Jharkhand High Court
Anand Mahato & Ors vs State Of Jharkhand on 22 January, 2016
Equivalent citations: 2016 (3) AJR 335, (2017) 1 JLJR 297
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Cr. Appeal (DB) No.1080 of 2006
with
Cr. Appeal (DB) No.968 of 2006
(Against the judgment of conviction and order of sentence dated 05.06.2006
and 06.06.2006 respectively, passed by Sri Indradeo Misra, Addl. Sessions
JudgeVI, Dhanbad in connection with Sessions Trial No.577 of 2004,
corresponding to G.R. No.954 of 2004 arising out of Baghmara (Kharkhare)
P.S. Case No.102 of 2004)
1. Sumia Devi @ Suma Devi @ Sumitra Devi
2. Gokul Mahto ............. Appellants (in Cr.Appeal (DB) No.1080 of 2006)
3. Anand Mahato
4. Ramesh Mahato
5. Rita Devi ................ Appellants (in Cr.Appeal (DB) No.968 of 2006)
Versus
The State of Jharkhand ...... Respondent
PRESENT: HON'BLE MR. JUSTICE D.N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. A.N. Deo, Advocate
For the Respondent : Mr. Azeemuddin, A.P.P.
(in Cr.Appeal (DB) No.1080 of 2006)
Mrs. Nikki Sinha, A.P.P.
(in Cr.Appeal (DB) No.968 of 2006)
C.A.V. on : 18.01.2016 Pronounced on : 22.01.2016
J U D G M E N T
Per: D.N. Upadhyay, J. These criminal appeals have been directed against the judgment
of conviction and sentence dated dated 05.06.2006 and 06.06.2006
respectively, passed by Sri Indradeo Misra, Addl. Sessions JudgeVI, Dhanbad
in connection with Sessions Trial No.577 of 2004, corresponding to G.R.
No.954 of 2004 arising out of Baghmara (Kharkhare) P.S. Case No.102 of
2004 whereby the appellants have been held guilty for the offences
punishable under Sections 304B and 302 of the Indian Penal Code and each
of them have been sentenced to undergo R.I. for seven years under Section
304B of the Indian Penal Code and R.I. for life under Section 302 of the
Indian Penal Code.
2. The case of prosecution, as it appears from the written report
lodged by Ganesh Mahto, in brief, is that his daughter Sunita was married
with appellant Gokul Mahto on 22.07.2002. In the marriage a sum of
2
Rs.1,05,000/ in cash, Hero Honda Splendor motorcycle bearing registration
no. JH 10 B 7406 and five tolas of gold were given but the appellants were
not satisfied with cash and articles given and they put forth further demand
of colour T.V., freeze, sofa set and bed etc. Due to nonfulfilment of aforesaid
demand Sunita was subjected to torture and treated with crueilty by her
husband and relatives of her husband. It is disclosed that Sunita was blessed
with a male child who at the time of occurrence was aged 78 months. On
27.03.2004in the morning at 10.00 a.m. Yogeshwar Mahto and Fani Mahto informed that daughter and grand son of informant are seriously ill. Receiving such information, the informant with Fani Mahto went to matrimonial home of Sunita. He found the appellants present in the house, dead bodies of Sunita and her son were lying on the cot. Till the informant could understand the situation, the appellants gave him a push and fled away from the house. It is further stated in the written report that on 23.03.2004 sons of informant had been to the house of Sunita but they were not attended properly by the appellants and nobody talked to them. Sunita (deceased) told her brothers, if the demand made by the appellants is not fulfilled by 25.03.2004, she along with her son would be done to death.
3. On the basis of written report lodged by Ganesh Mahto (PW6) DistrictDhanbad, SubDivision Sadar, Baghmara (Kharkhare) P.S. Case No.102 of 2004 dated 27.03.2004 under Sections 302 & 304B of the Indian Penal Code against all the appellants was registered. The police, after due investigation, submitted chargesheet. Accordingly, cognizance was taken and the case was committed to the court of sessions and registered as Sessions Trial No.577 of 2004.
