Rajiv Kumar Hardeo Prasad vs State of Jharkhand

This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 12.7.2006 and 13.7.2006 respectively,

passed by the Additional Sessions Judge No.-1, Sahibganj in S.C. case No. 62 of 2005, whereby, the appellant was convicted under section 302 of the

Indian Penal Code and sentenced to undergo R.I. for life with a fine of Rs. 25,000/- and in default of which he was further directed to undergo R.I.

for six months. He was further convicted and sentenced to undergo R.I. for a period of two years for the offence under section 498A of the Indian

Penal code with fine of Rs. 5,000/- in default of which to undergo R.I. for a period of fifteen days. However, all the sentences were directed to run

concurrently.

The case of the prosecution as would appear from the written report (Ext-1) of informant Kamleshwar Sah is that, the informant got his daughter

Sangeeta Kumari @ Seema married with son of Hardeo Prasad Sah namely Rajiv Kumar and the marriage was solemnized according to Hindu

rituals. As per written report just few days after her daughter’s marriage, her father-in-law, mother-in-law and her husband started putting

pressure upon his deceased daughter to bring dowry from her parents for which they subjected her to torture and cruelty. The informant and his eldest

son had to fulfil the demands from time to time with a view to save his daughter from the torture of the accused. Just six months back before the

incident father-in-law, mother-in-law and husband of her daughter demanded Rs. 60,000/- . Then Rs. 55,000/- was paid by the informant’s eldest

son whereas he himself paid Rs. 5,000/- to the aforesaid accused persons. Despite fulfilment of such demand, behavior of the accused did not change

and their demand for more money continued. It is further said in the written information that on 4.10.2004, his daughter told him on phone to send the

money immediately otherwise they would kill her. The informant told his deceased daughter on phone to take time from the members of her in-laws

and the money would be arranged. On 6.10.2004 at about 1:30 a.m. the informant’s elder son called him on phone and told him that he was calling

from Sahibganj and he informed that Seema had been killed by her in-laws. The informant along with his wife and daughter rushed to Sahibganj and

reached his Samdhi’s residence on 7.10.2004 at 8 a.m. There he found the dead body of his daughter lying on the verandah of the house. When

he enquired, his son told him that husband of the deceased Rajiv Kumar had informed him on phone at 9:30 p.m. regarding the ailment of Seema and

on hearing the same his son immediately rushed to Sahibganj and found Seema dead in her in law’s house. Lastly in the written report informant

said that his daughter was killed by the accused for dowry in the night of 6.10.2004 in a well-planned manner.

On the basis of written report of informant a criminal case being Sahibganj (Town) P.S. case no. 141 of 2004 u/s 304B/34 IPC was registered

against the accused persons. On completion of investigation, charge-sheet was submitted and cognizance of the offence was taken. The case was

committed to the court of Sessions for trial. Charges were framed against the accused persons under sections 302/34,201/34 and 498A/34 IPC and

explained to the accused persons to which they pleaded not guilty and claimed to be tried.

 Trial was conducted, witnesses were examined and at the conclusion of trial, the accused-appellant was convicted and sentenced as aforesaid.

Hence, this appeal.

The Prosecution examined altogether thirteen witnesses to prove its case. The informant died and hence he could not be examined during trial.

PW.1 Manoj Kumar is the brother of the accused-appellant Rajiv Kumar. He deposed that the deceased Sangita Kumari @ Seema who happened

to be the wife of his younger brother Rajiv Kumar was married with him on 26.11.96 and she died on 6.10.2004 without any ailment. He further

deposed that inquest report was prepared in his presence on which he put his signature. She died in her in laws’ house.

P.W.-2 Renubala is sister-in-law (bhabhi) of the appellant. She deposed that the deceased Sangita Kumari died on 6.10.2004 after shutting the door.

In her cross-examination she deposed that Seema was hanging in her room and she was brought down by family members and neighbours.

