Jharkhand High Court
Dwarika Mistry And Ors. vs State Of Jharkhand on 25 September, 2003
Equivalent citations: II(2004)DMC375, [2004(2)JCR322(JHR)], 2004 CRI LJ (NOC) 184, 2004 AIR - JHAR. H. C. R. 790, (2004) 2 JCR 322 (JHA), (2004) 2 DMC 375, (2004) 2 JLJR 657
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the appellants named above is directed against the impugned Judgment and order dated 13.6.1998 and 18.6.1998 respectively passed in S.T. No. 448 of 1998 by Sri Mishri Lal Choudhury, 5th Additional Sessions Judge, Hazaribagh whereby and whereunder they were found guilty for the offence punishable under Section 304B/34 of the Indian Penal Code for causing the dowry death of Kalamati Devi, the lawfully wedded wife of appellant Ajit Rana and they were convicted and sentenced to undergo rigorous imprisonment for ten years each. However, co-accused Gita Devi was found not guilty and she was accordingly acquitted.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of informant PW 7 Deoki Rana, the father of Kalamati Devi, the deceased of this case recorded on 29.5.1998 at 18.15 hours at Bari of the house of the appellants situate in village Chutiaro by PW 8 SI S.N. Prasad of Muffasil P.S. Hazaribagh about the occurrence which is said to have taken place on that very day in the said Bari of the house of the appellants for causing the dowry death of Kalamati. The case against the appellants was instituted by drawing of a formal FIR (Ext. 3) on that very day at 22.15 hours which was received in the Court on 31.5.1998 empowered to take cognizance.
3. The prosecution case, in brief, is that Kalamati Devi, aged about 18 years, is the daughter of the informant and her marriage was solemnized with appellant Ajit Rana in the month of April 1997. On the occasion of her marriage, the informant had delivered Rs. 16,000/- to appellant Ajit Rana, but in spite of that, there were ill will and differences between the couple. It is alleged that PW 5 Bhuneshwar Mistry of the village of the appellant came to the house of the informant at village Baheri and informed him that dead-body of Kalamati has been recovered from the well situate in the Bart of the house of the appellant and on this information the informant in company of his brother PW 3 Triveni Rana and his co-villagers went there and found her dead-body lying on a cot under a tree near the well in the said Ban and on query he was informed by appellants Budhni Devi and Dwarika Mistry that Kalamati Devi had accidentally fell in the well as a result of which she had died. It is further alleged that he went to the well aforesaid and found the well-curb completely covered by the logs of wood and there was only a small passage left in the well-curb for taking water by bucket and the rope of the Lattha used for taking water from the said well was also found cut and the rear portion of the said Lattha was also found damaged which gave reasonable suspicion to him that all the appellants, who are the father-in-law, mother-in-law and husband respectively of the deceased along with acquitted accused Gita Devi who is the sister of appellant Ajit Rana have committed the murder of Kalamati Devi and they have thrown her dead-body in the well. It is also alleged that appellant Ajit Rana was found missing from his house from the early morning of that day.
4. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case on mere suspicion.
5. The prosecution has examined, in all, 9 witnesses to substantiate its case. PW 7 Deoki Rana is the informant of this case and he is the father of Kalamati Devi, the deceased in this case. PW 4 Girija Devi is the step mother of the deceased. PW 5 Bhuneshwar Mistry is the resident of the village of the appellants and they have turned hostile and do not support the prosecution case. The evidence of PW 6 Tileshwar Prasad, a resident of different village, and PW 1 Baldeo Kumar a co-villager of the appellant has no relevancy in this case regarding the occurrence in question. PW 3 Triveni Rana is the uncle of the deceased and PW 2 Muneshwar Rana is the agnate of the informant and their evidence is relevant in this case in respect of alleged demand of dowry by the appellants from the informant, though they are not the ocular witnesses of the occurrence. PW 9 Dr. D.L. Mandal has conducted the postmortem examination on the dead-body of the deceased and the postmortem report per his pen is Ext. 4 in this case. PW 8 Sheo Nath Prasad is the I.O. of this case. No oral or documentary evidence has been brought on the record on behalf of the defence.
6. Relying upon the testimony of PW 2 and PW 3 coupled with the evidence of PW 9, the medical witness, and the objective finding of the I.O. regarding the well-curb in question and the surrounding circumstances of the case, the learned Court below came to the finding that the death of the deceased is not a natural death and is otherwise than under normal circumstances within 7 years of her marriage and there was demand of dowry and the deceased was subjected to cruelty soon before her death and she was strangulated to death and her dead-body was thrown in the well after committing her murder and in view thereof the appellants were found guilty and convicted and sentenced as stated above.
