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2024 DIGILAW 190 (JHR)

Balram Pandey v. State of Jharkhand

2024-02-21

NAVNEET KUMAR

body2024
JUDGMENT : HON’BLE MR. JUSTICE NAVNEET KUMAR Heard learned counsel appearing on behalf of the appellants and the learned counsel appearing on behalf of the State. 2. This Criminal Appeal is directed against the judgement of conviction dated 23.02.2017 and order of sentence dated 02.03.2017 passed by the Court of learned Additional Sessions Judge-F.T.C.-XVII, Dhanbad in S.T. Case No. 341 of 2014 arising out of Topchanchi P.S. Case No. 33 of 2014, corresponding to G.R. Case No.1594 of 2014, whereby and where under the appellants have been convicted for the offence punishable under Sections 304 B/ 34 of the Indian Penal Code and sentenced to undergo simple imprisonment for 7 years and the period of detention already undergone by the appellants have been directed to be set off against the sentence of imprisonment. 3. The prosecution story arose on the written report (Exhibit-3) by Umesh Pandey PW-5 addressed to the Officer-in charge of Topchanchi P.S. on 18.04.2014. The prosecution story in short is as under- The informant’s niece Saroj Devi was married with Mithilesh Kumar Pandy (appellant No. 2) who was the elder son of Balram Pandey in the month of May, 2012 and after marriage they were torturing his niece and they were demanding cash and golden chain from her and also used to threaten her that if she will not bring cash and chain, they would kill her by burning and he had heard this thing several times. Recently both Saroj Devi and Mithilesh went to meet with parents and in-laws respectively where Mithilesh Pandey told to Saroj to see her parents for the last time and said that she would not be able to see them anymore. Then on 18.04.2014 at 10:15 A.M. all of a sudden, a phone call came to him from Balram Pandey (appellant No.1) intimating him to come soon at Hirapur and for the second time on phone call Mithilesh Pandey said that Saroj had burnt and she is no more alive. In a hurry they hired a vehicle and reached Hirapur and saw that there was lot of crowd and half burnt dead body of Saroj was kept on the cot. 4. On the basis of the aforesaid written report, Topchanchi P.S. Case No. 33 of 2014 dated 18.04.2014 was lodged under section 304-B/34 of the Indian Penal Code against the accused persons. 4. On the basis of the aforesaid written report, Topchanchi P.S. Case No. 33 of 2014 dated 18.04.2014 was lodged under section 304-B/34 of the Indian Penal Code against the accused persons. After investigation the I.O. submitted charge-sheet No. 53/2014 dated 30.06.2014 under section 304-B/34 of the Indian Penal Code against the accused persons and on the basis of charge-sheet cognizance of the offence under section 304-B/34 of the Indian Penal Code was taken against the accused persons and the case was committed to the Court of Session. The charge framed on 10.09.2014 by Additional Sessions Judge-VI, FTC Dhanbad against the accused persons under Sections 304-B/34 of the Indian Penal Code and was read over and explained to the accused persons in Hindi, to which they denied, pleaded not guilty and claimed to be tried. 5. The learned Trial Court, after conducting the full-fledged trial passed the impugned judgement of conviction and order of sentence which is under challenge in this appeal. Arguments advanced on behalf of the appellants- 6. Learned counsel appearing on behalf of the appellants has submitted that the impugned judgement of conviction and order of sentence is bad in law in view of the fact that the pre-requisites which constitute the offence under Section 304-B i.e. dowry death is that the deceased was subjected to cruelty or harassment by the accused persons soon before the death in connection with any demand of dowry but from the entire evidence adduced on behalf of the prosecution this fact is not corroborated as to whether the deceased was subjected to torture and cruelty in connection with any demand for dowry as evident from the deposition of witnesses who have been examined on behalf of the prosecution particularly P.W.-1, Ganesh Pandey and P.W.-5, Umesh Pandey (Informant). It has further been pointed out that appellant No. 1 is the father-in-law and appellant No. 2 is the husband of the deceased and both of them are involved in their profession of doing ritual worship for religious purposes (puja-path) which is also admitted by P.W.-5, Umesh Pandey and it has also come in the evidence that it was the accused persons who had called the police that the deceased died in her matrimonial house establishing the bonafide and innocence of appellants. 7. 7. Learned counsel appearing on behalf of the appellants has further submitted that it has also come in the evidence that the deceased was issueless and she was not very happy with the conjugal life and she was suffering from some mental trauma for want of child and that is why she has committed suicide but the learned Trial Court did not appreciate all these facts and blindly presuming that since the death has taken place within seven years of marriage and therefore, both the appellants have been convicted under Section 304-B/34 of the Indian Penal Code without any substantive proof for the demand of dowry causing torture and cruelty soon before the death. 