P.W.-3 is Puspa Devi, she is sister-in-law (bhabhi) of the appellant. This witness deposed that the deceased died due to hanging. She hanged

herself by using a box and her dead body was hanging beside the box . She hanged herself with the help of dhoti which belonged to Rajiv, her

husband. She further deposed that they saw her hanging at 8:30 p.m.

P.W. 4 Rita Devi deposed that the deceased Sangita was her choti gotni. She further deposed that her behaviour among the family members was

cordial and she was very calm.

P.W.5 Aditi Dipankar is the daughter of the deceased as well as accused and a child witness. Learned trial court found her competent to testify.

She deposed that she now lives with the elder mummy. Previously, she used to live with her mother. On the date of incident she was sleeping with her

mother. Relationship between her mother and father was good. She was declared hostile. She further deposed in cross-examination that she saw her

mother hanging, and her chacha and chachi brought the body down.

P.W.6 Madan Kumar Jha is the witness to the inquest report. He is the friend of the appellant.

P.W.8 is Kamla Sah, she is the mother of deceased. She deposed that after marriage, her daughter was harassed by her husband and father-in-

law for money. This was informed by her daughter to her elder brother, Yashwant Kumar who was B.D.O. posted in Boraijor, District Godda. Rs.

15,000/- was demanded out of which Rs. 12,000/- was given to the deceased by her son. Prior to payment of Rs.12,000/- her son had given Rs.

60,000/- to her son-in-law for business. She further deposed that information regarding death of her daughter was received by her son. She received

the news about the death of her daughter from her son. Thereafter they had gone to Sahibganj and seen the dead body of her daughter. She cannot

say how she died, but saw blackish marks on her neck.

 In her cross-examination, she deposed that her daughter informed her about the torture by telephone. In para 15 of her cross-examination she

deposed that to find out about the torture meted out to her daughter, she was going to send some one, but her daughter told her not to do so since she

was already defeated and on next day she died. Â

P.W.-9, Rashmi Kumari is the elder sister of the deceased. She deposed that when her sister used to come from her in-laws place to her paternal

home, then she used to complain about her husband, father-inlaw and mother-in-law and say that they are demanding money. Their demand was met

by her brother and father. She further deposed that on 4.8.2004, while crying on the phone her sister had informed her mother that her in-laws were

giving her much trouble. Mother had on phone itself said that she will send younger brother and told her to come alongwith her husband and daughter

to Bhagalpur but Sangita told her not to send her brother, and said that she would come after ‘jitiya’. On the day of jitiya itself her brother

telephoned her that Sangita had died in her matrimonial home.Then this witness along with her mother and father went to the deceased sister’s in-

law’s place and saw the dead body lying on the verandah and there was marks on the left side of her neck. In her crossexamination in para 8 she

has deposed that 2 to 3 years after marriage, money was demanded from the deceased. In para 13 she said that she saw marks on her neck. In para

16 she deposed that she saw injury mark on the body of the deceased and concluded she was murdered.

P.W.10 Yashwani Kumar, he is elder brother of the deceased. He deposed that his sister was harassed for money by her husband Rajiv Kumar,

her father-in-law and mother-in-law. When he was posted as BDO of Boarijor, then harassment for money became more intense. During his said

posting he used to give money to his sister’s husband from time to time. In this manner he had given to his sister’s husband Rs. 55,000/-. Even

one week before his sister’s death , he had sent Rs. 12,000/- to his sister because his sister had telephoned that she was being pressurized for

money. He further deposed that in the night of 6th October he received a phone call from Rajiv’s house that his sister is very ill, later on his

mother telephoned him that she is unconscious. Then he went to Sahibganj and found the dead body lying on the verandah of his sister’s in-

law’s house. He also saw a deep wound on her neck due to which he felt that her in laws had strangulated and murdered her. He has proved the

written report which was marked as Ext.-1. In his cross-examination, he deposed that, soon after his sister’s marriage the demand for money had

begun. Money was demanded from both his father and him. On the last occasion he had sent Rs. 12,000/- to his sister through one Tun Tun who was

familiar to him.

