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2023 DIGILAW 508 (JHR)

Drigpal Rajak v. State of Jharkhand

2023-04-13

DEEPAK ROSHAN

body2023
JUDGMENT : Learned counsel for the appellants submits that pursuant to the order of this Court a report has been received which transpires that the appellant no.2 namely-Murat Baitha has died. 2. In view of the aforesaid fact, the instant appeal is dismissed as abated against appellant no.2- Murat Baitha. 3. This appeal is directed against the judgment of conviction and order of sentence dated 11.09.2003 passed by the learned Additional Sessions Judge, (Fast Track court No. 1), Chatra in Sessions Trial No. 143 of 1994, whereby the appellants were convicted and sentenced to undergo R.I. for 7 years under section 304-B read with 34 of the IPC. Further sentenced to undergo R.I. for 3 years each for the charge under section 201 IPC and further sentenced to undergo R.I. for 2 years each for the charge under section 498-A IPC and all the sentences were ordered to run concurrently. 4. The prosecution case in short is that informant married his daughter Prabha Devi with Drigpal Rajak in the year 1987 at village Soki. After her marriage she was tortured by in-laws by saying that her husband will perform second marriage. On occasion of Karma Puja, informant went to bring his daughter but the appellants refused to send her. On 6.10.1993 he got information that his daughter died and dead body of deceased was disposed without informing her parents. On enquiry he got to know that his daughter fell from stair and during treatment she died. 5. Learned counsel for the appellants questioned the impugned judgment on following grounds. (i) There is no averment, whatsoever, about the demand of dowry in the F.I.R. (ii) Even in the deposition of the main witness, the demand of Cycle and Swing Machine is just after the marriage. Though there is a vague allegation that four months before the marriage there was a demand of cycle which comes from examination in chief of the P.W.3 who is the informant thus it is admitted that no demand was made just before the marriage, which is necessary for conviction u/s 304B of IPC. (iii) The victim lady was admittedly pregnant and her death was due to cardiac failure. In this regard the deposition of D.W.-1- Doctor, who is the independent witness gave a clear verdict in his examination in chief by submitting that the lady was admitted in the hospital for treatment and she was pregnant. (iii) The victim lady was admittedly pregnant and her death was due to cardiac failure. In this regard the deposition of D.W.-1- Doctor, who is the independent witness gave a clear verdict in his examination in chief by submitting that the lady was admitted in the hospital for treatment and she was pregnant. (iv) The investigating officer has not been examined in this case so as to corroborate the allegation of the informant. (v) No independent witness has been examined so as to corroborate the allegation of dowry even four months before the date of death. (vi) Though, the appellants have been convicted also under section 201 IPC, but it has been admitted by the informant himself that the appellant informed the (Naihar) about the death of the victim, but since the informant was out of station, as such he could not come quickly. Since the information was duly informed to the appellant there is no question of conviction under section 201 IPC. (vii) Last but not the least; the improvisation of the deposition by the informant about the dowry even four months before vis a vis that in the F.I.R. should not be treated as trustworthy because in the F.I.R. the informant has given entirely different reason for exploitation of the wife. 6. Learned Addl. P.P. opposes the prayer of the petitioner for acquittal and submits that no error has been committed by the learned trial court, as such no interference is required. 7. Having heard learned counsel for the parties and after going through the judgment passed by the learned trial court and the LCR it appears that the date of death of the victim is 06.10.1993 and the F.I.R. was lodged on 13.10.1993. In the fardbeyan, the informant has clearly stated that his daughter said to him that his son-in-law wanted to marry some other girl and only for that reason she was being ill-treated and for that a panchayti was also held. From bare perusal of the fardbeyan it is clear that there was not even a single whisper about the demand of dowry. From bare perusal of the fardbeyan it is clear that there was not even a single whisper about the demand of dowry. Section 304 B IPC clearly stipulates that where the death of a women is caused within 7 years and it is shown that soon before her death she was subjected to cruelty by her husband or any family members for or in connection with any demand of dowry; thus one of the most important ingredient under section 