8. Learned counsel has submitted that it is evident from the prosecution evidences that the parents of the deceased have not been examined nor any fact has been brought on record as to why her parents has not been examined and only the relatives of the deceased have been examined right from instituting of the F.I.R. to leading the evidence on the side of the prosecution. 9. Learned counsel appearing on behalf of the appellants has also submitted that the doctor who had conducted the post-mortem report did not find any external injury on the body of the deceased and therefore, the case of suicide cannot be ruled out as the deceased has committed suicide by setting herself on fire and also by consuming pesticide in view of the fact that if she have been forcibly administered the pesticide some injury must have been found by the doctor because of natural resistance from the deceased but the doctor clearly opined that there was no external anti-mortem injury and therefore, the benefit of doubt in absence of causing torture and cruelty for the demand of dowry soon before death goes to the appellants and hence the impugned judgement of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State- 10. Arguments advanced on behalf of the State- 10. On the other hand, the learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellants and submitted that the learned Trial Court has rightly convicted the appellants for the offence punishable under Section 304-B / 34 of the Indian Penal Code with the aid of Section 113-B of the Indian Evidence Act because it is admitted case of the prosecution that the deceased-wife of the appellant No. 2 had died within seven years of the marriage. 11. Further, it has also been submitted that it has also come into evidence from the post-mortem report and the F.S.L. report that the deceased was burnt and she was administered pesticide which is evident from Exhibit-1 which is the post-mortem report of the deceased and Exhibit-2 which is the F.S.L. report. 12. Learned A.P.P. appearing on behalf of the State did not deny the fact that neither the parents of the deceased have been examined nor any complaint or information was given to the police for causing torture and cruelty for want of fulfilment of dowry when it is alleged that after the marriage the deceased was subjected to torture and cruelty for the demand of cash, jewellery and motor-bike and therefor there is no illegality in the impugned judgement of conviction and order of sentence and there is no legal point to interference in the impugned judgement of conviction and order of sentence. Appraisal & Findings 13. Having heard the parties, perused the records of this case including the Lower Court Records. 14. In order to prove its case, the prosecution has been able to examine altogether seven witnesses which are as under: P.W.-1 Ganesh Pandey P.W.-2 Dev Nandan Pandey P.W.-3 Virendra Kumar Pandey P.W.-4 Dr. Shailendra Kumar P.W.-5 Umesh Pandey P.W.-6 Sunil Kumar Pandey P.W.-7 Dharam Deo Pandey Apart from the oral evidences the prosecution has also adduced some documentary evidences which are as under: Exhibit-1 Postmortem report of deceased Exhibit-2 Signature of R.S.Singh on letter No. S.F.S.L. No. 446/2014 Exhibit-3 written report Exhibit-3/1 Endorsement on written report Exhibit-4 Formal F.I.R. Exhibit-5 Carbon copy of inquest report On behalf of accused persons in defence no any witness has been examined nor any evidence has been adduced. 15. 15. It is found from the evidences adduced on behalf of the prosecution that appellant No. 2 is the husband and appellant No. 1 is the father-in-law of the deceased who is said to have died after two years of the marriage. It has come into the evidence that the appellant No. 2 had solemnised the marriage with the deceased in the year 2012 and just after the marriage the in-laws people including the appellants were torturing the deceased and they were demanding cash of Rs.50,000/-, golden chain and motorcycle as evident from the deposition of P.W.-1, Ganesh Pandey and due to non-fulfilment of the said demand they were committing Marpeet (assault) with the deceased but there is nothing on the record that any complaint or report has been given either by the deceased or by her family members about causing cruelty or harassment for want of fulfilment of demand of dowry of cash of Rupees 50,000/-, golden chain or motorcycle when the said demand is said to have started just after the marriage i.e. in the year 2012 itself and this occurrence has taken place in the year 2014. The aforesaid facts vis a vis the evidences adduced on behalf of the prosecution are appreciated in the light of rulings of the Hon’ble Supreme Court as enunciated in Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388 wherein the Hon’ble Supreme Court has mentioned the following ingredients of section 304-B of IPC: 10. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv)Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 16. Further, it is found that P.W.