 10. The case of the prosecution is that both the appellants have been causing torture and cruelty to the deceased for fulfillment of the demand of dowry of Rs. 20,000/- and when the same was not fulfilled then both the appellants namely Arjun Sao and Sanichari Devi committed the murder of the daughter of the informant namely, Sonia Devi for want of dowry. The appellant Arjun Sao is the husband and the appellant Sanichari Devi is the mother-in-law. 20,000/- and when the same was not fulfilled then both the appellants namely Arjun Sao and Sanichari Devi committed the murder of the daughter of the informant namely, Sonia Devi for want of dowry. The appellant Arjun Sao is the husband and the appellant Sanichari Devi is the mother-in-law. In order to appreciate, the deposition and witnesses examined on behalf of the prosecution, it is necessary to appreciate the ingredients of Section 304-B of the Indian Penal Code which is as under:- 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. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. 11. It is admitted case of the prosecution that the appellant Arjun Sao of Cr. Appeal (SJ) No. 117 of 2005 had married with the deceased two years prior from the date of occurrence i.e. within 7 years as per requirement of Section 304-B of IPC. The deceased died due to shock and hemorrhage, as a result of the injuries caused by hard, heavy and blunt substance including Road Traffic Accident/Rail Road Traffic Accident as opined by the doctor P.W. 2 which is an unnatural death within the meaning of Section 304-B of the Indian Penal Code. The another ingredient that there should be an evidence of causing torture and cruelty for want of dowry, the learned defence counsel has taken strong plea that there is no evidence of demand of dowry as per the witnesses examined on behalf of the prosecution including P.W. 3 Sewa Sao, P.W. 4 Hamid Mian, P.W. 5 Kurban Ansari, P.W.6 ChaitaTuri. The another ingredient that there should be an evidence of causing torture and cruelty for want of dowry, the learned defence counsel has taken strong plea that there is no evidence of demand of dowry as per the witnesses examined on behalf of the prosecution including P.W. 3 Sewa Sao, P.W. 4 Hamid Mian, P.W. 5 Kurban Ansari, P.W.6 ChaitaTuri. The learned defence counsel inter-alia has also taken the strong plea that even the father of the deceased P.W. 1 has also not substantiated about the torture and cruelty caused by the appellants for want of demand of dowry. In order to appreciate the defence taken on behalf of the appellants vis-a-vis the testimony of the witnesses examined on behalf of the prosecution, this Court proceeds to examine the witnesses, inter-alia, on the point of torture and cruelty for want of demand of dowry. 12. P.W. 1. Indramani Sao in para 24 in the cross examination has stated that he did not know as to when the accused persons were demanding dowry, neither he could disclose about the day, month or any other details with respect to the demand of dowry nor did he narrate any particular incident about causing torture or cruelty in connection with the demand of dowry. He categorically stated in para 24 that he had informed neither to the police station nor anywhere about the torture and cruelty caused for the demand of dowry by the appellants. Subsequently, in para 25 he stated that there had been a Panchayati in Rangamati was conducted, but, nothing was documented about the outcome of the panchayat nor has he received any paper to that effect. From the deposition of this witness the charge of causing torture and cruelty for want of dowry is not substantiated at all because the father P.W. 1 himself stated that he could not know as to when the demand of dowry was sought by the accused appellants. There is no whisper in the entire testimony about the manner and mode of causing cruelty or any date or any specific allegation against any one of the two appellants including either Arjun Sao (husband) or Sanichari Devi (mother-in-law). There is no whisper in the entire testimony about the manner and mode of causing cruelty or any date or any specific allegation against any one of the two appellants including either Arjun Sao (husband) or Sanichari Devi (mother-in-law). Further, it is found in para 17 that the elder son-in-law Nandlal Sao of the informant was residing near the house of the appellant Arjun Sao and the house of both the appellants Arjun Sao and the elder son-in-law of the informant, Nandlal Sao was situated on the opposite side of the Railway line where the dead body of the deceased is said to have been found and, therefore, since the deceased and her elder sister was residing in the nearby which is situated apart from the Railway line and, therefore, the defence of the appellants that she died due to the accident of the Railway Traffic accident could not be ruled out which has been