Jharkhand High Court
Sanatan Kumhar And Anr. vs State Of Bihar on 16 May, 2002
Equivalent citations: 2003(1)ALT(CRI)18, II(2002)DMC452
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal has been directed by the appellants against the judgment and order dated 4.1996 passed by Sri A.P. Ram, Addl. Sessions Judge, Seraikella in Sessions Trial No. 191 of 1993 whereby all the appellants named above were found guilty for the offence punishable under Section 498A, I.P.C. and they were convicted and sentenced to undergo R.I. for two years and to pay fine of Rs. 600/- each and in case of default to undergo R.I. for two months each. However, the appellants were not found guilty for the offence, punishable under Sections 302/34, I.P.C. and they were, accordingly, acquitted in respect thereof.
2. The prosecution case has arisen on the basis of Fardbeyan of P.W. 9, Bharat Kumhar, the father of deceased Bijula Kumharin recorded by SI Ram Sundar Ram on 30.10.1992 at 16.30 hours in the P.O. Village Kukru, P.S. Ichagarh, District Singhbhum West (now Seraikella).
3. The prosecution case, in brief, is that Bijula Kumharin, the daughter of informant, was married with appellant Sashidhar Kumhar and their marriage was solemnised about two years ago. Appellants Sanatan Kumhar and Karmi Kumharin are the father and mother respectively of appellant Sashidhar Kumhar. It is alleged that a theft of gold ornaments had taken place in the house of the appellants and deceased aforesaid was accused of committing theft in respect thereof and after committing theft of the gold ornaments she has passed it to her father and due to this the appellants used to assault the deceased and they used to tell that she would not be allowed to live in her matrimonial home. It is also alleged that appellant Sanatan Kumhar had twice brought the deceased to the house of the informant after assaulting her. The prosecution case further is that on the eve of Durga Puja the informant had brought the deceased to his house from her matrimonial home and after Durga Puja appellant Sanatan Kumhar had taken her back to his house. The informant had come to the house of the appellants to see the deceased on 28.10.1992 at 12.00 O'clock where he met the deceased and she told the informant not to come here as appellants Sanatan Kumhar and Sashidhar Kumhar used to tell her that whenever the informant comes there is enough expenditure and at this the informant had returned to his house. Lastly, it has been alleged that on 30.10.1992 one Jotla Kumhar came to the house of the informant and told him that his daughter Bijula Kumharin had taken poison and her condition is deteriorating and on this information the informant along with others went to the house of the appellants and found Bijula Kumharin dead.
4. The prosecution has examined in all 12 witnesses to substantiate the charge framed against the appellants. P.W. 9 is the informant of this case and P.W. 7 has accompanied the informant to the house of the appellants. P.Ws. 1, 4 and 5 are the residents of the P.O. Village and they turned hostile and they do not at all support the prosecution case. P.Ws. 2, 3 and 8 have been tendered. P.W. 10 is of the P.O. Village and he does not also support the prosecution case. P.W. 6 is the medical witness. P.Ws. 11 and 12 are the I.Os. of this case. Ext. 1 series are the signatures of the witnesses on the seizure list, Fardbeyan and inquest report. Ext. 3 is the Fardbeyan, Ext. 5 is the inquest report and Ext. 2 is the post-mortem report.
5. The appellants have pleaded not guilty to the charges levelled against them and they claimed to be innocent and have committed no offence and they have been falsely implicated in this case and the deceased has committed suicide.
6. In view of the evidence - oral and documentary - on the record, the learned Court below has found the appellants guilty for the offence punishable under Section 498A, I.P.C. and convicted them and sentenced them as stated above. However, the appellants were not found guilty for the offence under Section 302/34, I.P.C.
7. Now the question that arises for determination is as to whether there is any illegality in the impugned judgment requiring an interference therein.
