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Judgment
Lakshman Uraon, J.—Both the appellants, named above, have preferred this appeal, challenging the judgment and order of conviction and sentence dated 20th December, 1999, passed by Sri Vinod Kumar Sinha, learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No. 104 of 1997, arising out of Bagodar (Suriya) P.S. Case No. 20 of 1997, corresponding to G.R. No. 246 of 1997, whereby and whereunder both of them have been convicted under Sections 304B and 498A of the Indian Penal Code and sentenced to undergo life imprisonment for the offence u/s 304B of the Indian Penal Code and imprisonment for three years for the offence u/s 498A of the Indian Penal Code and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo simple imprisonment for one month each. However, it has been ordered that both the sentences in each count in respect of both the convicts shall run concurrently.
The facts leading to the present case are that P.W. 3 Tukani Massomat, wife of late Roshan Mandal, had four daughters. Deceased Khiriya Devi was married with appellant No. 1 Rajendra Mandal four years prior to the alleged date of occurrence dated 14th February, 1997 at Village Nagar Keswari Mahua Toli, Police Station Suriya Bagodar, District Giridih. The informant P.W. 5 Prasadi Mandal is the maternal uncle of deceased Khiriya Devi. The younger sister of the deceased, namely, Dropadi Devi (P.W. 2) is residing in the same village in the house of her mother (P.W. 3), being the youngest daughter and her husband is looking after her and her mother as Gharjamai. Khiriya Devi and two other sisters were given in marriage after performing Tilak ceremony, selling the landed properties. Khiriya Devi''s marriage was also performed in the similar manner. Whatever landed properties remained after performing the marriage of three daughters, P.W. 3 Tukani Massomat executed a deed of transfer regarding those remaining landed properties in favour of her youngest daughter P.W. 2 Dropadi Devi. Since thereafter, both the appellants and one absconding accused Koli Mandal started torturing Khiriya Devi, forcing her to demand some lands in their favour also from her mother Tukani Massomat by executing deed of transfer. When some portions of land could not be transferred in favour of the appellants, they started assaulting and torturing Khiriya Devi. On 14.2.1997 at about 4.00 p.m. the youngest Bhagani of the informant (P.W. 5) Dropadi Devi (P.W.2) informed the informant weepingly that her elder sister Khiriya Devi was done to death by her father-in-law, mother-in-law and husband. The informant along with villagers Arjun Mandal (P.W. 4), Laxman Mandal and Shivdhan Mandal (P.W. 5) went and saw the dead body of Khiriya Devi, lying on a cot. Blood was seen oozing out from both the ears and also from her private part. The clothes (Sari) was smeared with blood. There was mark of assault on her body. Tukni Massomat (P.W. 2) has informed that due to non-transferring of some portion of the land in favour of the accused/appellants, they used to torture and assault Khiriya Devi, depriving her of water and food. They always used to assault her and compel her to ask her mother to transfer some lands in their favour also. Several panchayats were also held in this regard but that could not satisfy their greed for the landed properties. The Fardbeyan of the informant was recorded on 15.2.1997 at Nagar Keshwari Mahua Toli at 9.30 a.m.
Accused Koli Mandal absconded; hence his case was separated. To prove the charges framed against both the appellants, prosecution examined seven witnesses whereas defence has also'' examined three witnesses. P.W. 1 Dr. K. Kumar has conducted autopsy on the dead body of Khiriya Devi and prepared Postmortem Report (Ext. 1) in his pen and signature. P.W. 2 Dropadi Devi is the younger sister of the deceased and was residing in the same village. P.W. 3 Tukni Massomat is the mother of the deceased and P.W. 5 is the informant Prasadi Mandal, maternal uncle of the deceased. P.W. 4 Arjun Mandal is a hearsay witness, who was informed about the alleged occurrence by one Nageshwar Mandal. When he went to the house of the appellants, he saw the dead body. He is also an eye-witness on the inquest report on which he signed (Ext. 2). P.W. 6 Sheodhyan Mandal is a hostile witness and P.W. 7 Ram Naresh Singh is the Investigation Officer of this Case.
D.W. 1 Prasadi Mandal, D.W. 2 Chuta Mandal and D.W. 3 Punit Mandal @ Punit Mahto have deposed that in the night of the alleged occurrence some thieves/ dacoits entered into the house of Koli Mandal. They assaulted Khiriya Devi, who succumbed to her injuries but all the defence witnesses of the same village Nagar Keshwari had not gone to the house of Koli Mandal when the thieves/dacoits had entered into her house. D.W. 1 has deposed that there was no demand of dowry and torture. However, he admits that two and half years prior to the alleged occurrence Khiriya Devi was married with appellant No. 1 Rajendra Mandal. No one has informed about commission of any theft or dacoity in the house of Koli Mandal. Similar is the evidence of D.W. 2 Chuta Mandal and D.W. 3 Punit Mandal @ Punit Mahto.
