Jharkhand High Court
Paras Yadav vs State Of Jharkhand on 11 January, 2010
Equivalent citations: 2010 (2) AIR JHAR R 833
Author: J. C. S. Rawat
Bench: J. C. S. Rawat
Cr. Appeal (S.J.) No. 1470 of 2005.
Against the judgment of conviction dated 6.10.05 and the order of sentence dated 7.10.05
passed by the learned 1st Addl. Sessions Judge, Garhwa in S.T. No. 314 of 1995.
Paras Yadav . .... ... Appellant
Versus
The State of Jharkhand . .. ... Respondent
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For the Appellant(s) : M/s A.K. Kashyap, Ravi Prakash, Lina Shakti, Advocates.
For the Respondent(s) : Mr. Mukesh Kumar, A.P.P.
PRESENT: HON'BLE MR. JUSTICE J. C. S. RAWAT
BY COURT: This appeal has been preferred by the appellant against the judgment dated
6.10.05by which the learned Sessions Judge has convicted the appellant -accused in ST No. 314 of 1995 under Section 304B of the Indian Penal Code and sentence him on 7.10.05 to undergo Rigorous Imprisonment for 10 years.
2. Feeling aggrieved by the said conviction and sentence passed by the learned Trial court, this appeal has been preferred by the appellant before this Court.
3. In nutshell, the prosecution case is that Saraswati Devi, the daughter of the informant Ramgovind Singh was married with the accused -appellant, Paras Yadav at about five years. At the time of the incident there was no child out of the said wedlock. The husband of the other family members used to abuse and assault the deceased for the dowry. It was further stated that in the month of Magh, she was brutally assaulted and she was asked to leave his house and she went to the house of the Chandrika Yadav and Baldeo Yadav of village- Sigsiga Kalan. Thereafter, the matter was settled by the intervention of the persons named above and the deceased Saraswati Devi went to her matrimonial house. The accused
-appellant Paras Yadav demanded a Radio and Buffalo in dowry when Ram Govind Singh , the father of the deceased went to the village- Sigsiga Kalan along with Basudeo Yadav, Shiv Pujan Yadav etc. Thereafter, the deceased, Saraswati Devi came to her Parental house and stayed for sometime. When she left there for her matrimonial house along with Paras Yadav, the appellant demanded cycle from them, which was given to him and he also reiterated his demand in dowry for Buffalo and Radio. He was assured by Ram Govind Singh, the father of the deceased, that the said demand would be fulfilled during the Dashara days. On 3.9.94, he received message that her daughter is missing from the matrimonial house and he went to the village on the next day i.e. 4.9.94 and it was brought to his notice that she was assaulted by the accused appellant on 2.9.94 and since then, she is missing. It is also transpired from the record that the dead body of the deceased was recovered on 4.9.94 from a nearby well and it was found that the legs of the deceased were tied up with ropes and body was on the water. It is also alleged that the local villagers Prem Yadav, Bhajan Yadav, Dinesh Yadav, Baldeo Yadav and Chandradeo Yadav etc. had heard hue and cry of the deceased in the night of 2.9.94 and she was crying why she is being tied up and why she is being assaulted. On the basis of the said information to the police by Ramgovind Yadav, the father of the deceased and the informant of this Case, the case was registered and the investigation was conducted by the police. After completion of the investigation, the chargesheet was submitted before the trial court.
4. The learned Magistrate committed the case to the Court of Sessions for the trial and the learned Addl. Sessions Judge, who heard the matter, framed the charges against the accused appellant and the accused-appellant denied the charges and claimed for trial. It is also pertinent to mention herein that the co-accused Asharfi Yadav and Kamoda Devi, the father in law and the mother in-law of the deceased respectively had already been acquitted by the trial court.
5. The prosecution in support of its case examined the the witnesses, which are P.W.- 1- Chhatu Yadav, P.W.-2- Ram Govind Yadav, P.W.- 3- Md. Zafar Khan, P.W.-4- Baldeo Yadav, P.W.- 5, Kailash Yadav, P.W.-6- Shiv Pujan Yadav, P.W.-7- Bhajan Yadav, P.W.- 8- Ganesh Yadav, P.W.-9- Dr. Ajay Kumar Jha and P.W.- 10- Baijnath Yadav.
6. After recording the evidence of 113 of the Cr.P.C., the appellant-accused has denied all the averments made in the evidence against the accused appellant and he has stated that the marriage took place about 12 years ago i.e. form the date of incident. The dead body was recovered from the well and the legs were not tied up.
