Baiju Tudu @ Benga Tudu & Ors. vs The State Of Jharkhand

It is here pertinent to mention, at the very outset that appeal preferred by Thotha Tudu stood abated vide order dated 18.11.2021.

Heard the arguments of learned counsel for the appellants and learned P.P.

The instant criminal appeal is preferred being aggrieved and dissatisfied with judgment of conviction dated 22.03.2004 and order of sentence dated 24.03.2004 passed by learned Additional Sessions Judge, F.T.C.-II, Deoghar in Sessions Case No. 173 of 1998 whereby and whereunder, the appellants along with deceased appellant have been convicted for the offence under Sections 304B/34 of the IPC and sentenced to undergo R.I. for seven years under Section 304B of the IPC.

The factual matrix giving rise to this appeal is that the informant solemnized marriage of his daughter Fulmani Soren (since deceased) about one year prior to the occurrence with Munna Tudu son of Thotha Tudu in accordance with prevailing custom of his community. It is alleged that at the time of marriage, he has given household utensils, 10 Tola Silver Ornaments while one milch Cow and a cycle was also agreed by the informant to be delivered later on. It is further alleged that for the milch cow and a cycle, his son-in-law and samdhi (father-in-law of the deceased) frequently used to come to his house for fulfillment of the said demand otherwise they will leave his daughter. It is further alleged that his daughter was also being assaulted frequently by her husband and in-laws and the informant made several attempts for going to matrimonial village of his daughter and forbade them from harassing and assaulting his daughter and the informant assured that he would manage to deliver a milch cow and a cycle but the accused persons did not stop torturing his daughter on account of non-fulfillment of a milch cow and cycle as agreed by the informant to be delivered to the accused persons as dowry. It is further alleged that on 17.05.1998, informant along with his family members was sitting in his house, meanwhile, his brother-in-law Jhari Marandi and his son Badan Marandi came to his home at about 10PM and told that his daughter Phulmani Soren has died and her dead body is lying near Railway Track of village Bhalsindhiya. The informant along with his co-villagers Suraj Soren, Ragda Soren and his brother Ranglal Soren went to Jasidih Railway Police Station on 18.05.1998 at about 10AM, when, he came to know that his brother-in-law Somra Marandi had gone to village Balsindhiya along with police personnel and the dead body of his daughter arrived at about 2:30- 3:00 pm and saw that his daughter has sustained injuries on her head and her body was cut in two pieces from the waist. It is further alleged that informant came to know from his brother-in-law that on 16.05.1998, in the evening, Phulmani Soren was assaulted by his husband, father-in-law, mother-in-law and brother-in-law when she fled away from the house and came under the running train and died.

On the basis of statement of the informant, Jasidih P.S. Case No. 89 of 1998 was registered for the offences under Sections 304B/201 of the IPC against the accused persons.

After completion of investigation, charge sheet was submitted against above accused persons under Sections 304B/201 of the IPC.

After taking cognizance, the case was committed to the Court of Sessions, where Sessions Case No. 173 of 1998 was registered. The accused persons pleaded not guilty and claimed to be tried.

In the course of trial, altogether 8 witnesses were examined by the prosecution.

P.W.-1 Badan Marandi

P.W.-2 Jhari Marandi

P.W.-3 Somera Marandi

P.W.-4 Dulu Marandi

P.W.-5 Fakua Marandi

P.W.-6 Jata Soren (informant)

P.W.-7 Dr. Raman Kumar

P.W.-8 Mahendra Prasad Singh (I.O.)

C.W.-1 Bhola Prasad Yadav (Court Witness)

Apart from oral testimony, documentary evidence has also been adduced by the prosecution.

Ext.-1 Post-Mortem Report

Ext.2 Fardbeyan

Ext.3 Formal F.I.R.

Ext. ‘X’ Photo Copy of Inquest Report

On the other hand, the case of defence is denial from occurrence and plea of innocence and false implication and altogether 4 witnesses were examined by the defence:-

D.W.-1 Ramdeo Yadav

D.W.-2 Sarju Marandi

D.W.-3 Kaila Tudu

D.W.-4 Sharawan Kumar

Apart from oral testimony, documentary evidence has also been adduced by the defence.

Ext. A Order Sheet of U.D. Case

Ext. B Death report issued by Station Superintendent, Jasidih

After conclusion of the trial, impugned judgment and order of conviction and sentence has been passed by the learned trial Court, which has been assailed in this appeal.