8. It has been submitted by the learned Counsel for the appellants that the deceased has committed suicide as she was unhappy of her marriage with appellant Sashidhar Kumhar and she wanted to get her marriage solemnised somewhere else and P.W. 10 in para 2 has deposed in respect thereof. It has also been submitted that the deceased was never subject to cruelty for the demand of dowry by any of the appellants and there is also no iota of evidence on the record of treating the deceased with cruelty by the appellants for the fulfilment of the demand of dowry. It has also been submitted that the deceased was never subject to cruelty in her matrimonial home soon before her death. It has been further contended that some of the simple injuries found on the person of the deceased, as stated in the post-mortem report, is due to the fact that after taking poison the deceased was groaning under pains and she was restless on the cot which has caused those injuries and in this connection evidence of P.W. 4 in para 6 and P.W. 5 in para 3 have been referred. Lastly, it has been contended that the deceased has committed suicide due to the fact that she wanted to get her marriage solemnised somewhere else and she did not like her marriage with appellant Sashidhar Kumhar and her father has twice brought her to her matrimonial home from his house and, as such, the deceased has committed suicide by taking poison. Further, it has been contended that there is no iota of evidence on the record to give an inkling that the appellants had treated the deceased with cruelty or harassed her for the demand of dowry immediately soon before her death.
9. Learned A.P.P. has submitted that the death of the deceased had taken place within two years of her marriage with appellant Sashidhar Kumar and her death was not a natural one and she died of poisoning and a container of poison has been recovered under the cot of the deceased by the I.O. and P.W. 6, the medical witness, has found some contusions on the dead body of the deceased which suggests that the deceased has been assaulted soon before her death.
10. It will admit of no doubt that the deceased was the legally wedded wife of appellant Sashidhar Kumhar and her marriage with Sashidhar Kumhar was performed two years prior to the occurrence in question. The deceased had died an unnatural death in her matrimonial home. P.W. 12, the I.O. had deposed to have recovered a container, of plastic, written poison therein in English, under the cot of the deceased and the said container has been seized as per Ext. 6. P.W. 6, the medical witness, who has conducted the post-mortem examination on the dead body of the deceased, has found the ante mortem injuries which are as follows :
"(a) Contusion of right temporal area 3x3 cm., contusion of occipital scalp 1x1 cm., 1x1 cm., 1 x 1/2 cm., 1/2 x 1/2 cm., contusion of soft tissue of right neck near clavicle 3x3 cm., supra, clavicular soft tissue 2x2 cm. of left neck base."
He has deposed that aforesaid injuries were ante mortem in nature, caused by hard and blunt substance and not at all sufficient to cause death in ordinary course. The medical witness has further deposed that the death of the deceased was due to poisoning. It is pertinent to mention here that there is no whisper in the evidence of prosecution witnesses including the informant and P.W. 7 Kisto Kumhar that the deceased was subjected to cruelty or harassment soon before her death by the appellants or she has been assaulted by the appellants. The evidence of P.Ws. 4 and 5 is quite contrary to the prosecution case which totally negates the fact that the deceased was assaulted soon before her death or subjected to cruelty immediately soon before her death. P.W. 4 has deposed in para 6 of his testimony that he has seen the deceased when he has taken poison and at that time she was dashing her head on the cot and she was also dashing her hand and leg on the ground. P.W. 5 in para 3 has deposed that he has seen the deceased groaning under pains on the cot. Therefore, it cannot be said that the contusion, as found by the medical witness, is a result of any assault or any cruelty perpetrated on her by the appellants immediately soon before the occurrence. The word "cruelty" under Section 498A, I.P.C. means any wilful 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, Or 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. In this connection Section 113-A of the Evidence Act is relevant which provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Section 113-B of the Evidence Act provides that 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 has 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.