7. Assailing the impugned Judgment it has been submitted by the learned counsel for the appellants that there is no averment in the fardbeyan (Ext. 2) of the informant regarding any demand of dowry and the deceased having been subjected with cruelty for the fulfillment of demand of dowry and PW 7 the informant and his wife PW 4 have not deposed about any cruelty perpetrated on the deceased for the fulfillment of demand of dowry and they have not at all supported the prosecution case in respect thereof and there is no iota of legal evidence on the record that soon before her death, the deceased was tortured, harassed, vexed or treated with cruelty for the demand of dowry. It has also been submitted that there is no legal evidence on the record that the appellants have ever demanded any dowry either from the deceased or the informant or his relatives. It has also been submitted that even PW 3 and PW 2 in their cross-examination have contradicted their evidence regarding any demand of dowry by the appellants from the deceased or her father and his relatives and torture of the deceased for fulfillment of the said demand. It has further been contended that though the medical witness has found the death of the deceased due to asphyxia caused by strangulation but there is no evidence on the record to give an inclining of the fact that the appellants have committed her murder and the witnesses who have taken oath for the prosecution in this case have not even whispered in respect thereof. It has also been submitted that charge has been framed in this case under Section 304B of the Indian Penal Code and no alternative charge under Section 302 of the Indian Penal Code has been framed against the appellant by the learned Court below. There is no evidence on the record that the appellants have committed the murder of the deceased and thrown her dead-body in the well. Lastly it has been contended that there is no iota of legal evidence to connect or implicate the appellants in this case for causing either the dowry death of the deceased or her murder and on the contrary, there is evidence of PW 7 and PW 6 besides PW 3 and PW 2 that there was cordial conjugal relationship between the deceased and her appellant husband and the learned Court below did not meticulously consider the evidence on the record in proper perspective and has been swayed by conjectures and surmises and has gravely erred in coming to the finding the guilt of the appellants. Thus, the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the case of Chando Devi v. The State of Bihar, 2003 (1) East Cr C 493 (Pat) : 2002 Cri LJ 2783 and The State of Rajasthan v. Gyaneshwar and Ors., 2002 Cri LJ 1312.
8. Refuting the contention aforesaid, it has been submitted by the learned APP that the death of Kalamati is otherwise than under normal circumstances within 7 years of her marriage in the Bart of her matrimonial home and there is evidence on the record that there were aberrations in her conjugal life and she was subjected to cruelty for the demand of dowry and PW 3 and PW 2 in their evidence have stated in respect thereof but later on in their cross-examination, they have contradicted their testimony for the reasons that some settlement has been arrived at between the informant and the appellants out of the Court. It has also been submitted that the medical witness has opined that the death of the deceased has been caused due to asphyxia as a result of strangulation and after the commission of her murder her dead-body has been thrown in the well and PW 8, the IO, in his objective finding has totally ruled out regarding the accidental fall of the deceased in the well leading to her death and thus the finding of the guilt arrived at by the learned Court below does not suffer with any infirmity requiring an interference therein.
9. It will admit of no doubt that Kalamati Devi, the deceased of this case, is the lawfully wedded wife of appellant Ajit Rana and their marriage was solemnized in the month of April 1997 and a sum of Rs. 16,000/- was paid to the appellant at the time of her marriage. Appellants Dwarika Mistry and Budhni Devi are the parents of appellant Ajit Rana. There is also no denying the fact that the death of Kalamati Devi has taken place on 29.5.1998 and her dead-body was recovered from the well situate in the Bari of the house of the appellant PW 9 Dr. D.L. Mandal has conducted the postmortem examination on the dead-body of the deceased on 30.5.1998 at 17.45 hours and he has deposed not to have found any external ante-mortem injury on her body, but on dissection of the neck of the deceased he has found extravasation of blood into adjacent muscle of neck and also laceration on the sheath of the carotid artery and hyoid bone was found fractured. The medical witness also found larynx and trachea of the deceased - congested and they contained frothy mucus. The medical witness has thus opined that the cause of the death of the deceased is due to asphyxia as a result of strangulation. In his cross-examination the medical witness has categorically deposed that the injuries aforesaid cannot be possible by fall of a person on either a stone or iron rod. PW 8, the IO has deposed to have inspected the place of occurrence and found a well in the Bari of the house of the appellant within the boundary walls from all the four sides. He has further deposed that the well-curb was fully covered with wooden logs and there was only an outlet for taking water from the well by a bucket. He has further deposed that the rope fastened with the Lattha was found cut by sharp cutting weapon and the hinder portion of Lattha was also found damaged. The objective finding of the I.O stands corroborated as per the evidence of PW 1 Baldeo Kumar, PW 2 Muneshwar Rana and PW 3 Triveni Rana in respect thereof. In view of the objective finding of the IO read with the evidence of the aforesaid witnesses, the possibility of the accidental fall of the deceased in the well while fetching water is totally ruled out in this case. The medical