Learned counsel for the appellants has argued that as per trend of oral testimony of witnesses, particularly, the informant (P.W.-6), there is specific allegation against the husband alone who along with his father (Thotha Tudu, since deceased) used to come to the house of informant and persistently demand a Milch Cow and cycle which was agreed to be delivered later on. The physical assault and cruelty meted with the deceased has also been attributed against the husband alone and there are general and omnibus allegation against the mother-in-law (appellant no. 3) and brother-in-law (appellant no. 1) who have no concern with the cycle or milch cow and family affairs of the deceased. There is no allegation at all against the mother-in-law as to what specific overt act was committed by her against her daughter-in-law (deceased) amounting to cruelty. Similarly, no such allegation has been made against appellant No. 1 who happens to be brother-in-law of the deceased. It is further submitted that the deceased herself went out from the matrimonial home on 16.05.1998 and she was being searched by her husband and other family members, thereafter, her dead body was found near the railway track cut in two pieces, therefore, unnatural death was lodged on 17.05.1998. The investigation of the UD case was going on, in the meantime, due to grudge and anger, the father of the deceased lodged F.I.R. on 20.05.1998 imputing false allegation of demand of dowry and consequent torture meted to the deceased which resulted in unnatural death.

On the other hand, learned P.P. appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the appellants and submitted that the learned trial Court has very wisely and aptly analyzed, appreciated and apprised with the oral testimony of the witnesses available on record and also in view of the fact that no rebuttal evidence has been adduced by the defence nor any valid explanation about unnatural death of the deceased was given while she was in their custody and has died and the learned trial Court has rightly invoked the presumption under Section 113B of the Indian Evidence Act against them and convicted all the accused persons who have committed dowry death in a concerted manner in furtherance of their common intention. Therefore, there is no illegality or infirmity in the impugned judgment calling for any interference in this appeal, which is devoid of merit and fit to be dismissed.

I have gone through the record along with the impugned judgment in the light of rival contentions raised on behalf of the parties.

The sole point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellants suffers from any error of law, which requires any interference in this appeal”?

Before imparting my verdict on the above point, it appears necessary to take brief resume of ocular testimony of witnesses examined in this case. P.W.-1 Badan Marandi has deposed that in the morning at about 7.00 A.M., he was going to dig telephone pit along with some persons who told him that a dead body was lying on the railway line in front of village Bhalsuniya. He identified the dead body of the deceased as her maternal sister Phulmani and saw injury in her head. Thereafter he informed his maternal uncle Jata Soren (informant) about the occurrence. He has further stated that the in-laws of Phulmani used to beat her for not giving cow and cycle in dowry.

In his cross examination, he has stated that village Bhalsuniya is at a distance of 2 K. M. from his village and he had gone there three times at the house of Thotha Tudu and last time he had gone there one month before the death of Phulmani. He has further stated that he does not know name of any person of that village and on that day he was being taken by the contractor Ramesh Yadav for cutting of soil. He has further stated that he did not inform at the Sasural of deceased. He has not seen her sister being beaten. He has further stated that his sister used to tell his mother but not to him and his maternal uncle has told him that cow and cycle has still to be given by way of dowry. He had given his statement before the inspector 2-3 days after the occurrence stating that the accused killed her for not giving cow and cycle in dowry. He has further stated that Phulmani had gone to his house three days before her death and met him and also stayed two days at his house and again went to Naiher. He has further stated that on seeing dead body from the Railway line he had told to Jhari Marandi first and did not go anywhere to inform. The police had not asked him about this occurrence.

P.W.-2 Jhari Marandi has stated that on the day of occurrence he was going to dig telephone pit to village Bhalsuniya and it was Sunday. Some persons were assembled near Bhalsuniya and when he went there to see them he saw a dead body which was of the daughter of Jata Soren, his brother in-law. He went to inform the father of the deceased about the dead body and from there his son and his brother-in-law went to kokaribagh to inform Somar Marandi. He has further stated that he had gone to the Sasural of deceased two times when she was alive. The deceased used to tell that in-laws beat her for not giving cycle and other things by way of dowry.

In his cross examination, there is nothing to elicit any evidence.

P.W.-3 Somara Marandi has stated that deceased was his bhagni. On 18.5.1998, he saw her in dead condition on the railway line between Tulsitanr and Lahawan. He has further stated that the information about the same was given to him on 17.5.98 at night by Jata Soren and Jhari Marandi. She was married with Munna Tudu at village Bhalsuniya and she was alright upto one month after the marriage but thereafter her husband and other accused persons started demanding cycle, watch and cow etc by way of dowry and they used to torture her for the same. He was told about the demand and torture by the deceased.