Charge under Section 304B of the Indian Penal Code for causing death of Sunita and charge under Section 302 of the Indian Penal Code for committing murder of infant son of Sunita were framed against all the appellants. The charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. To substantiate the charges so framed, prosecution examined altogether eight witnesses including the informant, the doctor who conducted post mortem examination and the Investigating Officer. The learned Addl. Sessions Judge, at the conclusion of trial, placing relaince on the evidence and documents available on record, held the appellants guilty and sentenced 3 them, as indicated above.
4. Dr. P.K. Arya PW1 had conducted post mortem examination on the dead body of Sunita. He has found ligature mark dark brown in colour above the larynx infront of neck going obliquely to the left 1/4" and the right 3/4". Subcutaneous tissue was hard, dry and parchment like with marking of rope. The doctor did not find any other external injury on the person of deceased. The cause of death, according to the doctor, was asphyxia as a result of hanging. He has proved post mortem report as Exhibit1. The doctor has further conducted authpsy on the dead body of Rahul Mahto, a male child of 7 months, and found :
(i) contusion 2" x 1/2" infront of neck below the larynx extending from one side to other side horizontely,
(ii) contusion 1" x 1/2" over right middle clavicular region, Trachea laryings were congested. The cause of death, opined by the doctor, was strangulation by hard and blunt force. The post mortem report of child has been marked as Exhibit2.
5. Ganesh Mahto (informant) has been examined as PW6. He has supported the prosecution case and disclosed that the occurrence took place on 27.03.2004. He received information at about 10 a.m. regarding illness of his daughter and grand son from Yogeshwar Mahto and Fani Mahto of Birajpur. Immiediately, accompanied by Fani Mahto he went to Birajpur where matrimonial home of his daughter is situated. On his call the door was opened, when he entered into the house, he found the appellants present. When he visited the room of his daughter Sunita, he found her dead on a cot. The dead body of Rahul (son of Sunita) was also lying on the same cot. This witness has repeated the fact that the accused persons were not satisfied with the dowry given in the marriage and they had been demanding freeze, colour T.V., sofa set etc. and for that Sunita was subjected to torture. On 25.03.2004 i.e. four days prior to the date of occurrence, Kanhai Prasad Mahto PW2 and Baldeo Prasad Mahto PW5, who are brothers of Sunita, had visited her matrimonial home but they were not attended by the appellants and nobody talked to them. Sunita disclosed that 4 if the demand made by the appellants is not fulfilled by 25 th March, she along with her son would be done to death. The informant has supported the version made by him in the written report. Kanhai Prasad Mahto PW2 and Baldeo Prasad Mahto PW5 who are brothers of deceased Sunita have corroborated the story narrated by the informant. Dhaneshwari Devi PW3 happens to be mother of the deceased Sunita and she has repeated the same fact, as disclosed by informant Ganesh Mahto. Dilip Mahto PW4 happens to be witness of the inquest whereas Dr. Shailendra Kumar was also present at the time of post mortem examination and he has proved his signature appearing on the post mortem reports. Prafulla Kumar Sinha PW8 is the Investigating Officer and he has supported the investigation done by him.
6. The appellants have examined Ashok Kumar DW1, Dukhu Mahto DW2 and Mithilesh Kumar DW3. DW1 happens to be neighbour of appellants. He has deposed that wife of appellant Gokul was seen hanging with a hook in the room. Her 89 months old child was in her lap. The dead bodies were brought down after cutting the rope. Deceased Rahul was taken to the doctor with a hope that he might be alive. He did not notice any dispute prevailing between the deceased, her husband and inlaws. He never heard about any demand of dowry. As a matter of fact, Gokul was disliked by his wife Sunita and she used to spend her time in her parents house. Dukhu Mahto DW2 has also repeated the same fact as deposed by DW1. DW3 happens to be a formal witness who has proved certain documents relating to motorcycle which was alleged to be given in the marriage.
