Nityanand Tiwary @ Nityanand Tiwari & Ors. vs The State Of Jharkhand

This criminal appeal is directed against the Judgment of conviction dated 25.01.2020 and order of sentence dated 27.01.2020 passed by learned Dist. & Addl. Sessions Judge-II, Giridih in Sessions Trial Nos. 211 of 2013, 218 of 2013 and 38 of 2016, whereby and whereunder, the appellants have been found guilty of charges under Section(s) 498(A)/34 and 304(B)/34 of Indian Penal Code and have been convicted and sentenced to undergo imprisonment for life and fine of Rs.25,000/- each for the offence under Section(s) 304(B)/34 IPC and in default of payment of fine they have also been sentenced to undergo one year S.I. They have further been sentenced to undergo three years R.I. and a fine of Rs.5,000/- each for the offence under Sections 498A/34 IPC and in default of payment of fine, they have also been sentenced to undergo six months S.I. The Court directed that all sentences run concurrently, and the period of sentence be set off against the period the convicts have already suffered during trial.

Learned counsel for the appellants submits that the judgment of conviction and order of sentence passed by the trial court is perverse and against the materials available on record as there is no demand of dowry or torture against the appellant Nos. 2 to 4. She also submits that the cause of death has not been proved by the prosecution as to whether the same is homicidal death or suicidal death. She further submits that the witnesses' depositions contain contradictions. She further submits that the investigation in this case was conducted erroneously and illegally. She lastly submits that the prosecution has not proved its case beyond a reasonable doubt and that the appellants have been falsely implicated in this case on the basis of mere suspicion. On these grounds, she prays for acquittal of the appellants.

Learned counsel representing the State, opposing the prayer of the appellants, submits that the prosecution has been able to prove its case beyond a shadow of reasonable doubt against the appellants under Sections 498A/34 and 304B/34 IPC by leading oral evidence, as all the witnesses have supported the prosecution case. She further submits that there is nothing to disbelieve the prosecution witnesses' evidence. She also adds that there is sufficient evidence against the accused persons, being the husband and his family members, that they subjected the deceased to cruelty due to non-fulfillment of demand and ultimately killed her. On the aforesaid grounds, she submits that the impugned judgment of conviction and order of sentence passed by the learned court is justified and should not be interfered with.

The case of the prosecution in brief is that the informant P.W.7) solemnized the marriage of his daughter Soni Devi (deceased) with Nityanand Tiwary in the year 2008, and after that she went to her in-laws' house where she lived one year happily and peacefully; thereafter her in-laws started demanding a motorcycle and cash of Rs.50,000/-. The informant paid Rs.50,000/- to his son-in-law. However, they again, three months before the occurrence, assaulted and tortured his daughter due to non-fulfillment of the demand for a motorcycle and also threatened her to remarry Nityanand Tiwary as she was unable to give birth to a child. On 29.12.2012 at about 8:00 p.m., a villager informed the informant that the accused persons had committed murder of his daughter. After receiving this information, the informant, along with his family members as well as relatives, went to the matrimonial house of his daughter at village Tilaidih, where they saw that the dead body of his daughter was lying on a cot in the courtyard, and no family members of her in-laws' house were present there. They came to know that her daughter was murdered by the appellants by pressing her neck, nose, and mouth after assaulting her. They also saw the injuries on the person of the deceased.

Based on the aforesaid fardbeyan, Deori P.S. Case No. 200/2012 was registered for offenses under Section(s) 498A, 304(B), and 34 IPC, and Section 3/4 of the Dowry Prohibition Act, against the accused persons. After investigation, the police submitted separate charge-sheets against the appellants. Thereafter, the Court took cognizance of the offence and the case was committed to the Court of Sessions. Since the appellants pleaded not guilty, the Court framed charges under Sections 498A/34 and 304(B)/34 of the Indian Penal Code, and the trial commenced.

The prosecution, in order to prove its case, has examined seven witnesses, who are as follows:-

P.W.1- Ujjawal Kr. Tiwary

P.W.2- Chunnu Pandey

P.W.3- Manoj Pandey

P.W.4- Subhash Pandey

P.W.5- Dr. Rajesh Chandra

P.W.6- Ram Sagar Ram (I.O of this case)

P.W.7- Nawal Kishore Pandey (informant)

Some documents were also exhibited in this case, which are as follows:-

Ext.1- Postmortem report.