7. The defence has examined as many as four witnesses, which are D.W.-1- Sahodar Devi, D.W.-2- Ram Dhayan Pal, D.W.-3- Sanjay Kumar Yadav and DW-4- Jagdish Prasad Singh. D.W.- 2 Ramdhyan Pal is a formal witness and D.W.- 4 is a Sarpanch of the village- Sigsiga Kalan. Apart from the above oral evidence, the appellant- accused also produced Punchyatnama, Ext.- A, signed by the Punches as well as the accused-appellant and the complainant party. After hearing the parties, the learned trial court convicted and sentenced the accused-appellant party as indicated above.
8. At the outset, I would like to mention that there is no dispute that the deceased died on the date and time of the incident as alleged by the prosecution. It is also not disputed that the deceased was the wife of the appellant-accused and further they married together but only dispute is as to whether the marriage took place within seven years from the date of the incident or it took place beyond seven years. It is also not disputed that the dead body of the deceased was recovered from the well. According to the evidence of the P.W.-9, Dr. Ajay Kr. Jha, who conducted the autopsy of the body of the deceased on 5.9.1994 at 5 PM, the following Antemortem injuries were found to the body of the deceased;-
(I) Abrasion- 1/4" x 1/4" over supra stomal notch and (ii) Bruise 3" x 2" over forehead. According to the opinion of the Doctor, the cause of the death could not be ascertained. He further opined that the duration of the death at the time of the autopsy was about 48-96 hours ago. Thus the medical evidence also corroborates the factum of the death on the date of the incident as alleged by the prosecution. The prosecution has also proved by the oral evidence to the effect that the deceased left her house on 2.9.94 and the dead body was recovered from the well on 4.9.1994 and as such and date and time also co-relates from the oral prosecution evidence, thus it is amply established that the deceased died on the date and time of the examination mentioned in the prosecution case.
9. Now it has to be decided that as to whether the appellant is liable for the offence charged against him. According to the Prosecution, the accused-appellant committed the cruelty upon the deceased in connection with dowry demand and thereafter she was found dead and her body was recovered from well near the house of the appellant. While recovering the dead body of the deceased, it was found that her legs were tiedup with rope and there were some injuries on her person. The accused appellant has taken a case that he has falsely been implicated in this case and he is innocent person. He has also taken the case of totally denial. Before proceeding with the evidence, I would lie to refer the relevant provisions of Section 304B of the IPC as well as Section 113B of the Evidence Act, which are as follows:
Section 304B of the IPC "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 demand to have caused her death.
(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"
Section 113B of the Indian Evidence Act:
"Section 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 b 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."
10. The conjoint reading of both the Section 304B of the IPC and Section 113 B of the Evidence Act reveals that there must be material to show that soon before the death the victim was subjected to cruelty or harassment soon before the death and the same is relative term and it would depend upon the circumstances of the case and no straight jacket formula should be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period. The soon before the death would normally implied that the interval could not be in between the concerned cruelty or harassment and the death in question. If the alleged incident of cruelty is remote in time and has become stale enough, it would be of no consequence. The presumption as provided under Section 313 B Cr.P.C would operate that if the prosecution is able to establish the ingredients set out in Section 304 B of the IPC. If the prosecution fails to establish the ingredients laid down under Section 304B IPC, the prosecution would not arise in favour of the prosecution [See 2003 (2) SCC 188- State of Karnataka Vs. M.V. Manjunathegowda & Another and 2004(3) SCC) 98- Yashoda & Another Vs. The State of M.P.].
11. The first ingredient as set out from the perusal of the Section 304B IPC is that the death should have been un-natural and it should have been caused otherwise than under normal circumstances. It is not in dispute that the deceased was missing from the house since 2.9.94 and her dead body was recovered from the well and she was found dead. It is established from the record that the death occurred otherwise than under the normal circumstances.
