Shankar Bhuiyan vs The State Of Jharkhand

It is here pertinent to mention at the very outset that appeal preferred by co-appellant Mundari Devi stood abated vide order dated 12.10.2019.

Heard the arguments of learned counsel for the appellant and learned A.P.P.

The instant criminal appeal is preferred being aggrieved and dissatisfied with judgment of conviction dated 16^th June, 2004 and order of sentence dated 17^th June, 2004 passed by learned Additional Sessions Judge, F.T.C.-II, Dhanbad in S.T. No. 224 of 1997 whereby and whereunder, the appellant 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/34 of the I.P.C.

The factual matrix giving rise to this appeal is that the youngest daughter (Munwa Bhuini) of the informant (Baleshwar Bhuiya) was married with Shankar Bhuiya (appellant) in April, 1992. It is alleged that after sometime of their marriage, her daughter was being subjected to cruelty and assault and therefore, the informant used to take back to parental home. It is further alleged that in the year 1994, his daughter was blessed with a child and the expenses of the same was not being incurred by the husband of his daughter and when his daughter use to demand money, she was being subjected with various atrocities. It is also alleged that the appellant had established illicit relationship with another woman and used to assault the daughter of the informant and ultimately ousted her from matrimonial home. Thereafter, the informant convinced the present appellant and his father to keep his daughter and he assured his daughter that he would come to meet her after Durga Puja. When Munwa Devi (his daughter) demanded cloths for herself and her child before Durga Puja, she was again assaulted. It is alleged that on 27.10.1996, the informant along with his wife Bimla Devi visited the matrimonial house of his daughter and came to know that accused persons burnt his daughter on pretext of cooking and her treatment is going on at Sadar Hospital, Dhanbad. It has also been alleged that informant was never informed regarding burning of his daughter and when the informant came to Sadar Hospital to meet his daughter, he was informed that his daughter has died on 24.10.1996.

On the basis of above fardbeyan of the informant recorded by S.I. Arun Kumar, F.I.R. was registered for the offence under Sections 304B/34 of the IPC against the accused persons.

After completion of investigation, charge sheet was submitted against above accused persons and after taking cognizance, the case was committed to the Court of Sessions, where S.T. No. 224 of 1997 was registered. The accused persons pleaded complete denial of the allegations and false implication.

In the course of trial, altogether 15 witnesses were examined by the prosecution.

P.W.-1 Kali Pado Lohar P.W.-2 Panchu Hari P.W.-3 Lachdeo Hari P.W.-4 Sagar Hari P.W.-5 Ashok Kumar Vishwakarma P.W.-6 Ganeshi Bai P.W.-7 Iliyas Ansari P.W.-8 Lalu Babu P.W.-9 Baleshwar Bhuiya (Informant) P.W.-10 Bimla Devi P.W.-11 Karu Bhuiya P.W.-12 Raj Kumar Nishad P.W.-13 Dr. Sailendra Kumar P.W.-14 Radha Nath Kumar P.W.-15 Dr. Arbind Kumar Sinha

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

Ext.-1 Signature of Baleshwar Bhuiya on Fardbeyan Ext.-2 Post-Mortem Report Ext.-3 Fardbeyan

No oral or documentary evidence has been adduced on behalf of the defence.

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 appellant assailing the impugned judgment has argued that the learned trial Court has failed to consider the fact that the deceased has died due to accidental fire in course of cooking and there was no demand of dowry by the accused persons and the allegation of assault and cruelty has also no basis as per the evidence of prosecution witnesses who are interested witness being the family members of the deceased and the learned trial Court has wrongly come to the conclusion of dowry death which was not proved. It has further been submitted that there was inordinate delay in filing the F.I.R. and in that respect, no any reasonable explanation has been given. It has further been submitted that the investigating officer who has investigated the case has not been examined which has caused serious prejudice to the accused persons. Therefore, the learned trial Court has not considered the aforesaid facts and has wrongly arrived at conclusion of guilt of the appellant which is liable to be set aside allowing this appeal.

