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2025 DIGILAW 999 (JHR)

Sakli Devi W/o Khoso Hazra v. State of Jharkhand

2025-04-03

PRADEEP KUMAR SRIVASTAVA

body2025
JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard learned counsel for the parties. 2. The present appeal is directed against the judgment of conviction and order of sentence dated 30.01.2006 passed by learned Additional Sessions Judge, Fast Track Court-9, Giridih in Sessions Trial No. No. 33 of 1992, whereby and whereunder the appellant has been held guilty for the offence under Sections 498A, 304B and 201/34 of the I.P.C. and sentenced to undergo R.I. of three years and a fine of Rs. 1,000/- for the offence under Section 498A of the I.P.C. with default stipulation and further sentenced to undergo R.I. for seven years for the offence under Section 304B of the I.P.C. and further sentenced to undergo R.I. for three years for the offence under Section 201/34 of the I.P.C. All the sentences were directed to run concurrently. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal is that the informant, Baldeo Hazra, who is the brother of the deceased had lodged FIR stating therein that the deceased Mina Devi was married with Indradeo Hazara according to Hindu rites and rituals in the year 1987. Dowry and gifts were given to the brother- in-law, Indradeo Hazara, but he was not satisfied. Indradeo Hazara (husband), mother-in-law, father-in- law and nanad (sister-in-law) of the deceased used to torture the deceased in various ways and due to which, the deceased was often sent back to her naihar (parental house). The deceased, after her marriage remained in her matrimonial home for six months and thereafter, she was sent to her naihar by her husband after being assaulted by him. After four months, the father-in-law along with husband of the deceased went to the naihar of the deceased for ‘Bidai’, then the informant sent the deceased back with them on the day of “Vijaya Dashmi”. From the date when the deceased had gone to her matrimonial home, the demand and torture were still persistent.On 20.10.1989 at about 6:30 PM the mother-in-law (appellant) and the cousin mother-in-law of the deceased came to the house of the informant and said that there was quarrel in the house and in consequence thereof, she has left the house and gone somewhere. On this information, the informant along with his family members started searching for her, but they could not find her. On this information, the informant along with his family members started searching for her, but they could not find her. Again, the informant returned to the matrimonial house of the deceased and made a thorough search for her, but he could not find any trace of her. At about 8:00 PM in the night, when the informant reached near the house of Banshi Hazra and made enquiries from his family members then he was told by the mother of Banghi Hazara, Jamuna Hazara and Prayag Hazara that they have heard a sound of “Jhap” in the well. Thereafter, the informant flashed a torch in the well but nothing was seen thereafter he searched for whole of the night. Again, in the next morning, he came to the well and put a Jhaggar in the well whereupon he was resisted by the sister-in-law of the deceased namely Malwa and Banshi Hazra, but the informant was insisted on doing so and in presence of Sukhdeo Rai, Basudeo Hazra, Prakash Hazra, Banshi Hazra, he put the Jhaggar in the well which brought the dead body of the deceased on the surface of the water. He left the dead body in the well and reported the matter to the police. 4. Accordingly, on the basis of written report, Jamua P.S. Case No. 195 of 1989 was registered for the offences under Sections 498A, 304B and 201/34 of the I.P.C. and 3/4 of the Dowry Prohibition Act against the accused Indradeo Hazra, Sakli Devi (mother-in-law) and Malwa Devi (sister-in-law). 5. The police, after investigation, has submitted charge sheet against the accused Indradeo Hazra, Sakli Devi showing accused Malwa Devi as absconder under Section 304B, 201/34 of the I.P.C. The learned Chief Judicial Magistrate, Giridih took cognizance of the offences and committed the case to the court of Sessions, where Sessions Trial No. 33 of 1992 was registered. Thereafter, on 03.09.1997, charges have been framed against Indradeo Hazra and Sakli Devi (appellant) for the aforesaid offences, but the case of Indradeo Hazra has been separated from the case of Sakli Devi (appellant) and the case of Indradeo Hazra has been sent in the court of learned ACJM, Giridih for assessment of his age, where he was found Juvenile as such the case of accused Indradeo Hazra was split up and sent to Juvenile Court (ACJM, Hazaribagh). The case of accused Malwa Devi has been also separated due to her absconding. 