7. The appellants have assailed the impugned judgment mainly on the ground that no evidence on the point of cruelty committed on Sunita soon before her death has been brought on record by the prosecution. The prosecution has withheld important witnesses who are residents of the locality. The Investigating Officer has admitted that people of the locality were assembled at the place of occurrence but he did not examine them. No cogent explanation for not recording their statement has been extended. The prosecution has failed to bring it on record that dowry was demanded either at the time of marriage or thereafter. No document has been brought on record to show that a sum of Rs.1,05,000/ in cash was given to the appellants. The informant has failed to explain as to from which source he 5 obtained said sum of Rs.1,05,000/ for giving it to the appellants as dowry. The motorcycle was purchased by the appellants from their own income and it was sold to appellant Anand Mahto which fact finds support from the evidence of DW3. There is delay in lodging the written report which is apparent from the statement of PW2, PW5 and PW6. The statement of this witness is not consistent about lodging of the F.I.R. PW6 in para 16 has stated that Kanhai (PW2), Baldeo (PW5), his wife Dhaneshwari (PW3) and Ramdayal had informed the police and they had gone to the police station at about 12 or 12.30 hours. They had gone Madhuban police station from where they could learn that the police had already proceeded to village Birajpur. He did not say that information was lodged at Madhuban police station. By referring aforesaid evidence it was argued that the written report which has been treated as First Information Report, in fact is not the First Information Report regarding occurrence. The police, in connivance with the prosecution witnesses, has suppressed original First Information Report with ulterior motive. The learned trial court has committed error by not placing relaince on the evidence of defence witnesses. It was brought on record that Sunita was unhappy with her husband and she was in habit of spending her time in her parents house. The cause of death of Sunita is asphyxia as a result of hanging. The infant child, as per the post mortem report, was strangulated. This story has been brought on record that Sunita, after killing her child, has committed suicide because she was not happy with her husband and inlaws. No investigation has been done on this point. Only because Sunita was found dead in her matrimonial home and death was otherwise than in normal circumstance, the appellants could not be liable to be convicted. As usual, the married sisterinlaw and her husband who have been living separately, away from the place of occurrence, have been implicated with false allegation. In a case of torture and dowry death, the prosecution witness always try to implicate more and more family members of the husband and that is what has happened in the case at hand. Learned counsel has relied on the following judgments : (1) AIR 2014 SC 3388 (2) AIR 2014 SC 241 (3) 2010 (1) East Criminal Cases 280 (SC) and (4) 2002 Cr.L.J. 3973 (Jhr.).
8. Learned A.P.P. has opposed the prayer and submitted that prosecution has proved its case beyond the shadow of all reasonable doubts.
6Sunita was married on 22.07.2002 and she was killed on 27.03.2004 i.e. within seven years of her marriage. She did not complete even two years of her conjugal life. The appellants had been demanding more dowry which was duly reported by the deceased to her parents and that fact find support from the evidence of PW2 and PW6. Just four days prior to the date of incident, i.e. on 23.02.2004 Sunita had expressed her apprehension before her brothers PW2 and PW5 and stated that if the demand made by the appellants is not fulfilled by 25.03.2004, she along with her son would be killed. The apprehension expressed by Sunita find support from the occurrence which had taken place on 27.03.2004. Needless to mention that in a case of dowry death, chance of eye witness is remote. The learned Addl. Sesions Judge has rightly disbelieved the version of DW1 and DW2 that if Sunita was lying dead and hanging with the help of rope from the hook, possibility of keeping her dead child in her lap does not arise at all. DW1 and DW2 who are the witnesses projected by the appellants have come forward to mislead the court but they could not succeed. The judgment of conviction and sentence recorded by the trial court against all the appellants for both the offences need no interference.
