Lakhan Mahto vs State of Jharkhand

Rongon Mukhopadhyay, J.—This appeal is directed against the judgment of conviction and order of sentence dated 04.06.2004 passed by Shri Ashok Kumar Mishra, Additional District and Sessions Judge(F.T.C.), Koderma in Sessions Trial No. 351 of 1990 whereby and whereunder the appellant has been convicted for the offence punishable under sections 498-A, 201 and 304-B of the Indian Penal Code and has been sentenced to rigorous imprisonment for seven years under sections 304-B of the Indian Penal Code, rigorous imprisonment for seven years under section 201 of Indian Penal Code and a fine of Rs. 5,000/- and in default one year simple imprisonment. However, no separate sentence was awarded for the offence committed under section 498-A of Indian Penal Code.

The prosecution story as would arise from the first information report instituted by Durga Mahto (PW-1) is that the accused persons used to commit torture and cruelty upon the deceased daughter of the informant Basanti Devi and on account of non- fulfillment of dowry, the deceased was done to death. It was alleged in the fardbeyan that the marriage of the daughter of the informant was solemnized two years prior to the incident with the appellant. It has been stated that after marriage for about six months, she was looked after but subsequently there was a demand of Rs. 5,000/- and on account of the same the daughter of the informant was tortured by the accused persons. Subsequently, the deceased was sent to her parental house and after a considerable lapse of time the father-in-law and husband of the deceased had come to her parental house for Bidai which custom was duly solemnized. It is alleged that on Friday the appellant as well as one Prayag Mahto had come to the house of the informant and had stated that the daughter of the informant had fled away from her matrimonial house at about twelve in the night. When the informant reached the matrimonial house of his daughter, some women disclosed that they have come to know that the dead body of the daughter of the informant is in the well of Kartik Mahto. It is further alleged that since there was darkness all around, no efforts could be made for verifying the correctness of the said information and only in the morning when the police came, the dead body was taken out from the well and the informant identified the dead body as that of his daughter and it was alleged that she was murdered and subsequently thrown in the well on account of non-fulfillment of demand of dowry made by her in-laws including the appellant.

On the basis of the fardbeyan of the informant Telaiya P.S. Case No. 234/1989 dated 01.11.1990, was instituted for the offence under sections 304-B of Indian Penal Code and conclusion of investigation led to filing of the charge sheet against the accused persons for the offence punishable under sections 498-A, 304-B and 201 of Indian Penal Code. Cognizance was taken by the learned A.C.J.M., Koderma and subsequently the case was committed to the Court of Sessions where charges were framed for the offence punishable under sections 304-B/34 and 201/34 of Indian Penal Code. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.

The prosecution examined as many as five witnesses in support of its case whereas the defence also examined one witness.

P.W.-1 Durga Mahto is the informant and the father of the deceased Basanti Devi. This witness has deposed that the marriage of the appellant was solemnized in 1987 and although she was kept well for about six months, torture started thereafter on account of non-fulfillment of the demand of Rs. 5,000/- for which the in-laws of the deceased Basanti Devi were pressurizing her for bringing the said amount from her father. It is stated that after a few days after assault and torture, she was thrown out from her matrimonial house. After about one year, the appellant and his father come to his residence and wanted Bidai of his daughter and it was also assured by them that she would be looked after properly in future. Bidai was completed but after five days, this witness could come to know from the appellant that his daughter had fled away from her matrimonial house the previous night. Immediately on rushing to Gumo Basti some villagers had informed this witness about the dead body in the well of Kartik Mahto but since darkness had fallen, nothing could be detected. This witness has further stated that next morning the police had come and taken out the dead body from the well which was identified by this witness as that of his daughter. It has been stated in his deposition by this witness that his daughter used to disclose that her in-laws were demanding Rs. 5,000/- as dowry.