6. In course of trial, the prosecution has examined altogether 11 witnesses and also adduced following documentary evidence:- Exhibit-1 : Written Report. Exhibit-2 : Signature on carbon copy of Inquest Report. Exhibit-2/1 : Inquest Report. Exhibit-3 : Post-mortem Report. Exhibit-4 : Formal F.I.R. 7. The case of defence is that appellant is innocent person and has committed no offence at all. Accused person was also examined under Section 313 of the Cr.P.C. in which she did not consent to the prosecution version appearing against her.However, no oral or documentary evidence has been adduced by the defence. 8. The learned trial court, after considering the oral as well as documentary evidence available on record, has convicted and sentenced her as stated above. 9. Learned counsel for the appellant assailing the impugned judgment and order has submitted that there are general and omnibus allegation against the appellant. The appellant happens to be mother-in-law of the deceased and at present, she is aged about 83 years. She had no concern with the family affairs between the deceased and her husband and she had no reason to demand dowry for her purpose. The deceased had died by drowning herself in the well due to quarrelling and when she was traceless then immediately on the same day, the appellant herself informed at the parental house of the deceased, which is evident from the FIR itself and hence the conduct of the appellant shows that she has got no complicity in the commission of crime of murder and concealing the dead body of the deceased who happens to be her daughter-in-law. There is no iota of legal evidence against the appellant to substantiate the charge under Section 304-B, 201 & 498A of the I.P.C. against her. There is no any eye-witness in this case and the prosecution case depends only on circumstances. The I.O. of the case has also not been examined, which prejudiced the case of the appellant. The impugned judgment and order of conviction and sentence of the appellant is totally based on irrelevant and hypothetical evidence of the witnesses. The judgment impugned suffers from serious lacuna since there is no eye witness but mainly on the basis of applying the statutory command as under Section 113(B) of the Evidence Act, the judgment of conviction has been passed. The judgment impugned suffers from serious lacuna since there is no eye witness but mainly on the basis of applying the statutory command as under Section 113(B) of the Evidence Act, the judgment of conviction has been passed. Hence, appellant deserve to be exonerated from the charge levelled against her setting aside the impugned judgment and order passed by learned trial court. 10. On the other hand, learned APP has defended the impugned judgment and order on merits and submitted that there is no illegality or infirmity in the impugned judgment, rather the learned trial court has very wisely and aptly considered all the aspects of the case and material evidence adduced by the prosecution and has arrived at right conclusion. There is no reason for interference in the impugned judgment and order. This appeal has no merits and is fit to be dismissed. 11. I have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both side. 12. It appears that altogether eleven witnesses have been examined in this case by the prosecution: P.W.-1, Smt. Kalawati Devi is the mother of the deceased. She has deposed that her daughter was married with Indradeo Hazara ten years ago and after the marriage, her daughter went to her in-laws house which is situated at same village Lataki, where her mother-in-law, nanad and husband used to torture her and asked her to bring Rs. 5,000/- from the house of her parents. On non-fulfillment of demand, the in-laws including the appellant used to assault and torture her in various ways. The deceased remained in sasural for about three months and thereafter, her in-laws drove her out from her sasural. Thereafter, the deceased remained in her naihar for about six months. In the year of incident, the deceased was again taken back to her sasural by her father-in-law. This witness has further deposed that after 15 days of going to her sasural, her cousin mother-in-law came to her house and asked that deceased was beaten by her in-laws and she was driven out from her sasural and she was not at her sasural, thereafter, her son namely, Baldeo Hazra and son-in- law Basudeo Hazra and her husband went to search her but there was no trace of deceased. This witness has further deposed that on the next day, they again started to search and her son-in-law Basudeo Hazra put “Jhaggar” in the well of Banshi Hazra, which brought the dead body of her daughter Mina Devi. In cross-examination, this witness has deposed that at the time of marriage, the deceased was 16 years old and no panchayati was held for resolving the matter of torture and demand of dowry. She has denied the suggestion that the deceased was older in age in comparison to her husband Indradeo Hazra. P.W.