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2022 DIGILAW 949 (JHR)

Chandrama Devi v. State of Jharkhand

2022-07-29

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is directed against the Judgment of Conviction dated 9th March 2005 and order of sentence dated 14th March 2005 passed by learned Additional District & Sessions Judge, FTC No. IX, Jamshedpur, in S.T. No.132 of 2004 whereby and where under all the appellants were found guilty and convicted for the offence punishable under Section 498-A of the IPC, 1860 and further the appellant No.1 Chandrama Devi was sentenced to the period already undergone by her and in addition to that, she was directed to pay a fine of Rs.1,000/- and in default of payment of fine, she was directed to undergo S.I. for two months, whereas the appellant No.2 and 3 were sentenced to undergo R.I. for a period of two years and in addition to imprisonment, each of them were directed to pay a fine of Rs.500/- and in default of payment of fine, they were directed to undergo S.I. for one month and benefit of Section 428 Cr.P.C. is also extended to the them. 2. The prosecution story arose in the wake of written statement of PW – 7 Sita Ram Singh dated 29.10.2003 addressed to the Officer In-charge of Sidgora police station, Jamshedpur. Briefly stating the allegations as set-out in the said written application of the informant are as under. It has been stated by the informant that his daughter Baby Devi was married to Subodh Kumar Pandey (appellant No.2) on 16.05.1995 and she was subjected to harassment for the demand of dowry of motorcycle and cash just after one year of marriage and recently also, she was subjected to cruelty and torture for the fulfilment of demand of dowry and thereafter she was sent to her parents’ house, warning her to come back along with the motorcycle and cash amount. It has further been alleged by the informant that she was taken away forcefully on 25.10.2003 and on 29.10.2003, they came to know that she was killed. It has been claimed by the informant that she was murdered for want of fulfilment of demand of dowry, i.e. motorcycle and cash amount. 3. On the basis of the aforesaid written application submitted by the informant, a formal FIR was drawn vide Sidgora P.S. Case No.104 of 2003, corresponding to G.R. No.1880 of 2003, registered under Sections 304-B/34 of the IPC and thereafter investigation of the case commenced. 3. On the basis of the aforesaid written application submitted by the informant, a formal FIR was drawn vide Sidgora P.S. Case No.104 of 2003, corresponding to G.R. No.1880 of 2003, registered under Sections 304-B/34 of the IPC and thereafter investigation of the case commenced. Further, it appears that after completion of investigation, the police submitted the charge-sheet against the accused appellants for the offence punishable under Sections 306/34 of IPC and after taking cognizance, the case was committed to the Court of Sessions and the learned trial Court on the very receipt of the record of the case, farmed the charge on 20.09.2004, for the offence punishable under Sections 498-A of IPC against all the three accused appellants and further, the lower court also framed charges against two of the accused-appellants, namely appellant No.3 Mukesh Pandey and appellant No.1 Chandrama Devi for offence punishable under section 306 of IPC in addition offence punishable under Section 498-A of IPC and after conclusion of the trial, learned trial court acquitted the appellants for the offence punishable under Section 306 of IPC and held all the three appellants namely, appellant No.1 Chandrama Devi(mother-in-law) appellant No.2 Subodh Kumar Pandey (Husband) and appellant No.3 Mukesh Pandey(Brother-in-law) guilty for the offence punishable under Section 498-A of IPC by passing the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Ms. Amrita Sinha, the learned defence Counsel appearing on behalf of the appellants assisted by Advocate Ms. Madhvi Nikunj Horo and Mr. Shailesh Kumar Sinha, APP appearing on behalf of the State. Arguments advanced on behalf of the appellants: 5. Assailing the impugned judgment of conviction dated 9.03.2005 and order of sentence dated 14.03.2005, it has been submitted by the learned defence counsel that the learned trial court did not apply its judicial mind properly in appreciation of the evidences adduced on behalf of the prosecution in a holilistic manner and the version of the important witnesses including the father, son and even the mother of the deceased had not been taken into account in the right perspective and passed the impugned judgment of conviction and