In cross examination, he has stated that he never went to his niece’s in-laws’ house after her marriage and after marriage, his niece came to his house four to five times. She used to visit her parent’s home every 10-15 days or every month. The deceased had complained about dowry demands after one month of marriage.

P.W.4 Dulu Marandi has stated that deceased happened to be his bhagni. The occurrence took place on 16.5.98 and they got the information about the same on 17.05.98. Jata and Jhari Marandi went and told him on 16.5.98 at about 10.00 P.M. at night. He has further stated that they had stated that deceased was killed and thrown by her husband and they saw her dead body in cut condition on the railway line between Tulsitanr and Lahawan. One two Khalasi were present there when he went to see the dead body. Her husband killed her due to dowry.

In cross examination, he has stated that he had gone at the Sasural of Phulmani one two times. He had gone at the place of occurrence next day at about 12.00 o'clock alongwith Sangram Marandi, Samara Marandi and Dulu but he did not inform at her Sasural. He has further stated that he had never given statement before the police. He does not know the name of the husband of deceased. In further cross examination he has stated that the accused had not demanded dowry from the deceased in his presence.

P.W.5 Fakuwa Marandi has deposed that Fulmani was married 1 year before the occurrence with Munna Tudu of village Bhalsuniya and after the marriage she used to visit her Maternal uncle at Konkaribagh. Jhari Marandi and Badan Marandi had informed that the accused Munna Tudu and others killed Phulmani and plotted on the railway line. Hearing this, they went near the railway line in West of village Bhalsuniya and saw the dead body of deceased in the middle of railway line. The thigh was cut and there was head injury. After some time police reached on the place of occurrence and took away the dead body in Deoghar hospital for the post mortem. The accused used to demand cycle and watch and used to torture her for the same. This fact was told to them by the deceased Phulmani.

In cross examination, he has stated that deceased happened to be his bhagni and she had visited his house two times after the marriage. There was injury on the head of Phulmani and the blood was also present on the cloths and he stayed there for one and half hours. Police had recorded his statement one day after the occurrence. He has further stated that Phulmani had told him about the demand of watch and cycle by her-in-laws but he had not told the same to anyone else. He had also gone to Deoghar for the post mortem alongwith the dead body. He has further stated that he had not said to the police that Phulmani had told him about the demand of cycle and watch.

P.W.6 Jata Soren (informant) has stated that Phulmani Soren was his daughter who was married with Munna Tudu, son of Thota Tudu of village Bhalsuniya. He has further stated that he had given pots and ornaments of silver of 20 bhar and had promised to give cycle, watch and cow later on. But he could not give the same because his wife died. The accused told him that they would not keep his daughter if they were not given the same articles and they always quarreled with his daughter. He has further stated that deceased Phulmani had stated to his brother-in-law Jhari Marandi to tell him ( Jata Soren ) to give cycle, watch and cow otherwise the accused would kill her. On account of quarrel the deceased Phulmani lived for 8-10 days in the house of his brother-in-law Jhari Marandi and thereafter his brother-in-law had carried her to his home and she lived two months at his house and thereafter his son in-law came and quarreled with him and took away her to his house and thereafter she lived there 6 days and after that the accused Munna Tudu killed her. Jhari Marandi and Badan Marandi informed him that the accused Munna Tudu had killed Fulmani and threw the dead body on the Railway line. He has further stated that when the police brought the dead body at Jasidih police station he saw the same whose lower portion from the waist was cut and there was injury caused by Tangi on the head. He gave his statement before the police and his fardbeyan was recorded and he put his thumb impression on the same.

In cross examination, he has stated that during the settlement of the marriage of his daughter, he had gone to village Bhalsuniya alongwith his brother where the villagers of that village were also present but he can not tell their names. At the time of the settlement of the marriage nothing was talked about the things to be given and the marriage was performed, in accordance with the Adiwasi custom. He has further stated that the matter of giving cycle, watch and cow was settled in the presence of the villagers at the time of settlement of the marriage. He has further stated that his daughter was married in the month of Baisakh and it was settled in the month of Aghan and after marriage she had gone to Sasural where she stayed about 10 months and when she returned, his son-in-law was accompanied by her and stayed two days in the village. He had gone at the Sasural of his daughter 3 times and every time he met his Samadhi, Samadhin and son-in-law and he was given full respect there. He has further stated that 7-8 months after the marriage his son-in-law again demanded cycle and watch from Jhari Marandi and 2-3 months thereafter his daughter went at the house of Jhari Marandi. He has further stated that he saw the dead body of his daughter on Jasidih Railway Police Station and thereafter, he had given his fardbeyan in Jasidih P. S. He has further stated that he had stated before the police that when he saw her dead body there was injury of Tangi in her head. At the time of post mortem his son in-law and Samadhi were also present there along with the villagers. In further cross examination, he has stated that the accused had illicit relation with his sister-in-law and consequently he killed the deceased.