-1, Ganesh Pandey has stated that eight days prior to the incident appellant No. 2, Mithilesh Pandey @ Mithalesh Kr. Pandey and the deceased had come to the house of Umesh Pandey i.e. P.W.-5, who was the uncle of the deceased and where Mithilesh Pandey @ Mithalesh Kr. 16. Further, it is found that P.W.-1, Ganesh Pandey has stated that eight days prior to the incident appellant No. 2, Mithilesh Pandey @ Mithalesh Kr. Pandey and the deceased had come to the house of Umesh Pandey i.e. P.W.-5, who was the uncle of the deceased and where Mithilesh Pandey @ Mithalesh Kr. Pandey, (appellant No. 2) had demanded the money from him and stated that Saroj had come to her Maika for the last time and after that she would not come there but despite this statement given by appellant No. 2, neither P.W.-1 nor P.W.-5 took any steps for reporting the matter either to the police or any appropriate place or any complaint before the Court, as evident from para 9 of the deposition of PW-1. 17. Further it has also been found that this version of P.W.-1 has not been substantiated from the statements of P.W.-5 as evident from the testimonies of P.W.-5. Nowhere it is mentioned in the examination-in-chief of PW-5 that the appellant and the deceased had come to his house just before eight days prior to the incident and Mithilesh Pandey @ Mithalesh Kr. Pandey, (appellant No. 2) had threatened that Saroj had come for the last time and thus the version of P.W.-1, gets falsified and thus he is not a trustworthy witness. 18. From the version of P.W.-2, Dev Nandan Pandey who is the relatives of the deceased had given an omnibus statement that after the marriage two years prior to her death she had been residing in her Sasural where the appellants were causing Marpeet with her and abusing her for the non-fulfilment of the demand of dowry and this witness had stated in para 8 that it was appellant No. 2 who had informed about the incident and his this version establishes the fact that appellant No. 2 himself had intimated about the incident to the relatives of the deceased and P.W.-1 has also stated the same version that appellant No. 2, Mithilesh Pandey @ Mithalesh Kr. Pandey, who had intimated about the incident to P.W.-1 also. Further P.W.-2 in para-9 has stated that when he went to the place of occurrence, he came to know by the wife of the Appellant No. 1 Balram Pandey that appellant No. 1 and his son were out from their house when the deceased set herself on fire. 19. Pandey, who had intimated about the incident to P.W.-1 also. Further P.W.-2 in para-9 has stated that when he went to the place of occurrence, he came to know by the wife of the Appellant No. 1 Balram Pandey that appellant No. 1 and his son were out from their house when the deceased set herself on fire. 19. P.W.-3 Virendra Kumar Pandey is the brother-in-law of the deceased and he has also stated that she was married in the year 2012 and after the marriage she was subjected to torture and cruelty for want of fulfilment of demand of dowry but there was no report to that effect anywhere. Further, it has also been stated by this witness that on the date of incident i.e. on 18.04.2014 he came to know this fact from his father-in-law, Umesh Pandey, who is P.W.-5. Thus, from the version of this witness it is also found that there is no concrete evidence on causing any kind of cruelty or harassment by the appellants in connection with any demand of dowry soon before her death. 20. P.W.-4, Dr. Shailendra Kumar is the doctor who had examined the deceased on 19.04.2014 and did not find any external injury on the body of the deceased and found that the deceased had died because of consuming pesticide i.e. Organo Phosphorous Compound, as evident from the F.S.L. Report which has been marked as Exhibit-2 and the post mortem report which has been marked as Exhibit-1. It is also found from the deposition of P.W.-4, Dr. Shailendra Kumar that he has found the burn injuries and from the F.S.L. report the pesticide was also found from her stomach but the cause of death has not been specifically opined by the doctor and as such the report is vague and not clear. 21. PW-5 Umesh Pandey is the informant of this case. In his cross-examination he has stated that after the marriage he used to go the Sasural of Saroj i.e. deceased. He has also accepted in para 10 that he reached at the place of occurrence after receiving information from accused/appellant Mithilesh Pandey. In para 8 of his deposition, he has stated that he had never made complaint about the said Marpeet by accused/appellant. He has also accepted in para 10 that he reached at the place of occurrence after receiving information from accused/appellant Mithilesh Pandey. In para 8 of his deposition, he has stated that he had never made complaint about the said Marpeet by accused/appellant. This witness PW-5 has falsified the version of PW-1 who had stated that the husband (appellant No.2) had gone along with the deceased to the house of PW-5 (uncle of the deceased) where the husband (appellant No.2) had told about her last visit to her Maika (uncle’s house) as discussed in foregoing paragraphs. 