witness has also categorically deposed that death of the deceased is due to asphyxia as a result of strangulation. Now a question arises as to whether the strangulation in this case causing the death of the deceased is suicidal, homicidal or accidental. It is relevant to mention here that suicidal strangulation is not very common whereas accidental strangulation is rare and homicidal strangulation is the commonest of the three forms. The existence of the internal injuries of the neck of the deceased as found by the medical witness, also totally rules out the case of the deceased committing suicide by strangulation in the facts and circumstances in this case. Accidental strangulation of the deceased is also totally ruled out in this case. A person committing suicide by strangulation can not fall in the well especially when the hole in the well-curb is so small that only a bucket can be used for taking water. The circumstances surrounding the well also totally rule out the possibility of accidental strangulation of the deceased and her fall in the well. It is not possible for any one to continue a firm grasp of the throat while committing suicide as unconsciousness supervenes immediately in case of self strangulation. It appears in this case that the deceased was strangulated to death and her dead-body was thrown in the well. Therefore, it is a case of homicidal strangulation and I see no reason to disagree with the objective finding of the medical witness in respect thereof. However, the appellants are not being prosecuted in this case under Section 302 of the Indian Penal Code and no alternative charge has also been framed against them by the learned Court below which may be due to inadvertence or the lacks of knowledge of the basic tenets of the criminal jurisprudence. Be the case as it may, the death of the deceased is definitely not a natural death and it is otherwise than under normal circumstances within 7 years of her marriage having taken place in the Bari of her matrimonial home in village Chutiaro.
10. Therefore, the presumption of mandatory requirement under Section 113B of the Evidence Act may be drawn in this case regarding the dowry death of the deceased provided it is proved by legal evidence on the record that the deceased was subjected by the appellants to cruelty or harassment soon before her death for or in connection with any demand of dowry.
11. To constitute an offence under Section 304B, the following essentials must be established :
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances ;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband ;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry.
It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called dowry death and the husband or his relatives shall be deemed to have caused her death.
12. A conjoint reading of Section 113B of the Evidence Act and Section 304B of the Indian Penal ode shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment for or in connection with any demand of dowry. The prosecution has to rule out the possibility of a natural or an accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The prosecution has to prove that soon before the occurrence there was cruelty or harassment on the deceased for or in connection with any demand of dowry and only in that case presumption operates. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a link between the effect of cruelty based on the demand of dowry and the concerned death and if the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no significance. It is pertinent to mention here at the very out set that there is the averment in the fardbeyan (Ext. 2) of the informant that he had paid Rs. 16,000/- to appellant Ajit Rana on the eve of his marriage with the deceased and in spite of that there were ill will and differences between him and the deceased. There is no averment in the fardbeyan that the appellant Ajit Rana or other appellants or any member of his family had ever demanded any dowry either from the deceased or from the informant. There is also no averment in the fardbeyan that the deceased was subjected to cruelty for fulfillment of any demand of dowry by the appellants. Let us now advert to the evidence on the record. PW 7 informant Deoki Rana has deposed that on getting information of the death of the deceased, he had gone to the house of the appellant and he had found the dead-body of the deceased kept lying near the well. He has also deposed that on enquiry he learnt that she had fallen in the well while fetching water as a result of which she has died. In his evidence on oath, the informant has not deposed about demand of any dowry either from the deceased or from him by the appellants and treating the deceased with cruelty for the fulfillment of the said demand, rather in his cross-examination, he has specifically deposed that the appellants had never demanded any dowry from the deceased and there was a very cordial conjugal relationship between the deceased and her appellant husband and she had also very cordial relationship with the other members of the family of the appellant. He has also deposed that he has also no suspicion at all that the appellant had caused the murder of the deceased PW 4 Girija Devi, the step mother of the deceased, has deposed in her evidence that she had accompanied the informant at the house of the appellant on Information of the death of the deceased. She has also deposed that there was cordial relationship between the deceased and the appellants. In her cross-examination she has further deposed that the appellants have never demanded any dowry from the deceased. Both the witnesses are also conspicuously silent in their evidence regarding any torture perpetrated on the deceased in her matrimonial home soon before her death. PW 5 Bhuneshwar Mistry is a resident of village Chutiaro of the appellant and he is the father of the husband of the sister of PW 4 Girija Devi and he is closely related with the informant. He has deposed that the deceased had a very cordial relationship with the appellants in her matrimonial home. PW 1, though a resident of village Behri 8 or 9 Kms. away from the PO village is the cousin of the informant and he has deposed to have met the deceased a few days prior to her death. PW 1, also does not say that the deceased had ever made any complaint to her regarding any torture perpetrated on her in her matrimonial home by the appellants for the demand of dowry. PW 6, a resident of village Sakhiya, has deposed that he has knowledge of the fact that the appellants had never made any demand of dowry from the informant. PWs 7. 