P.W.-6 Ritua Devi is the mother of the deceased and she has also deposed on similar lines to that of P.W.-1. She has further stated that there was a demand of Rs. 5,000/- by the in-laws but the same could not fulfilled and just about two months prior to the incident Basanti Devi was thrown out from her matrimonial house. It has also been stated that Bidai was made in the month of Sawan at the instance of Lakhan Mahto (Appellant), Churaman Mahto and Prayag Mahto. It has further been stated by this witness that she had gone to the matrimonial house of her daughter to meet her and there also the appellant had demanded Rs. 5,000/-. This witness has also stated that when Lakhan Mahto and Prayag Mahto come to her residence and disclosed that she had fled away at night, she had gone to her in-laws place where on the subsequent day she could see the dead body of her daughter. It has been stated that marks of assault was there on the person of the deceased.

P.W.-3 Dropadi Devi has submitted that on the date of occurrence she found the appellant assaulting his wife with stick. It was submitted that the courtyard of the appellant and this witness is common and that the assault was taking place in the courtyard.

P.W.-4 Kailash Mahto had categorically stated that he was not present in the village when the incident had taken place.

P.W.-5 Dr. Imran Ahmad Khan has conducted autopsy on the body of the deceased and had found the following injuries on her person:

"(i) Blister peeling off skin all over the body due to decomposition.

(ii) Blister on back and abrasion like skin of back due to decomposition.

(iii) Peeling of skin of both arms due to decomposition.

(iv) Tongue swelling and protruded due to decomposition.

(v) Both lips closed and swollen due to decomposition.

(vi) Porrugated skin of both feet."

The doctor had opined that "no definite opinion about the cause of death can be given".

The defence has examined one witness i.e. D.W. 1- Sudama Tiwari, who has stated that the appellant did not use to assault the deceased.

The appellant was examined under Section 313 of Cr.P.C. who denied the entire allegations made against him.

Heard the learned counsel for the appellant and learned counsel for the State.

The learned counsel for the appellant has submitted that the Investigating Officer of the case was not examined and such non-examination has caused great prejudice to the defence. It has been submitted that in fact a Sanha was lodged by the father of the deceased before Koderma P.S., but nothing could be elicited by the defence in view of the non-examination of the Investigating Officer. It has also been submitted by the learned counsel for the appellant that the appellant being the husband had informed his in-laws with respect to disappearance of his wife and the conduct of the appellant was blemishless and that the learned trial court did not consider the said fact while recording the order of conviction against the appellant. It has further been submitted that no injuries were found on the person of the deceased, which belies the prosecution case and in fact the doctor had opined that there was no definite opinion with respect to the cause of death of Basanti Devi. It has also been submitted by the learned counsel for the appellant that P.W. 2, the mother of the deceased, had stated in categorical terms in paragraph 12 of her evidence that there was no complain of demand of dowry and an alternative argument has been put forward by the learned counsel for the appellant that the appellant has suffered the rigours of a criminal case for so many years and if in case the appellant does not succeed, the sentence may be restricted to the period already undergone by him.

Learned counsel for the State, on the other hand, has submitted that there was a consistent demand made by the appellant, which finds supports from the evidence of P.W. 1 and P.W. 2 and on account of non-fulfillment of the said demand, she was assaulted, which has even been fortified by the evidence of P.W.-3. It has also been submitted that the conduct of the appellant itself is suspicious in view of the fact that although the wife of the appellant was thrown into the well but the appellant altogether created a new story that it was the deceased, who had fled away from her matrimonial house at night. Since the ingredients of Section 304-B of the Indian Penal Code has been fulfilled, as such the learned counsel for the State submits that the appeal preferred by the appellant deserves to be dismissed.

After hearing the learned counsel for both the parties and after going through the Lower Court Records, I find that in the fardbeyan of the informant (P.W.-1), specific allegation against the appellant has been levelled with respect to demand of Rs. 5,000/- for which the appellant used to presurrize the deceased to bring the said amount from her father. It further appears that P.W. 1 and P.W. 2 have given a consistent evidence with respect to demand of Rs. 5,000/- as well as torture and assault meted out to the deceased Basanti Devi. The contention of learned counsel for the appellant that non-examination of the Investigating Officer has greatly prejudiced the defence but in view of the consistent evidence available on the record pointing to the guilt of the appellant such non-examination of the Investigating Officer cannot be said to be fatal to the prosecution case. It is to be seen as to whether the allegations against the appellants, which have been proved in course of the trial, fulfill the ingredients required for securing the conviction under Section 304-B of the Indian Penal Code. In this context, reference may be made to the case of Kashmir Kaur and Another Vs. State of Punjab, wherein the principles, which need to be satisfied for convicting an accused under Section 304-B of Indian Penal Code, has been enumerated and which read as under:

"17. From the above decisions the following principles can be culled out:

17.1. To attract the provisions of Section 304-B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

17.2. The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.

17.3. Such death occurs within seven years from the date of her marriage.

17.4. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

17.5. Such cruelty or harassment should be for or in connection with demand of dowry.

17.6. It should be established that such cruelty and harassment was made soon before her death.

17.7. The expression "soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence.

17.8. It would be hazardous to indicate and fixed period and that brings in the importance or a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act.

17.9. Therefore, the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate or live link between the effect of cruelty based on dowry demand and the death concerned. In other words, it should not be remote in point of time and thereby make it a stale one.

17.10. However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.

17.11. Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B.

17.12. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B were not satisfied.

17.13. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients are satisfied it will be called "dowry death" and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence."

As per the version of prosecution, the marriage was solemnized in 1987 and the death occurred within seven years of the marriage. Consistent evidence on the part of P.W. 1 and P.W. 3 reveals that there was demand of Rs. 5,000/- and for non-fulfillment of which, the deceased was subjected to torture and harassment soon before her death. The dead body of the deceased was found in the well of Kartik Mahato, which was an unnatural death. Nothing has been put forward by the appellant in course of the trial to disbelieve the version of prosecution and the appellant being the husband of the deceased Basanti Devi and the ingredients required for securing the conviction under Section 304-B of the Indian Penal Code having been fulfilled and which has also been considered by the learned trial court no interference in the impugned judgment is warranted.

Learned counsel for the appellant has placed much reliance on the conduct of the appellant so as to highlight the fact that the appellant did not have any hand in the commission of the offence. He while placing reliance in the judgment of Bakshish Ram and Another Vs. State of Punjab, has submitted that the opinion of the doctor and the fact that the dead body of the deceased was found in the well could not rule out the possibility of accidental death. On perusal of the judgment referred to above, it appears that in the said case, the cruelty or harassment in relation to demand of dowry done before the death was not proved and only evidence was the evidence of hearsay witness of the murder of the deceased. The facts of the present case is otherwise in as much as the witnesses have supported the factum of demand and torture and ill-treatment at the hands of the appellant, which was immediately before her death and in such circumstance, the judgment cited by the learned counsel for the appellant is not applicable in the present case. In the case of Pyari Mandal and Ors. v. State of Bihar (now Jharkhand) reported in 2005 Cr. L.J. NOC 25 (jhr.), the same was with respect to general allegations of demand of dowry and no complaint was made by the deceased about such demand. The order cited by the learned counsel for the appellant also is not applicable for the simple reason that the facts of the present case as referred to above are quite different to that of the order cited by the learned counsel for the appellant.

Learned trial court while convicting the appellant has properly considered and appreciated the entire materials available on record and there is no error or infirmity in the said judgment so as to reverse the order of conviction against the appellant.

So far as the alternative contention of the learned counsel for the appellant is concerned, it would be apt to refer to the judgment in the case of State of Madhya Pradesh Vs. Bablu, , which is quoted herein below-

"18. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.

In the instant case, as noticed above, the High Court in a very casual manner reduced the sentence of the accused to the period already undergone merely on the ground that the accused is first offender. If such a view is taken, the accused, who commit such offence, will be emboldened and repeat such crime, which is totally detrimental to the society."

In such circumstances, when the offence committed by the appellant has been convincingly proved and since the offence is serious is nature, no benefit can be advanced to the appellant for restricting his sentence to the period of custody already undergone.

In view of the totality of the circumstances, both factual and legal, as enumerated above, I do not find any merit in this appeal. The appeal, accordingly, is dismissed. Since the appellant is on bail, he is directed to surrender forthwith before the learned trial court to serve out the rest period of his sentence.