22. P.W.-6, Sunil Kumar Pandey, is the witness who has been examined on behalf of the prosecution who is another uncle of the deceased and he also stated the sweeping allegations that she was subjected to torture and cruelty for want of demand of dowry soon after the marriage of the deceased but no such any complaint has been instituted and thus this witness has also not narrated any particular incident with respect to substantiate the cruelty and harassment by the appellants soon before her death and no specific incidence has been stated by this witnesses also. 23. P.W.-7, Dharam Deo Pandey, is the I.O. of this case and he has formally proved the endorsement on written report of the F.I.R., Exhibit-3/1 and formal F.I.R. as Exhibit-4, and also the inquest report which is Exhibit-5. 24. Recapitulating, the testimonies of the witnesses examined on behalf of the prosecution and also the other evidences including the post mortem report of the deceased and the F.S.L. report it is found that the deceased being the wife of appellant No. 2, had died because of consuming Organo Phosphorous Compound i.e. pesticide although the evidence has also come that she was also burnt at the time of the death but the cause of death has been opined due to consumption of pesticide. No external injury has been found. Further, it is also evident that although there was charge of causing torture and cruelty for fulfilment of the demand of dowry in the F.I.R. but no specific incident has been stated by anyone of the witnesses by which it can substantiated that the appellants have ever caused cruelty or harassment in connection with any demand of dowry. Further, it is also evident that although there was charge of causing torture and cruelty for fulfilment of the demand of dowry in the F.I.R. but no specific incident has been stated by anyone of the witnesses by which it can substantiated that the appellants have ever caused cruelty or harassment in connection with any demand of dowry. Rather it has come in the evidence that the deceased was married in the year 2012 and after her marriage there was demand of Rs.50,000/-, golden chain and motorcycle but no such complaint had been instituted anywhere and her death occurred in the year 2014 and thus a doubt is created about the demand of dowry and for the non-fulfilment of demand of dowry the appellants had been causing torture and cruelty to the deceased. 25. Further, it is also found from the version of P.W.-2, Dev Nandan Pandey that everything was paid and nothing was to be paid which means that there was no demand of dowry and it was not a case of causing any kind of cruelty for want of fulfilment of demand of dowry. Further, it has also come into the evidence that there are major contradictions between the version of P.W.-1, Ganesh Pandey and P.W.-5, Umesh Pandey who is the informant of this case. P.W.-1, Ganesh Pandey has stated that eight days prior to the incident Mithilesh Pandey @ Mithalesh Kr. Pandey, (appellant No. 2) and his deceased wife had gone to the house of P.W.-5- Umesh Pandey (uncle of the deceased) where Mithilesh Pandey @ Mithalesh Kr. Pandey, (appellant No. 2) had demanded money from him and stated that the deceased Saroj had come to her Maika for the last time and after that she would not come there but this version has not been stated by P.W.-5, in his deposition and thus the version of P.W.-1, Ganesh Pandey that the appellants were causing cruelty and harassment soon before the death of the deceased in connection with any demand of dowry is a false allegation. 26. 26. Further, it is also evident from the testimonies of P.W.-5 that the deceased has no issue and therefore, it is found that the deceased was not very happy with her conjugal life and therefore the defence of the appellants that because of the stress she had consumed the pesticide and put herself to fire cannot be ruled out in the facts and circumstances of this case and therefore, the mandate of one of the important ingredients of constituting the offence punishable under Section 304-B of the Indian Penal Code i.e. soon before the death the deceased was subjected to cruelty or harassment by the appellants in connection with any demand of dowry is not established and proved and hence it is found that the presumption under Section 113-B of the Indian Evidence Act does not apply to the facts of the present case in view of the aforesaid evidences and thus the learned Trial Court has committed gross error in the appreciation of evidences vis-à-vis the mandate of provisions of Section 304-B of the Indian Penal Code in the right perspective. 27. In the result the judgement of conviction dated 23.02.2017 and order of sentence dated 02.03.2017 passed by the Court of learned Additional Sessions Judge-F.T.C.-XVII, Dhanbad in S.T. Case No. 341 of 2014, is hereby set aside. 28. The appellants are acquitted from the charges levelled against them. Since the appellants are on bail and therefore, they are discharged from the liabilities of bail bonds. 29. Accordingly, this appeal is allowed, 30. Let the Lower Court Records and a copy of this judgement be also transmitted to the learned Court below.