On the other hand, learned A.P.P. appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the appellant 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. It has also been submitted that all the prosecution witnesses have consistently deposed that the accused persons were demanding dowry and due to non-fulfillment of the same, the deceased was subjected to cruelty and all the ingredients of Section 304B of the IPC are well proved. 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 appellant 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.-6 Ganesh Bai, P.W.-8 Lal Babu and P.W.-11 Karu Bhuiya have been declared hostile by the prosecution.

P.W.-1 Kali Pado Lohar has deposed that he is neighbor of the informant. He has further stated that the informant got his daughter married with Shankar Bhuiya. He has further submitted that after marriage, the deceased was residing in her matrimonial home but the behavior of her husband and in-laws was not good with the deceased. This witness came to know this when the deceased used to come at her parental home. They used to assault her for want of dowry. The fact that the accused persons burnt and killed the victim, came to his knowledge from the father of the victim. This witness has also stated that before death, the deceased had undergone treatment for one month but her husband and in-laws never informed.

In his cross-examination, this witness has been examined at length. He admits that he is a hearsay witness.

P.W.-2 Pancha Hari is also a neighbor and has stated that the deceased was married with Shankar Bhuiya in the year 1992 and after the marriage, she was not properly kept by the accused persons and they used to assault and torture her for want of dowry and this fact was narrated by the deceased herself when she had come to her parental home. This witness has further stated that deceased died in Hospital in course of treatment and the accused persons burnt and killed her but in this regard, no information was given by the accused persons and when the informant had gone to the matrimonial home of his daughter, the co-villagers informed that the accused persons burnt his daughter.

In his cross-examination, this witness has denied the suggestion of the defence that he has given false statement.

P.W.-3 Lachdeo Hari is a hearsay witness from the informant but has also corroborated the facts that informant’s daughter was burnt by the accused persons for want of dowry and she was not being kept properly by her husband and her in-law. She was deprived with basic necessity of life like cloth, food etc.

In his cross-examination, this witness has also been examined at length but remained intact.

P.W.-4 Sagar Hari has also deposed that the deceased was married with Shankar Bhuiya in the year 1992 and after marriage, the deceased was subjected with atrocities for want of dowry and after burning by accused persons, she was admitted in Hospital but no information in this regard was conveyed by the accused persons to the informant. This witness also admits that when the informant had visisted the matrimonial house of his daughter, came to know about the incident of burning and admission in hospital. This witness had also gone to Police Station with the informant to lodge the F.I.R.

P.W.-5 Ashok Kumar Vishwakarma has deposed that the deceased was married with the Shankar Bhuiya in the year 1992. Shankar Bhuiya used to drink wine and assault the deceased. He has also stated that the deceased was deprived with basic food and cloths and this witness came to know these facts from the deceased and informant. He further states that he came to know from the informant that the deceased died due to burning caused by her husband and in-laws. This witness had also gone to Police Station with the informant whose statement was recorded by the police.

In his cross-examination, this witness has also been examined at length but nothing has come to disbelieve the above testimony.

P.W.-7 Iliyas Ansari is a hearsay witness from the informant and has corroborated the prosecution story.

In his cross-examination, this witness has also denied the suggestion of the defence that he has given false statement.

P.W.-9 Baleshwar Bhuiyan is the informant of this case. He has deposed that the deceased was her youngest daughter who was married with Shankar Bhuiya in the year 1992. This witness has further stated that Shankar Bhuiya was in habit of gambling and drinking who used to assault, abuse and depriver his daughter with basic food and cloth etc. This witness also deposed that when his daughter used to come to his house, she narrated the atrocities meted with her by her husband and in-laws. He has further stated that the accused persons burnt my daughter because of dowry and the accused persons used to demand dowry. He further states that when one month lapsed after meeting his daughter in her matrimonial home, the informant desired to visit his daughter and when they went, found the matrimonial house of his daughter was locked and came to know from the co-villagers that accused persons burnt her for want of dowry and got admitted in Hospital for treatment and he went to the Hospital on 27.10.1996, he found his daughter dead. Accused persons even did not inform the informant about burning. Thereafter, he went to Police Station to lodge the case. His statement was also recorded and he put his signature.