4 and 5 have been declared hostile by the prosecution. It is pertinent to mention here that there was no reason for the prosecution to declare them as hostile witnesses in this case, in view of the fact that there was no averment at all in the fardbeyan of the informant regarding treating the deceased with cruelty for or in connection with demand of dowry. However. PW 3 Triveni Rana, brother of the informant has deposed that there was always a quarrel between the deceased and her appellant husband for demand of dowry and her appellant husband always used to demand money as dowry. He has deposed that the appellants used to treat the deceased with cruelty when the said demand was not fulfilled which had led to a Punchayati and an agreement was reduced into writing as per the verdict of, the Punchayat PW 3 has further deposed that the deceased had also sent two letters to him in which it has been stated that the appellants used to demand money from her as dowry. He has further deposed that there was a promise by the informant to pay Rs. 30,000/- as dowry on the eve of the marriage of the deceased, but a sum of Rs. 16,000/- was only paid to appellant Ajit Rana and a sum of Rs. 14,000/- was still due to be paid which could not be given to the appellants due to the inability of the informant and for that there was quarrel between the couple. PW 2 Bhuneshwar Rana, an agnate of the informant, has also deposed that the deceased has been done to death due to the non-fulfillment of demand of dowry. It is pertinent to mention here that the two letters purported to be written by deceased to PW 3 are the best evidence to prove the case of the prosecution but it is queer enough as to why these letters were not brought on the record. These letters are very relevant in this case to establish the fact of demand of dowry by the appellants and also for treating the deceased with cruelty in respect thereof. No explanation has been brought on the record as to why those letters have been suppressed in this case. There is also no evidence on the record to establish the fact that there was a Panchayati in respect of the dispute between the informant and the appellants regarding the demand of dowry and the verdict of the Panchayat having been reduced into writing. No person participating in the said Panchayati had also taken oath in this case. Therefore, the evidence of PW 3 and PW 2 lacks credence in respect thereof. Furthermore, the testimony of PW 3 and PW 2 stands contradicted as per the evidence of PW 7 read with PWs 4 and 5.
However, PW 3 and PW 2 in their further cross-examination on recall have given a death nail to their evidence regarding the torture on the deceased for the fulfillment of demand of dowry. PW 3 and PW 2 in the concluding portion of their cross-examination have specifically deposed that the deceased had a very cordial relationship with her appellant husband and the other appellants. PW 2 has also deposed that the marriage of the deceased was performed with appellant Ajit Rana about 15 or 16 years prior to the occurrence. It, therefore, appears from the evidence of the witnesses of the prosecution referred to above that there is no legal evidence on the record that the deceased was treated with cruelty in her matrimonial home prior to her death for the fulfillment of demand of dowry. There is neither averment in the fardbeyan of the informant nor any legal evidence on the record in respect thereof. There is also no definite evidence on the record about ill treatment to the deceased at any time having immediate proximity to the date of the death of the deceased on 29.5.1998 and in this view of the matter, the basic requirement of cruelty or harassment soon before the death is absent in this case for the applicability of Section 304B of the Indian Penal Code. The ratio of the case of Chando Devi (supra) and the State of Rajasthan (supra) relied upon by the appellant has their application in the facts and circumstances in this case. It is equally pertinent to mention here that there is no ocular evidence of any natural, competent and independent witness on the record to give an inkling of the fact that the appellants have committed the murder of the deceased and thereafter thrown her dead-body in the well. The circumstances emanating as per the evidence on the record also do not support the fact that the appellants have committed the murder of the deceased. There is also evidence on the record that the appellant Ajit Rana was not present in his house on the day of the occurrence. Therefore, there appears no substance in the prosecution case that the appellants had caused the murder of the deceased and thrown her dead-body into the well. The ingredients to constitute the offence under Section 304B are not at all established by acceptable evidence on the record and in this view of the matter the death of the deceased in this case cannot be called as dowry death. The learned Court below did not at all meticulously scrutinize and scan the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants under Section 304B of the Indian Penal Code.
11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellants are found not guilty for the offence under Section 304B of the Indian Penal Code and they are, accordingly, acquitted. Appellants Dwarika Mistri and Budhni Devi are discharged from the liability of their bail bonds. Let appellant Ajit Rana be set free forthwith, if not wanted in any other case.