12. The first ingredient has been proved by the prosecution and the second ingredient according to Section 304B IPC is that such death should have been caused within 07 yeas of her marriage. The prosecution has projected by the evidence that the death has occurred within 5 years of the marriage of the deceased whereas the accused has stated that at the time of the incident, the marriage has completed 12 years. It is also mentioned in the evidence of the father of the deceased, P.W. 2- Ram Govind Singh- the informant of this case that the deceased was married in the year 1993 and the father is the best person who can tell the date of the marriage of his daughter. It is also transpired from the evidence of P.W. - 4, Baldeo Yadav, who is of the same village, that the marriage took place about 6- 7 years ago. All the above witnesses have been cross-examined at length but nothing could have been elicited from the evidence to discredit their testimony. The mother and the brother of the deceased, D.Ws. 1 and 3 respectively produced by the defence and from the evidence it is revealed that the marriage had taken place within the stipulated period indicated in Section 304B of the IPC.
13. The third ingredient, which has to be proved by the prosecution is that soon before the death she could have been subjected to cruelty and harassment by the accused-appellant in connection with the demand for dowry. In case in hand, the informant, the father of the deceased, P.W.- 2, Ram Govind Singh, has categorically stated that the accused-appellant demanded Buffalo , Cycle and Radio. The Cycle was given when she left for her matrimonial house from her Paternal house. The appellant was assured that the Buffalo and Radio would be given to him during Dashara. The demand was long standing which was renewed time to time by the appellant as stated by the prosecution witnesses. The evidence of P.W.- 2, Ram Govind Yadav, the father of the deceased, is credible and cogent and nothing could be elicited during the cross- examination from his evidence to discredit his evidence. It is also in the evidence that the deceased also sustained injuries on her person which is revealed from the post mortem report. According to the prosecution witnesses her legs were found to be tied up at the time of recovery of the dead body from the well. There is evidence against the accused appellant that the deceased was in the company of the appellant till she left the matrimonial home. Now it is for the appellant to show that how these injuries came to the person of the deceased. It was exclusively within the knowledge of the accused appellant. If any fact is exclusively in the knowledge of the accused appellant, the said circumstances have to be explained by the accused appellant. It is also pertinent to mention that the person who commits the suicide would not jump in the well with tied legs with rope. The doctor has not stated that the death occurred due to Aspresia and drowning in the well. The injuries were found in her body. The accused has taken a case under Section 313 Cr. P.C that he has been falsely implicated. The Hon'ble Apex Court has held in para 14 of the case reported in 2000(5) SCC 197- Joseph Vs. The State of Kerala, which is as follow:-
"14.- The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 CrPC, the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned. Such incriminating link of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh (2000) 1 SCC 471: 2000 SCC (Cri)
263). That missing link to connect the accused-appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalized apparently reposing faith and confidence in him in view of his close relationship- being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the high Courts in respect of the findings relating to the charge under Section 376".
14. The body of the deceased was recovered from the well and her legs were found to be tied up with rope. Soon before the death the appellant had made demand for Radio and Buffalo. The evidence of Ram Govind Singh is credible and cogent. Thus the prosecution has successfully established that soon before the death, she was subjected to cruelty in connection with dowry demand of Radio and Buffalo.
15. Thus the prosecution has proved all the ingredients indicated in Section 304B and as such the presumption as given under Section 113B of the Evidence Act would become operative and go against the accused appellant and the ingredients enumerated in Section 113 of the Evidence Act has been amply proved by the prosecution as indicated above.
16. The learned counsel for the appellant contended that the evidence of D.Ws. 1 and 3, namely Sahodar Devi and Sanjay Kr. Yadav, the mother and the brother of the deceased respectively completely denies the evidence of Ram Govind Singh, P.W.- 2, the informant of this case and such such the evidence of Ram Govind Singh, P.W.- 2 is believable. It is pertinent to mention herein that the parties have decided to compromise the matter outside the court and it was further decided that they will not contest the case as they have settled the matter outside the court. This compromise was recorded in the year 1998 whereas the evidence of D.W. 1 and D.W.- 3, the mother and the brother of the deceased respectively was recorded in the year 2005. Thus in view of the compromise entered between the parties outside the court and the D.W.- 1, the mother of the deceased and D.W.-3, the brother of the deceased have not supported the prosecution evidence and the evidence cannot be taken into account at all because Section 304 B of the IPC is not compoundable. It is also well settled proposition that the evidence of prosecution and the evidence of defence should be appreciated at par and while appreciating the evidence it has to be seen as to whether the theory which has been taken in the defence case is consistent with the defence case or not. D.W.-1, the mother of the deceased and D.W.-2, Ram Dhayan Pal have stated in their evidence that no demand of dowry was made to the deceased. It was further stated that the father of the deceased was asking for return of the articles which were presented to the appellant at the time of the marriage. When the appellant did not return the article so the informant, the father of the deceased, P.W.- 2, Ram Govind Singh lodged the report. Thus this theory does not reason to believe as to why the parents will demand the dowry to return back which have already been given to the appellant. This theory has not been put during the cross-examination by way of suggestion by the appellant. This theory has not stated under Section 313 Cr. P.C.