In his cross-examination, he has stated that his friends namely Sagar Hari, Pancha Hari, Iliyas Ansari and Manohar Hari had gone with him to the Police Station.. He has also stated that before 27.10.1996, he brought his daughter to her matrimonial home and requested the accused persons to keep her well. In para 28, he has stated that Shankar Bhuiyan used to come his house and used to demand dowry.

P.W.-10 Bimla Devi is the mother of the deceased has also corroborated the facts regarding marriage and subsequently, the torture and atrocities meted with the deceased by her husband and in-laws. This witness further deposed that Shankar Bhuiya used to assault her daughter to bring Rs. 10,000/- as a dowry from her parents. This witness has also stated that when they had gone to meet her daughter then came to know from the villagers that accused persons burnt her daughter and admitted her in Hospital. This witness went to the hospital where she came to know that her daughter died.

In her cross-examination, this witness has also been examined at length but nothing has come to disbelieve her statement.

P.W.-12 Raj Kumar Nishad is the neighbor of the accused who has deposed that on the date of occurrence, he heard that the deceased sustained burn injuries. Then, he along with Lal Babu (P.W. 8) and Karu Bhuiyan (P.W.-11) along with other villagers went and saw the deceased in burnt condition and Shankar Bhuiyan and his parents were standing there. He further deposed that she was earlier given home remedy and thereafter she was brought to the Hospital for treatment. After some days, this witness came to know that the victim has died in course of treatment.

P.W.-13 Dr. Shailendra Kumar conducted the post-mortem examination on the dead body of Munwa Devi who was brought and identified by Havaldar Anand Rai and found:- Dermo-Epidermal ante-mortem burn all over the body except pelvic abdomen, private parts buttocks and with inferior extremities. The burnt lesions were covered with thick greenish and gramlation tissues were present at many places. Bed sore 6”x4”x muscle deep were found on the sacral region.

On dissection:- Heart, Stomach and Bladder were empty. Other internal organ were pale.

Cause of death:- Death was due to infection, repsis and shock on a result of aforementioned burin injures.

P.W.-14 Radha Nath Kumar is the formal witness who has proved the writing and signature of officer-in-charge Arun Kumar, Tisra P.S. P.W.-15 Dr. Arbind Kumar Sinha has proved that Dr. A.K. Sahai was treating the patient.

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

Indian Penal Code

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 is admittedly due to burning which has happened otherwise than under normal circumstance as corroborated by the Doctor (P.W.-13) which confirms the first requirement of Section 304B of the IPC.

The second requirement is also proved as per the testimony of the witnesses that the deceased was married with the appellant just before four years from her death which was also corroborated by the informant and other witnesses 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 (P.W.-9) who is the father of the deceased and from P.W.-10, mother of the deceased that his son-in-law and in-laws of the deceased used to demand dowry and due to non-fulfillment of demand, the husband and in-laws of the deceased used to torture and assault the deceased and this fact was narrated by the deceased herself to her father and other witnesses when the deceased had come to her parental home. 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 appellant. It is crystal clear that all the four ingredients of dowry death have been proved by the prosecution against the appellant 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 passed by the learned trial Court against the appellant-husband calling for any interference in this appeal. Accordingly, the judgment of conviction passed by the learned trial Court for the offence under Section 304B/34 of the IPC against the appellant is hereby confirmed and upheld.

In result, this appeal is dismissed.

Consequently, the bail granted to the appellant vide order dated 16.09.2004 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 to 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 for sustaining the remaining period of sentence awarded to him.

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.