-2, Basudeo Hazara is the brother-in-law (Bahanoi) of the deceased. This witness has deposed that 08 years ago, his father-in-law and brother-in- law (Baldeo Hazara) came to his house and said that deceased Mina Devi has gone anywhere. Thereafter, this witness and his father-in-law and younger brother-in-law went to the sasural of the deceased and enquired about the deceased, but they did not find any trace of her. Thereafter, they came near the house of Banshi Hazra and came to know that in night the wife of Banshi Hazra had heard the sound of “Jhaap” in the well and on suspicion this witness put Jhaggar in the well of Banshi Hazra then it brought the dead body of the deceased. P.W.-3, Baldeo Hazara is the informant and brother of the deceased. He has deposed that his sister (deceased) was married with Indradeo Hazra in the year 1987 and at the time of marriage, many articles were given to Indradeo Hazra, but he was not happy after getting the said articles and after three months of her marriage, the in-laws demanded Rs. 5,000/- from her as dowry and drove her out from her sasural and thereafter she remained in her naihar for about six months. This witness has further deposed that on the eve of Vijaya Dashmi, the father-in-law of the deceased came and took the deceased to her sasural, but the demand of dowry by the in-laws was continued. After 10 days of her Bidai, he along with his father were going to market, then they met with deceased on way where they were informed by the deceased that in- laws were torturing her and demanding Rs. 5,000/- as dowry thereafter he had promised to visit her in- laws house while returning from the market, but he could not go for some reason. 5,000/- as dowry thereafter he had promised to visit her in- laws house while returning from the market, but he could not go for some reason. In the evening, the mother-in-law (appellant) and cousin mother-in-law of the deceased came and said that the deceased had gone somewhere and there was no trace of her. Thereafter, this witness along with other family members went to the sasural of the deceased and enquired the matter, but no trace came out. This witness has further deposed that on the next day, they went to the well of Banshi Hazra and put the Jhaggar in the well which brought the dead body of the deceased. This witness has further deposed in para-5 that on the next day, he went to police station and had given a written report (Exhibit-1), which was written by one Ram Kishun Hazra. This witness has further deposed in para-7 that police had prepared the inquest report (Exhibit-2) in presence of Sakaldeo Hazra (P.W.10) and Shakti Hazra (P.W.-7). In cross-examination, this witness at para-12 has stated that everything in the written report was written by one Ram Kishun on his direction, but in para-13, he has deposed that the demand of Rs. 5,000/- by in-laws of deceased was not mentioned in the written report; in para-15, he has stated that he had not mentioned the fact in his written report that after 10 days of her Bidai, on Friday when he and his father were going to market, then they met with deceased who told them that her in-laws were demanding Rs. 5,000/- and torturing her thereafter and he promised to visit her on returning from market and in para-16, he had stated that he had singed on inquest report which was prepared on 22.10.1989 and he never signed on inquest report made on21.10.1989. P.W.-4, Bhikho Hazara is the father of the deceased. He has adopted the same version as that of informant in his chief. In cross-examination, at para-9, he has deposed that the accused persons were demanded Rs. 5,000/- from the deceased at the time of Durga Puja in the year 1987, which is the year of her marriage; in para- 10, he has deposed that he had said nothing to the police about the fact that on Friday, when he was going to market his daughter had said to him about the demand of Rs. 5,000/- from the deceased at the time of Durga Puja in the year 1987, which is the year of her marriage; in para- 10, he has deposed that he had said nothing to the police about the fact that on Friday, when he was going to market his daughter had said to him about the demand of Rs. 5,000/- by her in-laws; in para-11, this witness deposed that he had not said to the police that on Friday, the mother-in-law and chachia saas of the deceased had come and informed them about the missing of deceased. He has further deposed that there are numbers of well in the village. Due to suspicion, he has put the Jhaggar in the well as his daughter was being tortured due to demand of dowry. So, she might be killed and thrown into a well, but in para-18, he deposed that in the year of death of deceased he was working in the Koliary. P.W.