PW-12 is Archana is the wife of PW-10 Yashwani Kumar and bhabhi of the deceased Seema. She deposed that after marriage, relation of her

nanad Seema with her in-laws was not good as appellant husband demanded money from them. Her father-in-law and husband used to fulfill the

demand of Rajiv. She further said that on getting information of death of Seema, she along with her husband went to Sahibganj. She saw Seema dead.

Her body was kept on verandah. She saw mark on the left side of her neck. She further deposed that her father-in-law had during his life time given a

letter to her which was written and signed by Seema. She proved the three letters which was in the handwriting and signature of Seema which was

marked as Ext. 6,6/1 and 6/2.

P.W.13 is Dr. Deepak Kumar who conducted autopsy on the dead body of the deceased Seema @ Sangita Devi. He found antemortem injuries

on her person:- a linear bruise mark 5â€x2†on the left side of the neck extending from the ½†away from the midline and at the level of thyroid

cartilage up to the back below left ear.

 On dissection extravasation of blood into the subcutaneous tissue under the bruise mark of her neck. The larynx and trachea were congested and

contained frothy mucus. Lungs were congested and bronchial tubes contained frothy blood stained mucus. Right side of the head was full of black

blood and left side is empty. He further deposed that substance used was hard and blunt substance which may be hard pressing substance. He said

time elapsed since death was twelve to twenty four hours from the time of conducting autopsy.

 Doctor had opined that death was due to asphyxia as a result of strangulation which was sufficient to cause death in the ordinary course of nature.

The post-mortem report was prepared and signed by him and marked as Ext.7.

 In cross-examination he said that in a case of strangulation by throttling, finger marks may appear on the neck and this is not a case of strangulation

by throttling. He further said that in case of hanging neck bends on either side normally opposite to knot. There will be wound mark of ligature

obliquely on the neck in the case of hanging. He said that in a case of hanging obliquely placed ligature mark would be found in both side of the neck.

Throttling is always applied by hands and is always pressed on the front side of the neck. In case of throttling there are marks of thumb and fingers.

Length of mark of finger can be more than five inches. Injury caused by finger would be on the both sides of neck.

P.W.11 is Anil Kumar Dwivedi the investigating officer of the case. He has proved the written report of Kamleshwar Sah marked Ext-1. He

inspected the place of occurrence and inspected the room in which the deceased and her husband used to live. He found this particular room

consisting of three doors. He found a bed placed against the wall and also a tin box measuring 3x4x2 feet. He found a rod installed towards the ceiling

of the room. The height of ceiling was around ten feet. He seized one dhoti during investigation. The production cum seizure list of dhoti was marked

as Ext.4. He proved the formal FIR and the inquest report as Ext 2 and Ext.3 respectively. He further deposed that during investigation father of

deceased had given a photo copy of letter written by the deceased. The production cum seizure of the said letters was prepared which was marked as

Ext.5. The letter (photo copy) was marked as Ext.5/1.

 In his cross-examination, he deposed that he inspected the room where it is said that deceased Seema committed suicide. He found a pipe towards

the ceiling and the distance between the floor and pipe was about 10 feet. Below the pipe a box was kept and the distance between the box and pipe

was about 6 feet. A dhoti was also kept there with which it was said the suicide was committed.

 ARGUMENTS ON BEHALF OF APPELLANT:-

Learned senior counsel for the appellant has first and foremost argued that the case is based on the circumstantial evidence only since there are

no eye witness to the alleged offence. Therefore, the allegation and the evidence gathered must be cautiously used in coming to any judicial

conclusion.