304 B IPC is demand of dowry and in the very first information report of the informant there is no whisper about demand of dowry; rather the allegation was that his son in law wanted to marry some other girl which has been informed by the daughter. Admittedly in the deposition, the informant-P.W.3 has made a vague allegation of dowry i.e., demand of cycle and 10 thousand of rupees. By critically scrutinizing the examination in chief of P.W.3 it emerges that just after the marriage which was solemnized in the year 1987, the appellant and their family members made a demand for cycle and swing machine and rupees 10 thousand, thereafter, a Panchayati was held; as such since the date of death is in 1993; this cannot be the ground that the demand was made soon before the marriage. Moreover, even if the vague allegation by P.W.3 is accepted, it says that four months before his daughter informed me about the demand of cycle. Thus, on the one hand, there was no whisper about the demand of dowry in the fardbeyan and on the other hand, even in the deposition there is no whisper that just before the marriage there was any demand of dowry, as such the conviction appears to be bad in law under section 304B & 498A IPC. 8. At this stage it is very relevant to mention that the learned trial court in paragraph 23 has dealt with the deposition of defense witnesses and it gave much stress upon the deposition of D.W. No.2 who was assistant of D.W.1-Doctor that the victim fell from wooden ladder, but he did not gave any finding about the statement of DW-1, the Doctor, who has categorically deposed that the victim lady was admitted to the hospital and she was pregnant and was also patient of eclampsia and she died due to cardiac failure. Moreover, even falling down from ladder might be an accident. As aforesaid, the main doctor in examination in chief has categorically deposed that on 05.10.1993 the victim was admitted to the hospital and she was pregnant and she was also patient of eclampsia and she died on 06.10.1993 at about 2 p.m. and he issued the death certificate. In view of the aforesaid discussion, this court holds that the conviction under section 304 B IPC is not sustainable in the instant case, as such the conviction under section 304 B IPC is quashed and set aside. 9. For the same reason since no specific allegation has been shown by the prosecution witness with regard to demand of dowry, even conviction under section 498A IPC is not sustainable. 10. So far as conviction under section 201 IPC is concerned; the learned trial court has committed an error in ignoring the cross examination of the informant himself who has admitted before the court that the fact of death was duly informed at his residence and he was out of station. At this stage it is pertinent to mention here that no dead body could have kept awaiting any person for more than 24 hours and admittedly the appellant came after four days. In a normal circumstance after any death, the body is to be buried/cremated immediately in accordance with local ritual. 11. Learned trial court has further erred in ignoring the fact that no I.O has been examined in instant case so as to corroborate the allegation of dowry as well as place of occurrence. Even non-examination of any independent witness also goes against the prosecution. 12. Before parting, it is pertinent to indicate that from para-24 of the impugned judgment it appears that the learned trial court has also given reference of one letter written by the deceased which is undated. Even non-examination of any independent witness also goes against the prosecution. 12. Before parting, it is pertinent to indicate that from para-24 of the impugned judgment it appears that the learned trial court has also given reference of one letter written by the deceased which is undated. In this regard, it is held that on the one hand, this letter cannot be relied upon for the reason that the writing of that letter has not been proved, inasmuch as, the same was never sent to any Handwriting Expert to enquire its veracity; and on the other hand, the trial court itself stated that the deceased has complained about her ill-treatment through this letter and thereafter a Panchayati was also held, so even accepting the said letter, it can be easily said that it was of no use as it might have been written just after the marriage and not before the death of the deceased. 13. In view of the aforesaid discussions, the impugned judgment requires interference. Consequently, the judgments of conviction and sentence dated 11.09.2003 passed by learned trial court are, hereby, quashed and set aside. Accordingly, instant appeal stands allowed. 14. The appellants shall be discharged from the liabilities of their bail bonds. 15. Let a copy of this order be communicated to the courts below. 16. Let the lower court record be sent to the court concerned forthwith.