-5, Kaushalaya Devi . She is the wife of the informant. She has deposed that the in-laws of the deceased used to demand Rs. 5,000/- from the deceased and this fact was told to her by the deceased, but she has failed to specify any date or time when she was told by the deceased nor she was able to specify the nature and time of harassment. In cross-examination, at para-7, she has deposed that a Panchayati was held to resolve the issue of demand of dowry and torture, but she could not tell the name of any Panches. She has also deposed in para-7 that the matter of demand of dowry was not reported to the Police. P.W.-6, Jangli Devi . She is Buwa of the deceased. She has deposed that on Friday in the morning, she had gone to the house of Indradeo Hazra, but assigns no reason for going there and there she saw the husband, mother-in-law and sister-in-law of the deceased quarrelling with the deceased over the demand of money. In cross-examination, in para-4, she has specifically deposed that no statement was recorded by the police and she has deposed first time in court. P.W.-7, Shakti Hazara . He is witness to the Inquest Report, but he does not specify the time, date and month of the inquest (Exhibit-2). In cross-examination, in para-4, she has specifically deposed that no statement was recorded by the police and she has deposed first time in court. P.W.-7, Shakti Hazara . He is witness to the Inquest Report, but he does not specify the time, date and month of the inquest (Exhibit-2). This witness has deposed that the dead body was taken out on Friday (20.10.1989) and the Inquest Report was prepared on which he put his sign without reading the contents of the inquest. In cross-examination, in para-4, this witness has clearly said that he had seen the dead body carefully and not found any sign of any injury on the dead body, in para-5, he has deposed that he does not know about any demand of dowry by in-laws from the deceased and if there were any demand of dowry then, he would have knowledge about it, in para-7, this witness has clearly deposed that the deceased was much older in age in comparison to her husband and she did not like to stay in her matrimonial home and always used to flee away therefrom to her naihar and her naihar people used to bring her back to her matrimonial home. P.W.-8, Jamuna Hazara . He is the independent witness. He has deposed that the dead body of the deceased was taken out from the well of Banshi Hazra and he had seen the dead body of the deceased. In cross-examination, he has clearly deposed that the deceased Mina Devi was never beaten or harassed by her in-laws for any demand of dowry. P.W.-9, Doctor L.P. Singh . He has conducted the post-mortem examination on the dead body of the deceased Mina Devi and found the followings: (A) She was average built, eyes closed, mouth closed, lips swollen. Tongue protruded whole body swollen oiling of the skin. Bully over the whole body. Faul, swelling rigor mortis absent. (B) On dis-section of neck, larynx and trachea were found compressed and its mucous membrane was found congested. There were fracture of right cornua of the hyoid bond. On dis-section of thorax-both the lungs were found congested, heart both sides empty. On dissection of the abdomen-liver, spleen, kidney were found congested. (C) In his opinion, death was due to asphyxia as a result of strangulation. (D) Time elapsed since death 48-72 hours. P.W.-10, Sakaldeo Hazara . He is also witness to the Inquest Report. On dis-section of thorax-both the lungs were found congested, heart both sides empty. On dissection of the abdomen-liver, spleen, kidney were found congested. (C) In his opinion, death was due to asphyxia as a result of strangulation. (D) Time elapsed since death 48-72 hours. P.W.-10, Sakaldeo Hazara . He is also witness to the Inquest Report. In cross-examination, he has deposed that there was detailed description of dead body of deceased Mina Devi in the inquest report. Mina Devi was aged about 19-20 years old at the time of her death. This witness has also deposed that he saw the swollen head of deceased Mina Devi and also abrasion below her knee. P.W.-11, Vijay Kumar Sinha . He has proved the formal FIR and endorsement of the Officer-in-Charge of the Police Station. 13. On the other hand, no oral or documentary evidence has been adduced by the defence. The case of defence is denial from occurrence and false implication. 