9. We have heard both sides, perused the impugned judgment, evidences and documents available on record. First of all, we would like to deal with the evidence available on record for the offence of dowry death. The death of Sunita had occurred within seven years of her marriage in her matrimonial home is not disputed. The prosecution witnesses i.e. PW2, PW3 and PW6 have consistently deposed about the dowry given in the marriage and the demand which was put forth later by the appellants. Even DW2 in his crossexamination has admitted that he had heard about the payment of Rs.1,05,000/ made by the parents of deceased. The motorcycle which was alleged to be given in the marriage was purchased on 31.05.2002 in the name of appellant Anand Mahto. The informant has clearly stated that he had paid the consideration amount against the purchase of motorcycle but it was purchased in the name of appellant. Sunita was subjected to torture and cruelty by her husband for want of more dowry find support from the evidence of PW2, PW3 and PW6. She had been reporting about the incident to her parents and relatives which find support from the fact that on 23.03.2004 while PW2 and PW5 had been to her house, she 7 had expressed her apprehension that she would be done to death, if the demand is not fulfilled by 25.03.2004. PW2 has supported this fact that his brotherinlaw Gokul and his relatives did not talk to him. This also appears to be a kind of harassment. The mental agoney and torture under which Sunita was suffering from just four days prior to the date of occurrence find suport from the evidence of PW2 and PW6. In a case of dowry death cruelty does not mean only physical assault. The torture and cruelty may be of various kind and that include mental torture too. Therefore, we have no hesitation to observe that Sunita was subjected to cruelty and harassment soon before her death. The learned trial court has rightly held that in a case of dwory death if required four ingredients are proved by the prosecution, the onus lies on the accused persons to prove their innocence. If the four ingredients of dowry death are proved, the presumption can well be drawn taking help of Section 113B of the Evidence Act. In the case at hand, consistent evidence on record is that:
(i) Sunita died within seven years of her marriage - not in dispute,
(ii) Sunita was subjected to torture and treated with cruelty for and in connection with demand of dowry - have been proved by the evidence available on record,
(iii) Death of Sunita had occurred in otherwise than under normal circumstance - is admitted, and
(iv) She was subjected to cruelty and hearassment find support from the evidence of PW2 and PW6.
She had expressed her apprehension before her brother that she would be done to death, if the demand is not fulfilled and that apprehension was expressed on 23.03.2004 just four days prior to the date of occurrence. Therefore, the prosecution has successfully proved aforesaid four ingredients, required in a case of dowry death.
We have gone through the statement of appellants recorded under Section 313 of the Cr.P.C. None of them have admitted that Sunita had committed suicide for having been dissatisfied with her conjugal life. They have simply denied the questions put to them. In the circumstances, we find that the prosecution has proved the offence punishable under 8 Section 304B of the Indian Penal Code for the death of Sunita.
10. Now coming to the question whether all the appellants could be held liable for the offence pupnishable under Section 304B of the Indian Penal Code ? Admittedly, appellant Rita Devi was living with her husband Ramesh Mahto in her matrimonial home and they are Nanad and Nandoshi of the deceased. We do not find that any of the prosecution witnesses have stated that these two appellants had been demanding dowry or insisting for more dowry. It is also not stated that they were regularly residing with the deceased in her matrimonial home rather the address given by appellants Ramesh Mahto and Rita Devi indicate that they are residents of Village Gujardih within Police Station Nawadih, District Bokaro. They are not the resident of same district. No specific allegation, save and except these two appellants were also present in the house on the date of occurrence, has been adduced. No specific evidence has been adduced that they had been demanding dowry or committing torture on the deceased for want of more dowry. Considering aforesaid aspects of the matter, we feel inclined to allow the appeal preferred by appellant Rita Devi and Ramesh Mahato against conviction and sentence passed under Section 304B of the Indian Penal Code and they are hereby acquitted from the charge of the offence punishable under Section 304B of the Indial Penal Code.