Ext.2- Inquest Report.

Ext.3- Formal FIR

Ext.4- FSL report.

After closure of prosecution evidence, the statements of the appellants were taken under Section 313 Cr.P.C., in which they have totally denied the occurrence and submitted that they are innocent and have falsely been implicated in this case.

The Trial Court, after considering the oral and documentary evidence and after hearing both the parties, convicted the appellants for committing the offence under Sections 498A/34 and 304B/34 of the Indian Penal Code and sentenced as stated above.

From the evidence led by the prosecution, we find that P.W.1 (Ujjwal Kr. Tiwari) is a co-villager of the appellants, who has been declared hostile.

P.W.2 (Chunnu Pandey) is the brother of the deceased, who stated that the marriage of his sister was solemnized with appellant No. 1 in the year 2008 and after that she went to her sasural where she lived peacefully for one and a half years and thereafter all the accused persons started to demand a motorcycle and threatened to kill her if the demand is not fulfilled. He also deposed that he went to his sister’s in-laws' house and paid Rs. 50,000/- to the accused persons for purchasing a motorcycle. He further deposed that the accused persons started to torture his sister, and three years ago in the morning he was informed that his sister had died. He, along with his family, went there and saw the dead body of his sister lying on a cot. They also saw the injuries on the body of the deceased.

P.W.3 (Manoj Pandey) is the cousin of the deceased, and he has deposed more or less as stated by the informant (P.W.7) and P.W. 2. He also stated that he went to the place of occurrence, where he saw the dead body of the deceased lying on a cot. He also saw the injuries on the person of the deceased. He further deposed that he informed the police about the occurrence, and the police came, but none of his sister's in-laws were present. The police prepared the inquest report.

P.W.4 (Subhash Pandey) is also a cousin of the deceased, and he supported the prosecution case by stating the facts as stated by P.Ws. 7, 2 and 3. He also stated that he went to the place of occurrence, where he saw the dead body of the deceased lying on a cot. He also saw the injuries on the person of the deceased.

P.W. 5 (Dr. Rajesh Chandra) has deposed that on 30.12.2012 he had conducted the postmortem examination upon the dead body of the deceased and found the following external injuries:-

He has proved the postmortem report, marked as Ext.1. In cross-examination, he stated that he could not come to any conclusion regarding the cause of death, but he found multiple injuries on the person of the deceased on her ear side, hand, and back. He further deposed that he saw blood in the right chamber of the heart and foul material was coming from the anus, which clearly suggests that the deceased has been brutally assaulted and has been killed after pressing her neck and mouth, as disclosed in the inquest report (Ext.-2).

P.W. 6 (Ram Sagar Ram), the Investigating Officer of this case, who has deposed that on 30.12.2012 he had taken charge to investigate the case and had recorded the statement of the witnesses including the re-statement of the informant and also inspected the place of occurrence, which is the house of accused Shankar Tiwary of village Tilaidih. He has also proved the inquest report and sent the viscera for chemical examination. He submitted charge-sheet No. 25/2013 dated 21.3.2013 against the accused Nityanand Tiwary. He also submitted supplementary chargesheet No. 92/2013 dated 24.6.2013 against the other accused persons.

P.W. 7 (Nawal Kishore Pandey) is the informant of this case, who has deposed that at the time of marriage, i.e. in the year 2008, they gave Rs. two lakh and other articles as dowry, but the amount of Rs.50,000/- and a motorcycle were not given at that time. He further deposed that after two years of marriage, Nityanand started assaulting her daughter for the remaining amount as well as the motorcycle. His daughter stated the same. He also stated that 20 days before the occurrence, his daughter told him that Nityanand was assaulting her, whereafter he went to the matrimonial home of his daughter, where his daughter told him to give the motorcycle or else she would be killed. He further stated that on the 29^th day of December, he was informed that his daughter was killed. Thereafter, he, along with others, went to the matrimonial home of his daughter and found his daughter dead lying in a cot. There were injuries on the person of the deceased.