P.W.7 Doctor Raman Kumar has deposed that on 18.05.98, he was posted as Civil Assistant Surgeon at Sadar hospital, Deoghar and on that day he held the post mortem on the dead body of Phulmani Soren and found the following ante mortem injury of her person :-

Both lower limbs were separated from body at mid thigh level by lacerated injuries with blood clots and retraction of muscles.

Both upper thighs were crushed to heap level, bones also crushed into pieces.

One lacerated cut 2" x 1" on posterior part of the skull.

On dissection- under lying bone was intact.

On dissection of skull -brain and membranes were pale.

On dissection of chest-heart was empty, lung-pale

On dissection of abdomen -viscera was pale and stomach contained undigested food.

In his opinion the death was due to haemorrhage and shock caused by above mentioned injuries which were due to heavy hard blunt substance, may be due to run over of the train. The injury caused on the skull may be due to assault by the blunt portion of the tangi, but that was not fatal. He has proved the post-mortem report marked as Ext.-1.

P.W.8 Mahendra Prasad Singh has deposed that on 20.5.1998 he was posted in Jasidih P.S. and registered the case on the fardbeyan of Jata Soren which was recorded by o/c Navin Sharma and thereafter he was given the charge of investigation and he again recorded the statement of the informant and the witnesses present and departed for the place of occurrence which is situated in village Bhalsuniya and is the house made of tiles with entry in the north side. The main entry of his house is in north. There is a room in the Court yard having west side as its entry and there is also a room in the east side. There is varandah in the west side of the Court yard. In the West of place of occurrence there is house of Saryu Marandi, in the north there is house of Kanhaiya Hembram, in the South there is house of Kaila Tudu and in the east there is house of Karmu Murmu. He recorded the statement of the villager Bhalsuniya and thereafter he went at the second place of occurrence of this case that is situated in between Tulsitanr and Laheben railway station in the midst of railway line. He has further stated that first this case was registered by G.R.P.Jasidih as U.D. Case No.08/98 and G.R.P. had got the dead body sent for the post mortem. Thereafter he had arrested the accused persons from village Bhalsuniya and after completing the investigation he submitted the charge sheet in this case.

In cross examination, he has stated that the fardbeyan was recorded on 20.5.98 and the charge of investigation was taken over by him on the same day and he inspected both the place of occurrence on the same day and recorded the statement of the villagers having houses around the first place of occurrence namely Suraj, Kanhaiya and Kaila. They had stated that there was no custom of dowry and the bride groom party itself meets the expenses of the marriage and they denied any type of occurrence with deceased Phulmani. When he went to the other place of occurrence he did not record the statement of any witness. He has further stated that inquest report is also sent alongwith the dead body chalan. He cannot say who prepared the seizure list and inquest report. He has further stated that U.D.Case was registered on 15.5.98 before the case at the police station was registered. He has further stated that Badan Marandi had stated before him that for a cycle and cow, accused had killed the deceased and the witness Somara Marandi had stated before him about the demand of cow and watch.

C.W.1 Bhola Prasad Yadav is a formal witness and has proved the writing and signature of o/c N.P.Sharma on the fardbeyan of Jata Soren (Ext.2). He has further proved his signature on formal F.I.R. (Ext.3). He has further proved the writing and signature of B.Tirki of rail P.S.Jasidih on photo copy of the inquest report that was marked as "x" for identification. In cross examination he has stated that none of the Ext.s was prepared in his presence.

D.W.1 Ramdeo Yadav has deposed that the occurrence took place three years ago. His house stands at a distance of 10-15 feet from the house of Thotha Tudu, the accused. The accused Munna Tudu was married with Fulmani of village Alakjara and after the marriage she came to Sasural. He had not heard any torture or demand of dowry from her. Fulmani had got cut by the train. Police had recorded his statement.

In cross examination, he has stated that he had not gone in the marriage of Fulamni, therefore, he can not say what transaction was made in her marriage or who had attended the marriage. He had known the occurrence one and half hour later after the occurrence took place and he had also gone at the place of occurrence alongwith the villagers.

D.W.2 Sarju Marandi has stated that the occurrence took place 3 years ago and his house stands at a distance of 20 feet from the house of the accused. The accused Munna Tudu was married in Mauza Alakzara but he had not attended the marriage and after the marriage accused Munna Tudu’s wife came to Sasural. He has further stated that he had not seen any accused person doing Marpit with the deceased Fulmani nor he had heard about the demand of dowry. Fulmani had got cut by train when she had gone to graze the cow. His statement was also recorded by the police in which he has stated the same. In cross examination, he has stated that he had not seen Fulmani being run over by the train.