14. To appreciate the arguments raised by the learned counsel for the parties, a perusal of Section 304B and 498A IPC and Section 113B of the Indian Evidence Act would be required. The same are extracted hereinbelow:- “ 304B. 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. 498-A. Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 498-A. Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation .—For the purposes of this section, “cruelty” means — (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 113B. Presumption as to dowry death .— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation .—For the purposes of this section, “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860).” 15. On the basis of aforesaid discussions of testimony of witnesses, the admitted fact is that the marriage of deceased was solemnized with Indradeo Hazara in the year 1987. The deceased was traceless on 20.10.1989 and on the same day, the appellant personally along with her gotani visited the maternal house of the deceased and has informed to the parents of the deceased that due to quarrel, the deceased has left the matrimonial house and did not return. The appellant, who is the mother-in-law of the deceased, upon whom the charges of the demand of dowry and on non-fulfillment of the same, commission of dowry death and hiding the dead body are made, has personally visited the matrimonial house of the deceased, is relevant as subsequent conduct under Section 8 of the Evidence Act, which has not been considered by the learned trial court. 16. 16. It further appears that P.W.-7 who is the witness to the inquest report has deposed that he has not seen any injury marks on the body of the deceased and in para-7, he has further stated that deceased was much older than her husband and frequently used to visit her parental home as well as the statement of P.W.-8, who is also an independent witness has clearly deposed that deceased was never beaten or harassed by her in-laws for any demand of dowry. 17. These above facts of the deposition has not been taken into consideration by the learned trial court at the time of judgment of conviction was passed, as these facts create doubts in the mind of the Court for the commission of offences for which the appellant has been charged and the learned trial court has convicted the appellant only following the mandate of Section 113B of the Evidence Act, which is the presumption of dowry death, if the death has been occurred within seven years of marriage in the matrimonial house otherwise than the normal circumstances, but the learned trial court has not considered that the said presumption is rebuttable and the same is rebutted if the deposition of P.W.-7 &8 are taken together. 18. The cruelty or harassment has to be soon before the death, but there is nothing in the statement of any witness that any such demand was raised immediately before the death. 19. In the aforesaid evidence led by the prosecution, none of the witnesses stated about the cruelty or harassment to the deceased by the appellant or any of his family members on account of demand of dowry soon before the death or otherwise. Rather harassment has not been narrated by anyone. It is only certain oral averments regarding demand of Rs.5,000/- which is also much prior to the incident. The aforesaid evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death. 20. The aforesaid evidence led by the prosecution does not fulfil the pre-requisites to invoke presumption under Section 304B IPC or Section 113B of the Indian Evidence Act. Even the ingredients of Section 498A IPC are not made out for the same reason as there is no evidence of cruelty and harassment to the deceased soon before her death. 20. On a collective appreciation of the evidence led by the prosecution, this Court is of the considered view that the pre-requisites to raise presumption under Section 304B IPC and Section 113B of the Indian Evidence Act having not been fulfilled, the conviction of the appellant cannot be justified. Mere death of the deceased being unnatural in the matrimonial home, though within seven years of marriage will not be sufficient to convict the accused, who is mother-in-law of the deceased under Section 304-B and 498-A IPC. . 21. In view of the above, the impugned judgment of conviction and order of sentence dated 30.01.2006 passed by the learned Additional Sessions Judge, Fast Track Court-9, Giridih in Sessions Trial No. No. 33 of1992 is hereby set aside. 22. Accordingly, this appeal is allowed. 23. Appellant is on bail, as such she is discharged from the liability of bail bond. Sureties are also discharged. 24. Pending I.A., if any, stand disposed of. 25. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.