Learned Court below found that the marriage of deceased Khiriya Devi was performed with appellant No. 1 Rajendra Mandal within seven years of the alleged unnatural death of Khiriya Devi. He relied on the evidence of P.W. 2 Dropadi Devi regarding torture and assault, meted out to her married sister Khiriya Devi. The informant Prasadi Mandal (P.W. 5) and his sister P.W. 3 Tukni Massomat have supported the demand regarding transfer of some lands in favour of the appellants and when the land could not be transferred in their favour by Tukni Massomat, as the remaining lands were already transferred by executing registered deed in favour of Dropadi Devi, P.W. 2, the alleged torture and assault to Khiriya Devi took place resulting her death in her matrimonial house. The I.O. (P.W. 7) when went to the place of occurrence, one being informed by one villager that the dead body of Khiriya Devi is lying, did not find any appellants in the house rather all had fled away. Inquest report (Ext. 2), prepared by the I.O., also goes to show that the dead body was found in the house of these appellants on a cot (Khat). P.W. 1 Dr. K. Kumar, who conducted the autopsy on 16.2.1997 on the dead body of Khiriya Devi, aged about 18 years, found several abrasions, swellings, bruises, lacerations and echymosis and opined that all were ante mortem in nature, caused by hard and blunt object and the death since post-mortem examination was within two to three days. The learned Court below considered all these aspects and came to the conclusion that there was demand of landed property towards dowry for which she was assaulted soon prior to her death and died within seven years of her marriage in her matrimonial house, attracting Section 113B of the Indian Evidence Act. Being satisfied with the evidence, adduced on behalf of the prosecution, the learned Court below convicted the appellants and sentenced them thereunder whereas he disbelieved the evidence of the defence witnesses, who had given a different story regarding commission of theft/dacoity in the house of these appellants and in commission of such theft/dacoity Khiriya Devi was assaulted by the thieves/dacoits, resulting her death.
Learned Counsel for the appellants, in course of argument, has relied on a case reported in the Judgment Today 2001 (8) SC 208, and has submitted that in this case Section 304B is not attracted and has also submitted that the sentences, passed against these appellants, are excessive. It was further argued that according to the informant and the ocular evidence of the witnesses, blood was oozing out from the private part of the deceased but the doctor (P.W. 1), who conducted the autopsy, did not find any external or internal injury in the genital organ. P.W. 2 Dropadi Devi has not informed the police regarding the assault and torture meted out to her sister Khiriya Devi. It was also submitted that there is no independent village eye-witness in this case and only the interested witnesses have been examined, who are mother, sister and maternal uncle of the deceased. On these grounds, it was urged that the appellants are entitled for acquittal.
Learned A.P.P. refuting the arguments, advanced on behalf of the appellants, has submitted that Khiriya Devi died in her matrimonial house within seven years of her marriage. Although there is no eye witness of the alleged assault and murder but P.W. 2 Dropadi Devi, the younger sister of the deceased, who used to visit the house of Khiriya Devi, has narrated regarding torture and assault on her person to compel Tukani Massomat to transfer some lands in favour of the appellants. P.W. 2 Dropadi Devi had also seen Khiriya Devi being assaulted by these appellants on 12th and 13th February, 1997 when she had gone there, on a usual visit to her sister. P.W. 3 Tukani Massomat and P.W. 5 Prasadi Mandal are the members of the family and being closely related, they are knowing about the demand of the landed properties by these appellants. When the demand was not fulfilled, Khiriya Devi was done to death by these appellants. P.W. 1 Dr. K. Kumar who examined the deceased found so many injuries, ante mortem in nature, caused by hard and blunt substance and the cause of death was due to those injuries. On these grounds, it was argued that the learned Court below has found that there was cruelty and torture, just before the death of Khiriya Devi, only for transfer of land, which is dowry demand and Section 304B of the Indian Penal Code has well been established by the prosecution. Section 113B of the Indian Evidence Act also presumes that under such circumstances and facts of the case it will be presumed to be a dowry death. The learned Court below has considered all these evidence and circumstances and has rightly convicted and sentenced both the appellants, as stated above.
Learned Counsel for the appellants has much stress on as to what constitute an offence u/s 304B of the Indian Penal Code, while referring cases, reported in Judgment Today Kaliyaperumal and Another Vs. State of Tamil Nadu, , Section 304B of the Indian Penal Code has been reproduced in Paragraph No. 4, which deals with dowry death, as follows:
"Section 304B. Dowry death-
(i) Whether the death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand of dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Explanation-For the purposes of this sub-section "dowry" shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
(ii) Whoever commits dowry death shall be punished with imprisonment for a turn, which shall not be less than seven years but it may extend to imprisonment for life."