order of sentence, which is bad in law. It has further been pointed out that the other witnesses, who have been examined on behalf of the prosecution including PW – 1 & PW – 2 have not supported the case of the prosecution including the son (PW – 4), the father (PW – 7) and the brother of deceased (PW – 8). It has also been pointed out that even the mother of the deceased PW – 6 in the cross-examination did not disclose any specific incident for causing torture and cruelty to the deceased by the appellants, rather she categorically stated in the cross-examination that any kind of torture, cruelty or harassment being caused by the appellants for want of demand of dowry of vehicle and money to the deceased had never happened in her presence, as evident from para 16 of her cross-examination and all these categorical depositions of the mother of the deceased have not been taken into consideration by the learned trial court and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State: 6. On the other hand, learned APP appearing on behalf of the State opposed the contentions raised on behalf of the learned defence counsel and submitted that the mother of the deceased (PW – 6) in her examination-in-chief has wholly corroborated the case of the prosecution and therefore even if the other witnesses including the son (PW – 4), father (PW – 7) and brother (PW – 8) of the deceased did not support the case of the prosecution, the learned trial court has rightly appreciated the evidence of PW – 6 and passed the impugned judgment of conviction and order of sentence and therefore this appeal is fit to be dismissed for want of merit. Appraisal & Findings 7. Having heard the learned counsel for the parties, perused the records including the lower court record. 8. In order to substantiate its case, the prosecution has been able to examine altogether 13 witnesses which are as under : 1. P.W. 1 Pramod Kumar Jha, 2. P.W. 2 Rakesh Kumar Singh 3. P.W. 3 Dr. Lalan Chaudhary 4. P.W. 4 Vishal Kumar Pandey 5. P.W. 5 Poorva 6. P.W. 6 Smt Indra Devi 7. P.W. 7 Sita Ram Singh 8. P.W. 8 Krishna Mohan Singh 9. P.W. 9 Satish Kumar Sinha (SI) 10. P.W. 1 Pramod Kumar Jha, 2. P.W. 2 Rakesh Kumar Singh 3. P.W. 3 Dr. Lalan Chaudhary 4. P.W. 4 Vishal Kumar Pandey 5. P.W. 5 Poorva 6. P.W. 6 Smt Indra Devi 7. P.W. 7 Sita Ram Singh 8. P.W. 8 Krishna Mohan Singh 9. P.W. 9 Satish Kumar Sinha (SI) 10. P.W. 10 Ragini Jha 11. P.W. 11 Panna Kumar 12. P.W. 12 Shiv Charan Gope and 13. P.W. 13 Ghanshyam Pandit. In addition to aforesaid oral evidences, the prosecution also brought on record inquest report (Ext.1), Post-mortem Report (Ext.2), Fardbeyan (Ext.3), endorsement and signature on FIR as (Ext. 4-5), seizure list (Ext.6) and statement recorded under section 161 Cr.P.C. of witnesses who have turned hostile as Ext. 7, 8, 9 and 10. 9. The defence had also managed to bring on record two documents, i.e. the statement recorded under Section 161 of Cr.P.C. of PW – 1 & PW – 2, vide Exhibit No. PW – 1/D.A and PW -2 /D.A. respectively. 10. It is found from the record that all the appellants were charged for the offence punishable under Section 498-A of IPC and appellant No.3 Mukesh Pandey and appellant No.1 Chandrama Devi, in addition to Section 498-A of IPC, both of them were also charged for the offence punishable under Section 306 of IPC and after full-fledged trial, learned trial court convicted all the three appellants, namely, appellant No.1 Chandrama Devi(mother-in-law) appellant No.2 Subodh Kumar Pandey(Husband) and appellant No.3 Mukesh Pandey(Brother-in-law) for the offences punishable under Section 498-A of IPC and acquitted the concerned appellants namely, appellant No.3 Mukesh Pandey and appellant No.1 Chandrama Devi (mother-in-law) for the offence punishable under Section 306 of IPC. 11. 11. PW – 1 Pramod Kumar Jha being the Home Guard is an inquest report witness and he has proved his signature on the inquest report and PW – 2 Rakesh Kumar Singh is another neighbour of parental house of Baby Devi (deceased) and both of these witnesses being the neighbours, have been confronted with their earlier statements recorded under Section 161 of the Cr.P.C. vide Exhibit PW – 1 / D.A. and vide Exhibit PW – 2 / D.A. where the facts that the appellants were demanding the dowry of cash of rupees one lakh and motor cycle and for the fulfilment of demand of dowry, they were causing harassment and torture to the deceased Baby Devi, were not found mentioned in their earlier statements recorded under Section 161 of the Cr.P.C. vide exhibit PW – 1 / D.A. and vide Exhibit PW – 2 / D.A., and therefore these witnesses are not trustworthy and reliable and fit to be discarded. The learned trial court has committed error by ignoring these facts in the testimonies of these witnesses despite major inconsistences found in their depositions vis-à-vis earlier statement given before the police. 