11. Let us now take up the averments made in the Fardbeyan. In the Fardbeyan (Ext. 3) there is no whisper of the fact that the appellants have ever demanded any dowry from the deceased or from her parents. The Fardbeyan is also conspicuously silent regarding the fact that the appellants had treated the deceased with cruelty and subjected her to any harassment soon before her death for any demand of dowry. However, there is averment in the Fardbeyan that twice prior to the death of the deceased she was brought to her parents' house by appellant Sanatan Kumhar after assaulting her but no date in respect thereof or any period regarding bringing her back to her parents' house has been disclosed in the Fardbeyan. P.W. 9 in para 1 of his evidence had deposed that four months' prior to the death of deceased, appellant Sashidhar Kumhar has assaulted the deceased by stick on the road in the village. This evidence has no relevancy in this case as it is much prior to the occurrence in question and this assault on the deceased is not immediately soon prior to the occurrence and, as such, it will not definitely fall within the definition of cruelty. P.W. 9 has further deposed that prior to the Durga Puja the deceased has come to his parents' house in his company and she returned to her matrimonial home after Durga Puja in the Company of appellant Sanatan Kumhar. He has also deposed that two days prior to the occurrence the informant had gone to the matrimonial house of the deceased where he was told by the deceased that a theft of money has taken place in his house and appellant Sanatan Kumhar told him that the daughter-in-law of his elder brother has taken away the money. He has also deposed that the deceased had told the informant that he should not come to her house as there is sufficient expenditure due to his arrival here. In para 4 of his evidence he has deposed that whenever he used to come to the house of the deceased she used to tell him that the appellants do not treat her properly. In para 13 of his cross-examination the informant has deposed that the deceased has not made any complaint regarding cruel treatment by the appellants when she was returning in the company of appellant Sanatan Kumhar after the Durga Puja to her matrimonial home. This evidence of P.W. 9, the informant materially contradicts his evidence appearing in para 4 of his deposition. P.W. 7 has deposed that deceased has told him that the appellants used to abuse her and assault her. But in para 8 of his cross-examination he has deposed that he has not stated before the police in respect thereof. Therefore, the testimony of P.W. 7 does not at all show that the deceased was treated with equality in her matrimonial house by the appellants. P.W. 4 has deposed that on the date of occurrence appellant Sashidhar Kumhar was at the house of his Phupha (uncle) and the deceased had told appellant Sashidhar Kumhar to take her to her parents' house and appellant Sashidhar Kumhar has promised that he will take her to her parents' house after Kali Puja. In para 7 of his evidence he has deposed that there was never a quarrel between the deceased and appellants in her matrimonial home. Similar is the evidence of P.W. 5 in para 4 of his cross-examination. P.W. 10 has deposed that the appellants have never treated her with cruelty in her matrimonial home. He has further deposed that the marriage of the deceased with appellant Sashidhar Kumar was performed against the wish of the deceased as the deceased was interested in her marriage with some other person.
12. The evidence on the record, therefore, does not at all establish the fact that the deceased was subjected to cruelty in her matrimonial home for the demand of dowry or the deceased was subjected to cruelty in her matrimonial home for any other reason. The evidence on the record also does not show that the appellants by their wilful conduct had driven the deceased to commit suicide. Therefore, there is no iota of evidence on the record to establish the fact that the appellants have subjected or treated the deceased with cruelty in her matrimonial home. Hence, there is no legal and reliable evidence at all on the record to establish the fact that the deceased was treated with cruelty by the appellants and in this view of the matter the charge under Section 498A does not at all stand substantiated beyond all reasonable doubts. The learned Court below did not meticulously consider the evidence on the record and has erred in coming to the finding of the guilt of the appellants under Section 498A, I.P.C.
13. After careful consideration of all the facts, circumstances and the materials on record it is crystal clear that the prosecution has failed to substantiate the charge under Section 498A, I.P.C. also against the appellants beyond all reasonable doubts. Therefore, there is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order regarding conviction of the appellants under Section 498A, I.P.C. is hereby set aside. The appellants are not found guilty under Section 498A, I.P.C. and they are, accordingly, acquitted. They are also discharged from the liability of their bail bonds.