The provision has application where death of a woman is caused by any burn or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry.
The essential ingredients to attract application of Section 304B are as follows :
(i) The death of a woman should be caused by burns or bodily injuries or otherwise than under normal circumstances
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be so, or in connection with a demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113B of the Indian Evidence Act is also relevant in the case at hand :
"Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person has caused the dowry death."
Having considered the law, laid down by Hon''ble the Apex Court, I have to assess the evidence of the witnesses, of course, who are closely related witnesses, as to whether the death of Khiriya Devi was the dowry death which can be presumed that it was a dowry death.
The death of Khiriya Devi has not been challenged as P.W. 1 Dr. K. Kumar, who conducted autopsy on 16.2.1997 at 11.30 a.m. found ante mortem injuries :
(A) Abrasion :
(a) Below patella in front of right knee 1" x 1/2".
(b) Below patella on left knee in front 1/2" x 1/4".
(c) Left calf swollen .- 3" x 2" with abrasion 2" x 1".
(d) Swelling right forearm upper part on ulna aspect with abrasion 1" � 1/4".
(e) Swelling left forearm on ulna aspect 2" x 1" in the middle.
(f) Swelling over left cheek extending to the left side of the neck below left ear with abrasion on the cheek 1�" x 1/2".
(B) Bruise
(a) Bruise on the right side of the cheek in middle auxiliary region 3" x 1 1/2".
(b) Bruise over the left side of chest, 2 1/2" x 1 1/2". in anterior auxiliary line lower part.
(c) Bruise over the right side of cheek 2" x 1" with swelling.
(C) Lacerated wound
(a) Lacerated wound lower part of lobule of right ear 1\\4" x 1/8" x thickness deep.
(b) Left ear lobule left side 1/2" x 1/8" x thickness deep.
(D) Ecchymosis
(a) Ecchymosis on the right thigh in middle 3 1/2" x 1 1/2".
On dissection the doctor found blood clot on right side of pleural cavity with fracture of 6th and 7th ribs with laceration of lungs right side. Nothing abnormal was detected on her external genital organ. The injuries were ante mortem in nature, caused by hard and blunt object within two to three days from the time of autopsy. Ext. 1 is the Post-mortem Report.
The I.O. (P.W. 7) on being informed by one villager that dead body of a woman is lying at village Nagar Keshwari, entered S.D. Entry No. 248 dated 15.2.1997 (Ext. 4) and went to the P.O. village. He prepared inquest report (Ext. 2) and recorded the Fardbeyan of the informant (Ext. 5), in presence of the witnesses. The inquest report (Ext. 2) shows that the dead body of Khiriya Devi was lying on a cot in the house of the appellants. He found injuries on the dead body of Khiriya Devi and also saw blood coming out from her private part. He has also deposed in paragraph 12 of his deposition that there was apparent visibility of mark of assault and blood in abundance was oozing out from her private part. Her clothes were smeared with blood. All these evidence create no doubt in my mind that the death of Khiriya Devi was due to assault and was unnatural death and the dead body was found in her matrimonial house. At that time, as deposed by P.W. 7 Ram Naresh Singh (I.O,), no one of the house was available there. Till submission of final form, Koli Mahto, father of appellant No. 1 and husband of appellant No. 2, remained absconding, resulting separation of his trial from these appellants.
There is no eye-witness regarding the assault and manner of assault, meted out to Khiriya Devi. As per the evidence of defence witnesses and also P. Ws. 1, 2 and 5, the marriage of Khiriya Devi was solemnized with appellant No. 1 Rajendra Mandal within seven years of the alleged death of Khiriya Devi. Now the question arises as to whether the homicidal death was due to non-fulfilment of the demand of dowry, which was being pressed by these appellants to transfer landed properties in their favour also. The informant in his Fardbeyan and in his deposition has corroborated the prosecution case by stating that his sister Tukni Massomat, mother of the deceased, had transferred all the remaining lands in favour of P.W. 2 Dropadi Devi. This fact has been corroborated by P.W. 2 Dropadi Devi and P.W. 3 Tukani Massomat unequivocally. All the three witnesses have further deposed that when land could not be transferred, these appellants started torturing and harassing Khiriya Devi. P.W, 2 Dropadi Devi, younger sister of the deceased, was in visiting term in the house of her elder sister (deceased). Her elder sister Khiriya Devi used to narrate the demand, torture and harassment, meted out to her. On Friday when she had gone to her sister''s matrimonial house, she saw the dead body of Khiriya Devi lying on a cot and informed her matrimonial uncle Prasadi Mandal (P.W. 5). She had seen these appellants Rajendra Mandal and Sugia Devi assaulting her sister Khiriya Devi on 12th and 13th February, 1997 and the death occurred on 14th February, 1997. These evidences clearly go to prove that Khiriya Devi was tortured and harassed soon prior to her death. The Post-mortem Report, prepared by P.W. 1, shows how the deceased was tortured by assaulting her, causing several abrasions, bruises, swellings, lacerations, accumosis, fracture and bleeding. P.W. 4 is a witness of the inquest report on which he has signed. P.W. 6 Sheodhyan Mandal, to whom amongst the other villagers P.W. 2 narrated the alleged assault and murder of her sister Khiriya Devi has been declared hostile. The objective finding of the I.O. (P.W. 7) also goes to prove that the dead body was found on a cot in the house of these appellants. While preparing inquest report (Ext. 2) he found mark of assault on the body of Khiriya Devi and also found blood coming out of her private part. All the witnesses i.e., P.W. 1, P.W. 2, P.W. 5 and P.W. 7 have stated that clothes were smeared with blood and blood was coming out from the private part of the deceased but the doctor did not find any external injury on the private part. It simply shows that due to assault, Khiriya Devi sustained fracture injuries on her ribs and blood was also found clotted within her pleural cavity. The blood, as usual, came out from the private part of the deceased without any external injury thereon.