12. PW-3 is the doctor Lalan Choudhary, who proved the postmortem report, which has been marked as Exhibit – 2 where it was opined that the death was caused due to asphyxia as a result of hanging and abrasion and contusion were caused after hanging. Since the charge for the offence under Section 306 of IPC has not been proved in the trial court and therefore the deposition of this witness is not of much relevance in absence of an iota of evidences by any one of the witnesses examined on behalf of the prosecution that these appellants had assaulted the deceased. 13. PW – 4 Vishal Kumar Pandey, who is said to be the son of the deceased, categorically stated that her mother was beaten by maternal uncle (namely, Krishna Mohan mama) and not by any one of the appellants. 13. PW – 4 Vishal Kumar Pandey, who is said to be the son of the deceased, categorically stated that her mother was beaten by maternal uncle (namely, Krishna Mohan mama) and not by any one of the appellants. From the deposition of this witness, it is found that he was five to six years old at the time of recording his statement during the course of trial and the learned trial court had put several questions before commencement of the trial in order to determine and ascertain his state of mind for understanding as to whether he was in a position to give the correct answer or not as a competent witness and therefore several specific questions were asked from this witness, who was a minor son of the deceased at the relevant time and the learned trial court after being satisfied that he was capable to answer the questions rationally after understanding the same, allowed this witness to depose. This witness (P.W.4) never uttered a single word against any one of the appellants with respect to cause of any kind of torture or cruelty or harassment for demand of dowry, but despite the proper appreciation of the testimony of this witness, learned trial court did not rely upon the testimony of this witness for the reason best known to the court concerned, even the categorical question was put before him as to whether he had been tutored or not to reply the question, upon which, this witness (PW-4) stated that he had never been tutored or asked to give the statement in a particular manner. He explicitly stated that there had not been any quarrel of his deceased mother with his father or grandmother or uncle and thus this witness has falsified the case of the prosecution and in this view of the matter, this court finds that PW – 4 is a very reliable and trustworthy witness and his version cannot be discarded despite the fact that he was allowed by the court to be cross-examined by the learned APP (Prosecution) after being declared hostile when he started speaking truth. 14. PW – 5 Purva (daughter of the deceased) was a child aged 3 to 4 years and not found competent witness by the trial court and therefore he could not be examined. 15. 14. PW – 5 Purva (daughter of the deceased) was a child aged 3 to 4 years and not found competent witness by the trial court and therefore he could not be examined. 15. PW – 6 Smt. Indra Devi, who is the mother of the deceased, although on earlier occasion in the examination-in-chief, she has supported the case of prosecution, but later on in the cross-examination, she specifically and very pointedly stated that the deceased was never tortured or harassed for want of demand of dowry and in para 17 she disclosed the reason of the death of her daughter that her daughter Baby wanted to live separately along with her husband, but her husband did not agree and therefore, because of depression, she committed suicide. In para 16 of her deposition in the cross-examination she stated in unequivocal words that there had never been demand of any kind of money or vehicle in her presence nor her daughter Baby (deceased) was assaulted by them. Thus, the entire case of prosecution that these appellants were causing torture and cruelty by assaulting her for demand of dowry is totally demolished by the statement of the mother of the deceased herself. Thus it is found the learned trial court erred in holding the guilt of the accused persons on the depositions of mainly P.W.6 (mother) without appreciating her testimonies in an impartial manner as discussed above. 