Learned counsel for the appellant has pointed out some of the inconsistencies, contradictions or weakness in the evidence of some of the

prosecution witnesses. Firstly, he has referred to the evidence of P.W.2 Renu Bala P.W. 3 Pushpa Devi and P.W.-4 Reeta Devi and submitted that

these three witnesses are sister-in-laws of the appellant and they have not supported the prosecution case. P.W.-2 Renu Bala has deposed that the

deceased Sangita Kumari died after shutting the door of her room. P.W.3 Pushpa Devi has deposed that the deceased died by hanging with the help

of a box and with dhoti of her husband. P.W.-4 is Rita Devi has deposed that the deceased was well behaved and had good relation with all the

members of the family and she died in her inlaws place.

Learned counsel for the appellant further submitted that P.W.5 is Aditi Dipankar, the daughter of the deceased. She deposed that the relationship

of her mother and father was good. She had seen her mother hanging and her uncle and aunty had brought down the deceased. Counsel for the

appellant submitted that even the daughter of the deceased of eight years says that the relationship between her parents were good. She is a child

witness, so her evidence is important and reliable.

Learned counsel further submitted that P.W.8 is Kamla Sah the mother of the deceased. Counsel says that P.W.-8 has not said anything

substantial. This witness has in para 3 deposed that Rs. 60,000/- was given to the son-in-law for business purpose. Counsel says money being loaned

for business between friends or close relatives is not a new thing. The money requested by the appellant’s side or given to them was for business

and not as a dowry demand.

Learned counsel for the appellant has referred to the findings of the learned court below wherein it is indicated that Ext. 6,6/1 and 6/2 are virtually

the personal notes of the deceased in her writing and signature in which she has expressed her apprehension of her death at the hands of her husband

Rajiv Kumar. Learned counsel says that these notes of the deceased is of the year 2001 and the death took place in 2004. The notes are old and as

time changes, man changes, attitudes changes, hence, Ext. 6,6/1 and 6/2 cannot be considered. They are not relevant to be considered as are not soon

before death. Further, these exhibits are inadmissible because they were not placed before him for his defence u/s 313 Cr.P.C. On this point, learned

counsel has relied on the judgment of Sharad Birdhichand Sarda V. State of Maharastra reported in (1984) 4 SCC 116. Learned counsel for the

appellant has also argued that only the vague allegation of torture has been made. Torture has to be alleged by the manner of torture only to say

“tortureâ€​ is not sufficient. The prosecution failed to prove the torture meted out to her. No overt act of violence or torture is there.

Learned counsel further submitted that the evidence of doctor also does not make out a case of strangulation, as whether deceased died of

asphyxia due to strangulation has not been proved. Only linear bruises are there which do not amount to much and there is ligature marks. Counsel has

pointed para 7 of the evidence of the doctor where it is mentioned that there was no mark of violence. Since, medical evidence is not consistent hence,

death has not been opined by the doctor and therefore prosecution has failed to prove homicidal death.

Learned counsel for the appellant further submitted that apart from the aforementioned, the demand of money is itself reflected inconsistently. In

the written report it is stated that demand of money was raised after some days of marriage while in para 8, P.W.9 says demand for money was made

after two-three years of the marriage. Learned counsel said that there was no demand of money and cruelty was not caused to the deceased.

Learned counsel relied on a judgment of Girdhar Shankar Tawade V. State of Maharastra reported in (2002)5 SCC 177. Learned counsel thus

concluded by saying that for all these aforesaid reasons the conviction and sentence of the learned court below cannot be sustained and should be set

aside.

 ARGUMENTS ON BEHALF OF STATE-APP:

Learned counsel for the State, learned APP on the other hand argued that though this is a case of no direct eye witnesses, there is sufficient

circumstantial evidence that P.W.-8 Kamla Sah, P.W.9 Rashmi Kumari and P.W.10 Yashwani Kumar have stated about demand of dowry. P.W.8

the mother of the deceased has in para 2 of her deposition said that after marriage her daughter was harassed by her husband and father-in-law for

money. Her daughter used to tell about this to her son, who was a B.D.O. at Boarijor. The details of amount given are mentioned in para 3 and 12.