D.W.3 Kaila Tudu has stated that the occurrence took place 3 years ago. The accused Munna was married in village Alakzara with Phulmani, the daughter of Jata Soren. His house stands adjoining to the house of accused. After the marriage Fulmani was lying in Sasural. He had never seen any Marpit with her nor was any demand of dowry. He has further stated that Phulmani was run over by the train. Railway line is situated nearby the house of Phulmani. He had given his statement in the police and had stated the same.

D.W.-4 Shravan Kumar is a formal witness who has proved Ext. A and Ext. B adduced on behalf of defence.

In order to deal with the above point, it is required to refer the relevant provisions of law herein below:-

From bare perusal of Section 304B of the IPC (Section 80 of B.N.S., 2023), it is obvious that following ingredients have to be proved by the prosecution as foundational facts for invoking the offence of dowry death:-

When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death and once the prosecution establishes aforesaid ingredients, the burden of proof radically shifts to the defence due to strict statutory presumption.

The provision of section 304-B of IPC as regards cause of death does not categorize death as homicidal, suicidal or accidental rather any death occurring “otherwise than under normal circumstances” may attract the provision of section 304-B of IPC, if other ingredients are fulfilled.

In the instant case, after going through the ocular testimony of prosecution witnesses examined in this case, it appears that the death of the deceased as per the evidence of witnesses is admittedly due to injuries sustained by the deceased which has happened otherwise than under normal circumstance as corroborated by the Doctor (P.W.-7) which confirms the first requirement of Section 304B of the IPC.

The second requirement is also proved as per the testimony of the witness i.e. (P.W.-5 Fakuwa Marandi) that the deceased was married with the appellant No. 2 just before one year from her death which was also corroborated by the informant and she died unnatural death i.e. within 7 years of marriage.

So far as, third and fourth conditions are concerned, it appears from the testimony of the informant who is the father of the deceased that his son-in-law used to demand cycle, watch and milch cow and due to non-fulfillment of demand, the husband of the deceased used to torture and assault the deceased and this fact was narrated by the deceased herself to her maternal uncle to convey the same to her father to give Cycle, Watch and Milch Cow otherwise the accused would kill her and just before one week of the occurrence, his son-in-law quarreled with the informant and took away his wife to matrimonial home due to non-fulfillment of demand. The unrebutted testimony of aforesaid witnesses also proves the ingredients nos. (iii) and (iv).

Therefore, presumption under Section 113B of the Indian Evidence Act can legitimately be raised in this case against the husband of the deceased. So far as presumption under Section 113B of the Indian Evidence Act against mother-in-law and brother-in-law is concerned, none of the prosecution witnesses have specifically stated that they have ever demanded cycle, watch and milch cow and have ever subjected the deceased with cruelty and torture rather there are general and omnibus allegations against the brother-in-law and mother-in-law of the deceased.

I have considered the defence version in the light of circumstances proved by the prosecution. It is crystal clear that all the four ingredients of dowry death have been proved by the prosecution against the husband only through cogent and reliable evidence and the defence has miserably failed to rebut the presumption invoked under Section 113B of the Indian Evidence Act.

In view of the above discussion and reasons, I do not find any illegality or infirmity in the impugned judgment of conviction and sentence passed by the learned trial Court against the husband (appellant No. 2) calling for any interference in the appeal. Accordingly, the judgment of conviction and sentence passed by the learned trial Court for the offence under Section 304B of the IPC is hereby confirmed and upheld against the husband.

Consequently, the suspension of sentence granted to the appellant No. 2 vide order dated 02.12.2004 during pendency of this appeal, is hereby cancelled and he is directed to surrender before the learned Trial Court within two months from the date of this Judgment and undergo the remaining period of sentence awarded to him by the learned trial Court, failing which, the learned trial Court shall take all coercive steps for arrest and detention of the appellant No. 2 for sustaining the remaining period of sentence awarded to him.

So far as the conviction and sentence passed by the learned trial Court in respect of appellant No. 1 and appellant No. 3 is concerned, the same is hereby set aside and they are acquitted from the charge leveled against them. Both the appellants are on bail, hence, they are discharged from the liabilities of bail bonds. The sureties are also discharged.

In result, this appeal is partly allowed to the extent mentioned above.

Pending I.A(s), if any, is also disposed of, accordingly.

Let a copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.