Jharkhand High Court
Mahesh Prasad S/O Shri Ishwar Sah And ... vs State Of Jharkhand on 30 September, 2005
Equivalent citations: 2006(3)BLJR2350, I(2006)DMC340, [2006(1)JCR176(JHR)], 2006 CRI LJ (NOC) 148, 2006 (1) AIR JHAR R 210, (2006) 1 EASTCRIC 8, (2006) 1 MARRILJ 639, (2006) 1 JCR 176 (JHA), (2006) 38 ALLINDCAS 879 (JHA), (2006) 2 CRIMES 31, (2006) 1 DMC 340, 2005 BLJR 3 2350
Author: R.K. Merathia
Bench: R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 23.10.2003 and 7.11.2003 respectively, passed by Sri Kumar Kamal, Additional Sessions Judge, FTC 1, Bermo at Tenughat in ST. No. 252 of 1995, convicting the appellants under Sections 304B/34, IPC and sentencing them to undergo rigorous imprisonment for ten years.
2. The informant Ramjee Prasad PW-13 lodged FIR on 28.2.1995 alleging inter alia that his daughter-Bina Devi, aged about 19 years, was married to Mahesh Prasad appellant No. 1. During marriage, dowry was given, by which the accused persons were not satisfied and appellants and two brothers of appellant No. 1 used to make further demand of a Hero Honda Motorcycle and a Colour TV. Due to non-fulfillment of the demand, they used to torture his daughter. His daughter remained fearful and worried as there was threat to her life. During preceding "Chhath" festival, his daughter was branded with hot iron rod near her waist and hand. The matter was settled after persuading her in- laws. On 27.2.1995 at 9 p.m.. one Narayan Sonar informed him that his daughter has consumed poison and she is admitted in the hospital. Later, he changed his version that she had committed suicide by hanging herself. On this information, he along with his brother-Laxman Prasad PW 11, Bigan Prasad PW-12, Kartik Prasad PW-10 and several others, went to village Badro and found his daughter dead.
3. Mr. B.M. Tripathy, learned Counsel for the appellants, submitted as follows :-
PWs 1 to 7, who are all co-villagers of the appellants, stated that Bina Devi died due to hanging. PWs 1 to 6 have been declared hostile.
PW 9 Narayan Sonar stated that Dinesh, brother of appellant No. 1 told one Devi Das about the occurrence and Devi Das asked this witness to inform the informant that his daughter committed suicide. This witness has also been declared hostile. From the evidence, it appears that appellant No. 3-Kapuri Devi, mother of the deceased scolded and beaten the deceased due to excess salt in the vegetable, due to which she committed suicide by handing. He further submitted that allegation of causing burn injuries by hot iron rod against appellant No. 3 mother-in-law has not been proved as PWs 8 and 11 said that they saw burn scar on lower abdomen/waist of the deceased, whereas PW 10 said that he did not see any injury on the dead body and the doctor PW-14 said that burn scar mark may be 8-10 years old.
The prosecution could not prove the cause of death. Investigating Officer has not been examined. No incriminating article was seized from the place of occurrence. None of the villagers of the appellants' village Badro, supported the prosecution case and they even did not take part in cremation of the dead body. The informant had to take the dead body for cremation to his village Khurdgara. There was some dispute at the time of marriage, which has been given a colour of dowry death.
4. Learned state Counsel submitted that age of burn scar cannot be ascertained and therefore the opinion of the doctor that the burn scar was 8 to 10 years old, cannot be relied. The case of the prosecution about causing such injuries at the time of "Chhzath" i.e., 4-5 months prior to the death, is fully proved. Burn scar found in the inquest report is supported by the evidence of other PWs P.Ws 10 and 12 said that they did not see any 'injury' on the dead body but 'injury' is different than a burn scar mark. Death occurred within seven years in abnormal circumstances in the house of the appellant and there are evidences of demand of dowry and therefore the judgment under appeal needs no interference.
5. I am not inclined to accept the opinion of the doctor that the scar mark was 8-10 years old. There are sufficient materials to support the prosecution case that deceased was branded with hot iron rod near her waist at the time of "Chhath" i.e., few months back prior to her death. The cause of death could not be ascertained. The postmortem report and the evidence of the doctor are perfunctory.
Investigating Officer has not been examined. However, in order to find out the cause of death, I looked into the case diary. The police was told that the body of the deceased was hanging from the ceiling by a rope. A ladder was found resting on the wall; a rope was found tied in the ceiling and some cut rope was also found. Police was told that when the deceased was found hanging the rope was cut and she was brought down but by that time, she died. The height of the ceiling was about 12' 14'. Police was told that the relation between the deceased and appellant No. 1 was not good as appellant No. 1 remained ill and out of station. Rina Kumari and Bina Kumari, both sisters of appellant No. 1, told the police that Bina Devi was keeping fast on the eve of 'Shivratri; her mother-in-law Appellant No. 3 was bedridden due to illness; there was dispute over excess salt in vegetable and due to this their mother beaten the deceased; deceased sent them for picking flowers for 'Puja' and on return they saw the deceased hanging and struggling for life. On their alarm, people came and brought her down after cutting the rope but by that time, she died.
No ligature mark was found. As per the medical jurisprudence, in some cases of hanging, the ligature mark may not be there if the deceased is brought down soon after hanging. This case appears to one of such cases. PW 10 saw sticking of saliva near the mouth of deceased. Pleura and Lungs were found congested. No internal or external injury was found.
It has come in evidence that there was some dispute at the time of marriage. Except PW 10, (uncle of the deceased, as per village relation); PW 11 (the uncle of the deceased); PW 13 (the informant), there is no independent witness on the point of demand of dowry. None of the co-villagers of the appellants' village Badro, supported the prosecution case. The informant had to take the dead body for cremation to his village Khurdgara. These circumstances indicate that the independent witnesses were not supporting the prosecution case regarding demand of dowry and causing death for the same. It does not appear to be a case of dowry death. It appears that the deceased committed suicide by hanging.
Though there are specific allegations against appellant No. 3 the mother-in-law that she tortured the deceased and branded her with hot iron rod, appellant No. 1, who is the husband and appellant No. 2, who is the father-in-law, are equally responsible. All resided together.
6. After hearing the parties and carefully scrutinizing the evidence, I am inclined to alter the finding of conviction, by convicting the appellants under Section 498-A, IPC, instead of 304-B, IPC.
7. Mr. Tripathy, on the question of sentence, submitted that appellants have remained in jail for more than two years and they have suffered this case for about 10 years and therefore no useful purpose will be served by keeping them in jail.
8. In the circumstances, the sentence is modified to the imprisonment already undergone by the appellants and a fine of Rs. 10,000/- (Ten thousand) each. In case of default, they will undergo a further imprisonment of six months. If the fine is deposited or imprisonment is undergone, in default of the same, appellants will be released and discharged from their bail bonds.
In the result, this appeal is partly allowed.