She deposed in para 15 that her daughter informed about harassment on phone and that she wanted to send some one to see her daughter, but just

after receiving the information about the harassment, her daughter died on the next day. P.W.9 is the elder sister of the deceased, she has

corroborated the evidence of P.W.8 in para 2 of her deposition. In para 13 and 16 she has deposed about seeing injuries on the body of the deceased.

Learned counsel for the State further submitted that P.W.10 who is the elder brother of the deceased has also corroborated about the demand of

money and harassment meted out to her sister. He deposed that his sister was harassed for monetary demand and when he was posted as B.D.O. at

Boraijor frequently demands were raised and he had given money from time to time and in this way he had given Rs. 55,000/- to her husband. Also

just a week before the death of deceased he had sent Rs. 12,000/- because there was a lot of pressure on her for money. He had seen the dead body

of his sister in the verandah of his sister’s in laws’s house. He noticed deep wound on the dead body of his sister and felt she had been

strangulated by the neck. Regarding the exhibits 6,6/1 and 6/2, learned APP submits that these have been exhibited without objection and they are

good evidence to indicate the state of mind of the deceased as well as the behavior of the husband. There was continuing offence, ultimately

culminating in the death of the deceased.

Learned APP also submits that as per opinion of the doctor death was due to asphyxia as a result of strangulation which is sufficient to cause

death in ordinary course of nature. He has pointed out para 4 of the doctor’s deposition wherein it is said that in the case of hanging neck bends

on other side, normally opposite to knot. He has then pointed out to para 5 of the inquest report and said that there was black marks on the left side of

the neck. So it is a conclusive case of hanging.

Referring to the evidence of the investigating officer learned APP has submitted that it has been argued by the learned defence counsel that the

door was closed, however it is clear from para 2 of the deposition given by PW-11, the investigating officer that the room where the occurrence had

taken place consists of three doors, so it cannot be said that all doors were closed. Finally, he has concluded that for all the aforesaid reasons, and the

fact that death occurred after seven years of marriage the appellant was rightly convicted under section 302 and Section 498A of the Indian Penal

Code. Hence, the judgment of conviction and order of sentence passed by the court below is proper and requires no interference. Â

FINDINGS:

After going through the records and evidences and hearing both counsels the following is observed :-

(i) In this case initially there were three accused including the present appellant. Apart from the present appellant husband herein, the father- inlaw,

mother- in-law were acquitted. As rightly pointed out by the counsel for the appellant, there is no eye witness to the occurrence and it is based on

circumstantial evidence. In this case as many as thirteen witnesses were examined including the doctor and the investigating officer.

(ii) From the evidence of the doctor and prosecution witnesses it is established that death was not under ordinary circumstances and hence, it needs to

be explained. The defence of appellant is that deceased hanged herself. In the memo of appeal appellant has raised the point that doctor ( P.W. 13)

has suppressed the fact that there was ligature mark on both sides of the neck of the deceased. So, the question arises deceased Seema died due to

suicide by hanging or homicide by strangulation . On going through the post mortem report, we find that doctor found ante mortem injury as linear

bruise mark 5â€x1/2†on the left side of the neck. Regarding substance used doctor said substance may be hard pressing substance. Doctor opined

that death was caused due to asphyxia as a result of strangulation. So, this post mortem report has to be tested in light of evidence of prosecution

witnesses and other facts and circumstances. In the inquest report ( Ext.-3) at column no. 5, regarding injury on the body, it is written one black injury

on the left side of the neck. P.W. 8, P.W. 9, P.W. 10 and P.W. 12 have also said in their evidence that when they reached the matrimonial home of

the deceased, they saw the deceased body lying on verandah and they witnessed injury on the left side of her neck. So, doctor rightly came to the