17. The learned counsel further contended that the parties have settled their dispute outside the court and they have filed the said document as Ext- A to the defence evidence and it has been proved by the Sarpunch of the village and other witnesses and the mother and the brother of the deceased, D.Ws. 1 and 3 have come forward in support of the said compromise. Thus the learned counsel for the appellant contended that keeping in view of the compromise in between the parties, the punishment awarded by the Court should be reduced. There is no dispute that the compromise has taken place in between the parties. It is also settled proposition of law that the legislature has provided a list of the compoundable offence with or without leave of the court under the provisions of Cr.P.C. The offence under Section 304B of the IPC is non-compoundable offence under Section 320 of the Criminal Procedure Code.
18. Section 320 of the Criminal Procedure Code lays down that the offence punishable under Section of the Indian Penal Code specifies in two column of the Table, may be compoundable. Admittedly, Section 320 of the Cr.P.C. will show that the offence under Section 304B of the IPC is not compoundable therefore, the consent of the informant, P.W.- 2- the father, the mother and the brother is of no consequence and it can not be utilized for the purpose of recording the finding of acquittal in favour of the accused-appellant.
19. There are catena of decisions of the Hon'ble Apex Court wherein the compromise between the accused persons and the appellant and the complainant or the person aggrieved has taken into consideration for reducing the sentence. It has been held in the case reported in [(2008) 1 SCC 161] Hasi Mohan Barman and Another Vs. The State of Assam and Another. Paras 10 and 11 of the said judgment run as under:-
"10: The first decision on this point was rendered by this Court in Ram Pujan Vs. State of UP [(1973) 2 SCC 456: 1973 SCC (Cri.) 870] wherein the trial court had convicted the accused under Section 326 IPC which is a non-compoundable offence and had sentenced the accused to four years' RI. The High Court took into consideration the compromise between the appellant accused and the injured and reduced the sentence to two years' RI. This Court, after observing that the fact of compromise can be taken into account for determining the quantum of sentence, reduced the sentence to the period already undergone which was little more than four months and further imposed a fine of Rs. 1500 on each of the appellants. Surendra Nath Mohanty Vs. State of Orissa [(1999) 5 SCC 238:
1999 SCC (Cri) 998] is a decision of a Bench of three learned Judges. It was observed that in view of the legislative mandate contained in section 320 CrPC an offence can be compounded only in accordance with the provisions of the said section. The court followed the view taken in Ram Pujan and having regard to the fact that the parties had compromised and a period of ten years had elapsed from the date of the incident reduced the sentence of five years' RI imposed under Sections 307 and 326 IPC to the period of sentence already undergone which was three months and also imposed fine of Rs. 5000/- .
11: There are several other decisions of this Court wherein factor of compromise has been taken into consideration and the sentence has been reduced mostly to the period already undergone and they are Bankat Vs. State of Maharshtra [(2005) 1 SCC 343: 2005 SCC (Cri) 316], Badrilal Vs. State of MP[(2005)7 SCC 55: 2005 SCC (Cri) 1597] and Jetha Ram Vs. State of Rajasthan[(2006) 9 SCC 255: (2006) 2 SCC (Cri) 561]."
20. in view of the above, I am also of the view that the matter has already been settled in view of Ext.- A, and the sentence could be reduced in this case. The sentence is reduced from ten years to seven years of the Rigorous Imprisonment which would be sufficient for the ends of justice in this case. The learned counsel for the appellant pointed out that he had already in custody for last six and half years in this case. It would be just and proper to sentence him the period seven years under Section 304B IPC in this case.
21 In view of the above, the prosecution has proved the case beyond the reasonable doubt against the accused-appellant under Section 304B of the Indian Penal Code and the conviction passed by the learned Sessions Judge is maintainable and confirmed and the sentence is modified and reduced from ten years to the period seven years R.I. under Section 304B of the IPC . This appeal is partly allowed to the extent of the sentence as indicated above.
(J. C. S. Rawat, J.) Jharkhand High Court, Ranchi.
Dated: the 11th of January, 2010.
Anu- NAFR