16. The father PW -7 Sita Ram Singh has been examined on behalf of the prosecution, who is the informant of this case also and he has been declared hostile by the prosecution. The father of the deceased (P.W.7) stated in his examination-in-chief that her daughter had never stated before him about the nature of the in-laws’ people as to whether they were causing harassment, cruelty and any kind of torture for demand of dowry. In the cross-examination conducted on behalf of the prosecution, after being declared hostile, he categorically stated that he did not tell the police that the deceased had told him that in-laws’ people used to cause torture for demand of motorcycle and Rupees one lac and he had never seen any kind of injury on her body. The informant (P.W.7) also stated that he did not know the contents of his Fardbeyan (Ext. 3), which was neither written at his instance nor narrated by him. The informant (P.W.7) also stated that he did not know the contents of his Fardbeyan (Ext. 3), which was neither written at his instance nor narrated by him. Therefore the father of the deceased did not support the case of prosecution and negated all the charges levelled against the accused-appellant. 17. PW – 8 Krishna Mohan Singh is said to be the brother of the deceased, who stated in his examination-in-chief that the in-laws’ people of his sister were having the cordial relationship with her and he had never heard that they had caused any kind of harassment for want of demand of dowry. This witness categorically stated that he was never interrogated by the police and thus he has also not supported the case of the prosecution. 18. PW -9 Satish Kumar Singh is the I.O. of this case and has proved the FIR- Ext. 5, endorsement- Ext. 4 on the written statement- Ext. 3. He has also proved the inquest report, which has been marked as Ext. 1. He has also proved the seizure list, which has been marked as Ext. 6. This witness had recorded the statement of the witnesses namely PW-7 Sita Ram Singh, PW – 6 Indra Devi, PW – 8 Krishna Mohan and PW – 4 Vishal under Section 161 of Cr.P.C., which have been marked as Ext. 7, Ext. 8, Ext. 9 and Ext. 10. 19. PW – 10 Ragini Jha is the neighbour and she has been declared hostile, when she stated that he did not know about the marriage of Baby Devi with whom she was married. This witness has been declared hostile and in the cross-examination conducted on behalf of the prosecution nothing has been elicited to substantiate the case of the prosecution. 20. PW – 11 Panna Kumar is the neighbour and he also did not support the case of prosecution by stating that he did not know the behaviour of the accused persons with the Baby Devi who died of hanging. 20. PW – 11 Panna Kumar is the neighbour and he also did not support the case of prosecution by stating that he did not know the behaviour of the accused persons with the Baby Devi who died of hanging. This witness was a tempo (auto rickshaw) driver and clearly stated after she died of hanging, he had taken the deceased to the hospital by his tempo along with the her husband appellant no.2 Subodh Kumar Pandey who had also accompanied her (deceased) to the hospital and thus the version of the mother of the deceased (P.W.6) is wholly substantiated when P.W.6 stated that she committed suicide by hanging herself. 21. PW – 12 Shiv Charan Gope is the neighbour and when he stated that the accused persons were having a cordial relationship with the deceased and he did not know as how did she die, he has been declared hostile. This witness was cross-examined by learned APP but nothing could be brought forth to corroborate the case of the prosecution. 22. PW – 13 Ghanshyam Pd. has been tendered for the reasons best known to the prosecution. 23. In the light of the aforesaid analysis of the testimonies of witnesses examined on behalf of the prosecution, it is found that the learned trial court has committed gross error in the appreciation of the evidences in a holistic manner. The material witnesses examined on behalf of the prosecution including the son (PW-4) Vishal Kumar Pandey, father (PW – 7) Sita Ram Singh, brother (PW – 8) Krishna Mohan Singh and the mother (PW – 6) Smt. Indra Devi of the victimwife of appellant No.2 Subodh Kumar Pandey (Husband) have been declared hostile while speaking the truth. This is a fundamental principle of the criminal jurisprudence that in a criminal trial, accused is not under obligation at all to produce evidence in support of his defence barring a few cases where there is a statutory presumption in favour of the prosecution and for the purpose of proving his version, he can rely on the admission made by the prosecution witnesses or on the documents filed by the