conclusion that strangulation was caused to the deceased by hard pressing substance and hence, he found ante mortem injury of 5â€x1/2†on the left

side of the neck. Hence, doctor opined that death was caused due to asphyxia as a result of strangulation. P.W. 2, P.W. 3 and P.W. 5 said that

deceased died due to hanging but all are related witnesses and P.W. 5, who was a child witness was declared hostile. So, there is no reason to

disagree with the medical opinion of the doctor and hence the death of deceased was homicidal caused by the appellant. Learned counsel for the

appellant has tried hard by pointing out characteristics of death when caused by hanging and when by strangulation but failed to dislodge the doctors

report that very much is definitive about the nature of injury and the reason for it. So the theory of ligature mark was raised by the appellant only to

create impression that deceased committed suicide by hanging only to escape from the charges under section 302 IPC.

(iii) Now from the evidence of the prosecution witnesses PW-8,PW-9 , PW-10 and P.W. 12 it has come that after some time of marriage there was

constant demand of money from the in-laws of the deceased particularly, the husband and father â€"in-law and for which she used to be often or

continuously harassed and threatened.

P.W.-8 Kamla Sah is the mother of the deceased has deposed that her daughter was harassed for money by the father-in-law and her husband. This

was informed by her daughter to her elder brother who had given Rs. 60,000/- and Rs. 12,000/- to the son-in-law. P. W.-8 was further informed by

her daughter about harassment by telephone and also that just the day before her daughter died she was going to send some one to see her, but the

daughter herself had told her not to do so.

P.W.-9 Rashmi Kumari the elder sister of the deceased has also deposed that her sister often complained of harassment for money and the difficult

situation at her in law’s place. She also deposed about the harassment of her sister just the day before her sister died, but her sister had told her

mother not to send anyone.

P.W.10, Yashwani Kumar , the brother of the deceased girl has also deposed about the harassment and difficulties of his sister because of the

demand for money. He deposed regarding his awareness about these monetary demand and harassment . In fact, he has said that after he became

BDO of Boarijor, the demand increased. This demonstrates very well the greedy nature of the appellant i.e. husband of the deceased girl. He has also

deposed to have given Rs. 55,000/- and Rs. 12,000/- to the husband of his sister at different intervals of time. From the evidence of the mother, sister

and brother of the deceased girl it is amply made out that the deceased was continuously harassed and tortured for money by the appellant.

(iv) Ext.-6, Ext.-6/1 and Ext.-6/2 are letters written by the deceased Seema. These letters reveal that deceased had apprehension of her death. Lastly

she died in her matrimonial home.

The judgment in the case of Girdhar Shankar Tawade (supra), relied upon by the appellant is of no help to him because there is concrete

evidences of P.W. 8, P.W.9, P.W. 10 and P.W. 12 regarding demand of money. Another judgment in the case of Sharad Birdhichand Sarda (supra) is

also of no help to the appellant as Ext. -6 , Ext.-6/1 and Ext.-6/2 which are the letters written by the deceased, was admitted without objection and it

cannot be said that appellant was prejudiced due to non-questioning of these letters in his cross examination under section 313 Cr.P.C.

So looking at the evidence of the doctor, letters Ext.-6, Ext.-6/1 and Ext.-6/2 and supported by the evidences of mother, sister and brother of the

deceased about the demand of money and harassment, lends support to the conclusion that the husband of the deceased, who is now the sole

appellant, is responsible for the homicidal death of his wife. Hence the learned court below has rightly convicted the appellant for the offence under

section 302 and Section 498A of the Indian Penal Code.

Therefore, the judgment of conviction dated 12.07.2006 and order of sentence dated 13.07.2006 passed by the Additional Sessions Judge No.-1,

Sahibganj in S.C. Case no. 62 of 2005 is upheld.

Accordingly, this appeal stands dismissed.Â