From the evidence of the prosecution, we find that all the witnesses are related witnesses, except P.W. 1, the Doctor, and the I.O. of this case. From the witnesses' depositions, we find that none of them were eye witnesses to the occurrence. They reached the place of occurrence after the deceased's death.

We find that the marriage of the deceased was solemnized with Nityanand Tiwary of village Tilaidih in the year 2008 and the deceased died in her sasural on 29.12.2012, i.e., within seven years of her marriage. P.W. 7, i.e., the informant, has specifically deposed that the husband (appellant No. 1) of the deceased demanded a motorcycle and Rs. 50,000/- in cash, which was due at the time of marriage. This witness has supported the illegal demand of the appellant No. 1 in his evidence, and he had also seen the injuries on the person of the deceased. The inquest report was prepared, in which it has clearly been mentioned in para 5 that there were injuries near the right ear side, back portion, right arm and elbow, and in the left hand, and there was froth from the nose of the deceased. The doctor had also found all these injuries at the time of postmortem examination, which supports that the deceased had been subjected to cruelty soon before her death. The doctor has also found a blood clot in the neck of the deceased and a fracture of the right side of the clavicle and has also stated that the time of death is within 24 hours. Thus, it is quite clear that the deceased had been brutally assaulted soon before the death.

There is a specific allegation against the husband of the deceased, namely Nityanand Tiwary, that he was demanding the remaining part of the dowry and also assaulting and torturing her due to non-fulfillment of the demand, which completes the chain of circumstances. The death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense are not expected to be present, and this is the reason that the prosecution has not examined any independent witnesses in this case. The evidence cannot be rejected merely on the basis of the witnesses' relationship with the deceased. In this case, the witnesses are the deceased's father and cousin. They have categorically supported the case of the prosecution in their evidence, but P.W.7, who is the informant of this case, has specifically stated that appellant No. 1 (husband of the deceased) has killed the deceased due to non-fulfillment of the demand for dowry soon before her death. The death occurred within seven years of her marriage. The medical evidence also corroborates the fact that the deceased died an unnatural death due to injuries found on the person of the deceased.

Section 304-B of the Indian Penal Code reads as follows:-

As per the aforesaid provision of law, the prosecution has first to establish the following facts.

In this case, we find that the prosecution has been able to establish all the ingredients, that is, death within seven years of marriage and the death was unnatural, and soon before the death, there was demand for dowry and torture by appellant No. 1. However, the involvement of other appellants, i.e. appellant Nos. 2 to 4, has not been substantiated by the prosecution, as none of the witnesses has stated that soon before the death of the deceased, they have assaulted the deceased or demanded dowry. P.W. 7 has categorically stated that only the husband of the deceased demanded the remaining part of the dowry for which he used to torture her. His daughter specifically stated this to him. The deceased has not stated about the involvement of other appellants, i.e., appellant Nos. 2 to 4, with regard to the demand for dowry and torture meted out to her to any other witnesses.

In that view of the matter, we do not find any reason to interfere with the Judgment of conviction dated 25.01.2020 and order of sentence dated 27.01.2020 passed by learned Dist. & Addl. Sessions Judge-II, Giridih in Sessions Trial Nos. 211 of 2013, 218 of 2013 and 38 of 2016 so far as appellant No. 1- Nityanand Tiwary @ Nityanand Tiwari (the husband of the deceased) is concerned. His conviction and punishment remain intact.

So far as appellant No. 2- Rohit Tiwary @ Rohit Kr. Tiwari, appellant No.3- Shankar Tiwary and appellant No. 4 Chameli Devi are concerned, the Judgment of conviction dated 25.01.2020 and order of sentence dated 27.01.2020 passed by learned Dist. & Addl. Sessions Judge-II, Giridih in Sessions Trial Nos. 211 of 2013, 218 of 2013 and 38 of 2016 is set aside. Since they are on bail, they and their bailers are discharged from liability for bail bonds.

Accordingly, this appeal is partly allowed. Pending interlocutory applications, if any, also stand disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.