When considered all the evidence and circumstances, I find that the deceased was married with appellant No. 1 and within seven years of her marriage, she died unnatural death in her in-laws'' house, having sustained injuries, ante-mortem in nature. The evidences of P.W. 1, P.W. 2 and P.W. 5 are corroborative to the prosecution case that appellants were demanding transfer of the landed properties in their favour from P.W. 3 Tukni Massomat, as she had transferred the entire remaining lands in favour of her younger daughter P.W. 2 Dropadi Devi. As the landed properties were already transferred in favour of P.W. 2 Dropadi Devi, hence P.W. 3 Tukni Massomat could not oblige these appellants. The greed of landed properties led to torture and harassment at the hands of these appellants to Khiriya Devi. She was brutally assaulted, having several injuries and bleeding from private part and when she died, her dead body was laid down on a cot and thereafter, these appellants fled away.
The defence witnesses, who have tried to give another story of theft/ dacoity had not gone to the police station to inform about the alleged occurrence and assault, resulting death of Khiriya Devi. Hence the defence witnesses are of no help in the facts and circumstances of this case.
The learned Court below has rightly convicted these appellants after going through the evidence of P.W. 1, P.W. 2 and P.W. 5, adduced by the prosecution. I do not find any reason to discard their evidence only on the ground that they are closely related. Their evidence is corroborative regarding demand of dowry. When it was not fulfilled, as per the evidence of P.W. 2 Dropadi Devi, her sister Khiriya Devi was assaulted in her presence on 12th and 13th February, 1997, when she had gone to see her at her matrimonial house on 12th and 13th February, 1997 and on 14th February, 1997 the unfortunate incident of unnatural death of Khiriya Devi occurred. This proves all the ingredients of Section 304B of the Indian Penal Code that Khiriya Devi was done to death by assault and harassment, only for non-fulfilment of land to be transferred in their favour, which very much covers the demand of dowry. The learned Court below has given in detail the ingredients of Section 304B of the Indian Penal Code, which is very much applicable in the present case. Moreover Section 113B of the Indian Evidence Act also plays a vital role in this case, which cannot be disbelieved. I, therefore, do not find any legal infirmity in the findings of conviction of both the appellants under Sections 304B and 498A of the Indian Penal Code.
Learned Counsel on behalf of the appellants, in course of his argument, has also relied on a case, reported in I (1995) DMC 86 (SC)=Judgment Today (6) 1994 SC 474; Hema Chand v. State of Haryana, in which it has been held that "as mentioned above Section 304B, I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.
In the present case, I find that the age of appellant No. 1 was 20 years and the age of his mother Sugia Devi appellant No. 2 was 42 years when they were examined u/s 313, Cr.P.C. by the Court in the year, 1999.
Considering this fact, J think that sentence of ten years of rigorous imprisonment for the offence punishable u/s 304B of the Indian Penal Code would meet the ends of justice. In the result, this Criminal Appeal is dismissed with the modification of sentence, passed u/s 304B of the Indian Penal Code, reducing it from life imprisonment to ten years rigorous imprisonment, while confirming the conviction, passed by the learned Court below u/s 304B, I.P.C. with respect to both the appellants. However, the conviction and sentence, passed u/s 498A of the Indian Penal Code, is confirmed.
As appellant No. 2 Sugia Devi is on bail, her bail bond stands cancelled and she is directed to surrender in the Court below to serve the remaining part of her sentence. The learned Court below is also directed to take all coercive steps to apprehend appellant No. 2 Sugia Devi to serve her remaining part of sentences.