substantiated by the depositions of the doctor also where he has stated that the deceased died in Road Traffic Accident/Rail Road Traffic Accident. Thus, cause of death as opined by the doctor is also substantiated that it is a Rail Traffic Accident. Further, the charge of torture and cruelty for the demand of dowry is also mitigated and ruled out because of the specific versions of the witnesses who have been examined on behalf of the prosecution as P.W. 3 Sewa Sao, P.W. 4 Hamid Mian, P.W. 5 Kurban Ansari, and P.W.6 Chaita Turi. 13. P.W. 3 Sewa Sao has stated in para 7 that the deceased (wife of the appellant) was living happily in her marital home and there was no any demand of dowry nor any torture or cruelty caused by her husband. He had also stated in para 8 that the said railway line from where the dead body was found was prone to the accident and frequently the animals of the villages were meeting with accident and used to succumb with the accident due to accident prone areas. 14. P.W. 4 Hamid Mian had also stated that he did not know as to how she died and he cannot say as to whether she has been thrown to the railway line after killing her. 14. P.W. 4 Hamid Mian had also stated that he did not know as to how she died and he cannot say as to whether she has been thrown to the railway line after killing her. In para 5, this witness has categorically stated that the deceased was never subjected to cruelty for want of demand of dowry in her marital home nor any incident has taken place on the preceding night of the occurrence. This witness has also been declared hostile as he has not supported the case of the prosecution. 15. P.W. 5 Kurban Ansari has also stated in his examination-in-chief that the deceased was living very comfortably in her marital home. In the cross examination this witness has stated that these accused persons have never caused any torture and cruelty for demand of dowry nor the deceased had made complaint about the same for the demand of dowry against them. 16. P.W.6. Chaita Turi stated that he never heard that the accused persons were demanding the dowry from the deceased and for fulfillment of the demand of dowry they were causing torture and cruelty to her. This witness has stated that they did not know how she died. 17. In view of the deposition of P.W. 3, P.W. 4, P.W. 5 & P.W. 6 it has been consistently and uniformly established that there had never been any torture and cruelty caused by the appellants to the deceased which is also not disclosed at all by the P.W. 1, who is the father of the deceased and, therefore, there is no evidence at all in the entire testimony of the witnesses examined on behalf of the prosecution with respect to the torture and cruelty by these appellants to the deceased for want of demand of dowry and thus one of the most important ingredients to substantiate the offence punishable under section 304-B of IPC that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand of dowry, is not substantiated at all even by slightest evidence. 18. In this view of matter, the defence on behalf of appellants that she died because of rail traffic accident cannot be ruled out. 18. In this view of matter, the defence on behalf of appellants that she died because of rail traffic accident cannot be ruled out. Further, P.W. 7, A.S.I. Chandan Tuddu, I.O. in this case has been examined and he had validated that the dead body of the deceased was found near the railway track. This witness has not submitted the charge sheet. This witness has also stated in para 7 that he has received the information from the wireless set that one lady was killed in a railway accident and the dead body was along the railway line and accordingly, this witness has proceeded to the place of occurrence and, therefore, the defence taken on behalf of the accused appellant that she met with the railway accident is very much credible and feasible inasmuch as for the demand of dowry torture and cruelty caused by the appellants are not established at all. 19. P.W. 8 Brajlal Mandal has taken the charge of investigation of this case from P.W. 7 and he has submitted the charge sheet. From perusal of the charge sheet, it appears that the important witness Nandlal Sao who is F.I.R. named witness from whom the information was received was cited as witness, but, he has not been examined by the prosecution in the trial of the case. As per section 114 of the Indian Evidence Act, 1872 that non examination of this witness shall lead to this court to presume that it was a pure accidental death and not the dowry death within the meaning of section 304-B of the IPC, and the presumption goes to the benefit of the defence of the appellants which is ample clear from the section 114 (g) of Indian Evidence Act, 1872 which reads as under : - 114 – The Court may presume existence of certain facts. ---- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Illustrations The Court may presume - (a)……… ................ ---- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Illustrations The Court may presume - (a)……… ................ (f)……… (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; In view of categorical provisions of law it is well founded that FIR named witness Nand Lal Sao, from whom the informant got the information first of all that the deceased died, had not been examined on behalf of the prosecution despite the said Nand Lal Sao has been cited, as F.I.R. named witnesses then it is presumed as emanating from the evidences discussed above that the deceased had died in Rail Traffic Accident. 20. Recapitulating, the entire depositions and the appraisal of the evidences in the foregoing paragraphs, it is well founded that the learned trial court has miserably failed to appreciate the evidences available on record particularly with respect to the demand of dowry and due to non-fulfillment of demand of dowry, these appellants were causing torture and cruelty in order to constitute the offence under Section 304-B of the Indian Penal Code. The most important witness upon whom the learned trial court has relied upon is P.W. 1, who is the father of the deceased, had never whispered a single word about the manner, mode, date and time of causing any kind of torture and cruelty for demand of dowry against any one of appellants, rather from his version it appears that he has supported the case of the defence taken on behalf of the appellants that she met with the rail accident and died on the railway track because the elder son-inlaw of the informant Nandlal Sao, and sister of the deceased were living just in the vicinity to the house of the appellant, Arjun Sao across the railway track and, therefore, the possibility of the meeting of the deceased to her sister and thereby causing Rail accident in visiting the house of her elder sister cannot be ruled out. Further, it is also found that informant had at first received the information about the death of the deceased from Nandlal Sao, who is the elder son-inlaw, whose house was situated just vicinity to the house of Arjun Sao, the appellant, but, the said Nand Lal Sao has not been examined on behalf of the prosecution although he was cited as one of the witnesses by the prosecution. Further, it is also pertinent to take into account that the charge was framed under Section 201 of the Indian Penal Code along with section 304-B of IPC that the appellants after causing death threw the body of the deceased to the railway line for disappearance of the evidence with the intention of screening themselves from the legal punishment, but, the offence under section 201 of IPC has not been proved and both the appellants have been acquitted for the offence punishable under Section 201 of the Indian Penal Code meaning thereby that the case of the prosecution that after killing the deceased, she was thrown by the appellants on the railway line under the pretext to take the advantage of death due to railway accident, i.e. causing disappearance of the evidence of 304-B of IPC with the intention of screening themselves from the legal punishment, has not been proved. Further the charge of Dowry death by the appellants are also not proved from the evidences as found from the testimonies of the witnesses examined on behalf of the prosecution and one of the important ingredients to constitute the offence of Dowry death i.e. about the causing torture, cruelty and demand of dowry is not substantiated at all. 21. In view of aforesaid findings the impugned judgment of conviction dated 16.12.2004 and order of sentence dated 20.12.2004 passed by the court of Additional Distt. & Sessions Judge, Fast Track Court IV, Giridih in Sessions Trial No. 297 of 2003, against the appellants for the offence punishable under Section 304-B/34 of the Indian Penal Code, does not hold good and fit to set aside. 22. Accordingly, the impugned judgment of conviction dated 16.12.2004 and order of sentence dated 20.12.2004 passed by the court of Additional Distt. & Sessions Judge, Fast Track Court IV, Giridih in Sessions Trial No. 297 of 2003, against the appellants for the offence punishable under Section 304-B/34 of the Indian Penal Code are set aside. 23. 22. Accordingly, the impugned judgment of conviction dated 16.12.2004 and order of sentence dated 20.12.2004 passed by the court of Additional Distt. & Sessions Judge, Fast Track Court IV, Giridih in Sessions Trial No. 297 of 2003, against the appellants for the offence punishable under Section 304-B/34 of the Indian Penal Code are set aside. 23. In the result, the appeal is allowed. 24. Both the appellants are on bail and as such they are discharged from the liabilities of the bail bonds. 25. Let the LCR be sent back to the learned court below to comply the order of this Court and to take the necessary action.