11. The facts and circumstances, as appearing in the case at hand do not tally with the judgments cited by the appellants. It is reiterated that Sunita died within seven years of her marriage in her matrimonial home, death of Sunita was otherwise than in normal circumstance, there was demand of dowry for which she was subjected to cruelty and harassment and she was subjected to mental harassment just before her death have successfully been proved by the prosecution. No other cause of death as disclosed by PW1 is appearing on record. Sunita with her seven months old male child was found dead in her matrimonial home but none of the appellants reported the occurrence to the police, rather the evidence available on record suggest that they had tried to destroy the evidences by bringing the dead body down after cutting the rope. The part of the rope by which ligature mark was produced was not placed by the appellants before the police rather the evidence on record indicates that they all absconded when they noticed arrival of the informant in their house.
912. In view of the discussions made above and the evidence available on record, we do not intend to interfere with the judgment of conviction and sentence passed under Section 304B of the Indian Penal Code against appellants namely Sumia Devi @ Suma Devi @ Sumitra Devi, Gokul Mahto and Anand Mahto and findings of the trial court in this regard is hereby upheld.
13. We have gone through the form of charge. It appears that charge under Section 302 of the Indian Penal Code has been framed against the appellants for causing death of Rahul, infant son of Sunita. We do not find that prosecution has adduced any evidence that Rahul was murdered by appellants, save and except that dead body of Rahul was lying on the cot beside the dead body of Sunita. We have carefully gone through the impugned judgment but we do not find any discussion on the point as to how and by whom male child Rahul was killed. The evidence available for holding the appellants guilty for the offence punishable under Section 304B of the Indian Penal Code could not wholly be considered for coming to the conclusion of guilt of the appellants for murder of Rahul under Section 302 of the Indian Penal Code. In a case of dowry death Section 113 (b) of the Evidence Act comes into play but that is not available in a case punishable under Section 302 of the Indian Penal Code. It is proved that male child Rahul was lying dead in the house of appellants but only on that circumstance we cannot held all the appellants guilty for murder of said male child. We have repeatedly examined the evidence available and persued the impugned judgment but we do not find that prosecution has adduced cogent evidence to prove that the appellants had committed murder of male child Rahul. Appellants Gokul Mahto happens to be father of Rahul whereas appellants Sumia Devi and Anand Mahto are grand parents. No reason or motive has been assigned by the prosecution as to why they would kill Rahul. Since the evidence against the appellants for causing murder of Rahul is lacking, we feel inclined go tive benefit of doubt to all the appellants with regard to conviction and sentence passed against them for the offence punishable under Section 302 of the Indian Penal Code and accordintly, all the appellants stand acquitted for the charge framed against them under Section 302 of the Indian Penal Code. The conviction and sentence recorded by the trial Court against all the appellants under Section 10 302 of the Indian Penal Code is hereby set aside.
Appellants Rita Devi and Ramesh Mahato have not been held guilty for the offences for which they have been charged, therefore, they are acquitted. Since appellants Rita Devi and Ramesh Mahato are on bail, they are discharged from the liabilities of their respective bail bonds.
Appellants Anand Mahto and Sumia Devi @ Suma Devi @ Sumitra Devi are on bail, their bail bonds are hereby cancelled. They are directed to surrender within six weeks from today to serve out the sentence failing compliance the convicting/successor court shall be at liberty to issue process to secure their attendance. Accordingly, the court below is directed to issue modified conviction warrant.
14. In the result, the appeal preferred on behalf of appellants Rita Devi and Ramesh Mahato stands allowed and appeal preferred on behalf of appellants Anand Mahato, Sumia Devi @ Suma Devi @ Sumitra Devi and Gokul Mahto stands partly allowed.
(D. N. Upadhyay, J.)
(Ratnakar Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 22.01.2016
NKC// N.A.F.R.