prosecution. The court below in the present case was not justified in drawing an adverse inference against the accused for not producing evidence in support of his defence. The prosecution cannot derive any strength or support from the weakness of the defence case. The court below in the present case was not justified in drawing an adverse inference against the accused for not producing evidence in support of his defence. The prosecution cannot derive any strength or support from the weakness of the defence case. The Court below has erred in basing conviction of the appellants on the testimony of mainly PW – 6 ignoring the important admissions made in favour of the accused by other material prosecution witnesses, some of whom were declared hostile. It is a discretion of the court to permit a witness to be cross-examined by a party calling him. The said judicial discretion must be exercised judiciously and properly in the interest of justice. The Court will not normally allow a party to cross-examine his own witness and declare the same hostile unless the court is satisfied that the statement of the witness indicates an element of hostility or that he has resiled from a material statement which he made before an earlier authority. Merely because in a trial court a witness in an unguarded moment speaks the truth, which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine his own witnesses cannot be allowed. The contingency of permitting the cross-examination of the witness by the party calling him is an extra ordinary phenomenon and permission should be given only in special cases. In the present case, the trial court wrongly exercised its discretion in permitting the prosecution to cross-examine its own witnesses. It is a well settled principle of law that merely because a witness is declared hostile, it does not make him unreliable so as to exclude his evidence from consideration altogether. 24. In the present case, this Court finds that the defence version was rendered probable by the testimony of the witnesses as well as the documents. In this view of the matter, PW – 6 Smt. Indra Devi (mother of the deceased) specifically and very pointedly stated that the deceased was never tortured or harassed for want of demand of dowry and in para 17 she disclosed the reason of the death of her daughter that her daughter Baby wanted to live separately along with her husband, but her husband did not agree and therefore, because of depression, she committed suicide. In para 16 of her deposition in the cross-examination she stated in unequivocal words that there had never been demand of any kind of money or vehicle in her presence nor her daughter Baby (deceased) was assaulted by them and thus the entire case of prosecution that these appellants were causing torture and cruelty by assaulting her for demand of dowry is totally demolished by the statement of the mother of the deceased herself. Thus, it is found that the learned trial court erred in holding the guilt of the accused persons on the depositions of mainly P.W.6 (mother) without appreciating her testimonies in an impartial manner as discussed above. Similarly from the testimonies of son (P.W.4), father (P.W.7) and brother (P.W.8) of the deceased as discussed and analysed meticulously in the forgoing paragraphs, the prosecution has miserably failed to substantiate the allegations against the accused appellants and the learned trial court has committed a gross error in appreciation of the evidences and testimonies of the witnesses examined on behalf of the prosecution. 25. Having taken into consideration the aforesaid findings, it is well founded that the learned trial court has erred in passing the impugned judgment of conviction and order of sentence on the basis of the aforesaid depositions, particularly the depositions of PW – 4, PW – 6, PW – 7 and PW – 8, who are son, mother, father and brother of the deceased respectively and therefore in the eyes of law, the impugned judgment of conviction and order of sentence is not tenable in the eyes of law and fit to be set-aside. 26. In the backdrop, the impugned Judgment of Conviction dated 9th March 2005 and order of sentence dated 14th March 2005 passed by learned Additional District & Sessions Judge, FTC No. IX, Jamshedpur, in S.T. No.132 of 2004, against the appellants is hereby set-aside. 27. This appeal is allowed. 28. The appellants are acquitted of the charges levelled against them and since they are on bail, they are discharged from the liability of bail bonds. 29. Let the Lower Court Record be sent back forthwith to the concerned court below with a copy of this judgement.