Judgment:
Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 (Against the Judgment of Conviction dated 23.10.2008 and order of Sentence dated 24.10.2008 passed by learned Additional Sessions Judge-Fast Track Court, Koderma, in Sessions Trial No. 2 of 2008). ------------- Kailash Pandit ….. … Appellant Versus State of Jharkhand .…. … Respondent -------- For the Appellant : M/s Kaushik Sarkhel & D.K. Deo, Advocates For the Respondent-State : Mr. Azimuddin, A.P.P. -------- PRESENT : HON’BLE MR. JUSTICE H. C. MISHRA : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY ------- By Court.:- Heard learned counsel for the appellant and learned counsel for the State.
2. The appellant is aggrieved by the Judgment of conviction dated 23.10.2008 and Order of sentence dated 24.10.2008 passed in Sessions Trial No. 2 of 2008, by the learned Additional Sessions Judge, Fast Track Court, Koderma, whereby, the appellant has been found guilty and convicted for the offences under Sections 304-B and 201 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 304-B of the Indian Penal Code and R.I. for 3 years and fine of Rs. 5,000/- for the offence under Sections 201 / 34 of the Indian Penal Code.
3. According to the prosecution case, the deceased Anita Devi was married to the appellant Kailash Pandit about four years prior to the occurrence. It is alleged that soon after the marriage, the deceased was being subjected to cruelty and torture for demand of dowry at her in-laws' place, for which, police case was also filed. It is alleged that she was done to death at her in-laws' place on 27.6.2009 and her dead body was thrown in a well. On 29.6.2007, the informant Ganesh Kumar Pandit, who is brother of the deceased, was informed on phone by the co-villager of the appellant, viz, Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 2 Narayan Pandit about the occurrence, whereupon the informant along with his family members and villagers went to the in-laws' village of his sister, where they found the dead body in a well. The written report to the aforesaid effect was given by the informant Ganesh Kumar Pandit to the Officer-in-Charge of the Jainagar Police Station in the District of Koderma, wherein it was also stated that both the hands of the deceased were found to be tied and there were also marks of assaults on the dead body of the deceased and blood was oozing out from mouth, nose and eyes. The informant claimed in the written report that the accused persons, who are the appellant and his family members, had committed the dowry death of the deceased on 27.6.2007 and had thrown the dead body of the deceased in a well in order to conceal the evidence. On the basis of the written report, Jainagar P.S. Case No. 46 of 2007 corresponding to G.R. No. 426 of 2007 was instituted and investigation was taken up. After investigation, the police submitted the charge-sheet against the appellant and his parents, and final form in favour of the other family members.
4. After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 304-B, 201 / 34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, prosecution has examined 13 witnesses, out of whom P.W.-6 Vishwnath Pandit and P.W.-13 Badri Pandit were only tendered by the prosecution. One witness was also examined by the defence.
5. P.W.-12 Ganesh Kumar Pandit, is the informant and the brother of the deceased. This witness has stated that the deceased was married to the accused Kailash Pandit about 4-5 years prior to the occurrence, and thereafter, she was living at her in-laws' place. He has also stated that she died about one year ago and upon getting the information, this witness along with others went to her in-laws' village and found the dead body of the deceased in the well of one Dwarika Thakur. Police was also informed and in the presence of the police, the dead body was taken out of the well. The in-laws of the deceased had fled away. This witness has also stated that his sister's husband and other family members started subjecting her to cruelty and torture for the demand of Rs. 50,000/- and a motorcycle in dowry, for which, she also filed a case in the Court, in which, there was a compromise and thereafter she was taken to her Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 3 in-laws' place, where ultimately her dowry death was committed. This witness has identified his signature on the written report, which was proved as Exhibit-1 and his signature was marked as Exhibit 2/1. This witness has also stated about one week prior to the occurrence, his sister, had come to her parents' place, there were marks of assaults on her body and she had stated that she was being subjected to cruelty and torture for demand of dowry. This witness has identified the accused persons in the Court. In his cross-examination, this witness has reiterated the fact that one week prior to the occurrence, the deceased had come to her parents' place and had informed about the cruelty and torture, but it is admitted that no police case was instituted or any other information was given for the same. He has also admitted in his cross-examination that a case for divorce was filed by the Kailash Pandit, in which, he had alleged illicit relationship of the deceased.
6. P.W.-1 Kailash Pandit is also a brother of the deceased, who has supported the prosecution case as stated by the informant P.W.-12 Ganesh Kumar Pandit, including the fact that after her marriage, the deceased was being subjected to cruelty and torture for the demand of Rs. 50,000/- and a motorcycle in dowry, and her dowry death was committed. He had also gone to the in-laws' village of the deceased and had seen the marks of violence on the dead body of the deceased, when the dead body was taken out of the well. He has also stated that the written report was submitted in his presence, on which, he had also put his signature. He had proved the written report, which was marked as Ehibit-1.
7. P.W.-4 Kartik Pandit, is the other brother of the deceased, P.W.-10 Munshi Pandit and P.W.-11 Yashoda Devi are the father and mother of the deceased, and these witnesses have also fully supported the prosecution case, as stated by the informant P.W.-12 Ganesh Kumar Pandit, including the fact that after her marriage, the deceased was being subjected to cruelty and torture for the demand dowry, and her dowry death was committed. These witnesses had also gone to the in-laws' village of the deceased and had seen the marks of violence on the dead body of the deceased, when the dead body was taken out of the well.
8. P.W.-2 Dasrath Yadav and P.W.-3 Suresh Singh are the villagers, who were also informed about the occurrence and they had also accompanied Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 4 the informant to the in-laws' village of the deceased, where dead body was recovered from the well and they have also supported the prosecution case stating that that the deceased was being subjected to cruelty and torture for demand of dowry.
9. P.W.-5 Kedar Nath Kasera and P.W.-8 Baleshwar Pandit are the co-villagers of the accused appellant. P.W.-5 Kedar Nath Kasera has only stated that the deceased died by drowning, whereas P.W.-8 Baleshwar Pandit has turned hostile.
10. P.W.-7 Nageshwar Rajak is the I.O. of the case, who has stated that on 29.6.2007, a written report of the Ganesh Kumar Pandit was received in the Police Station, on the basis of which, Jainagar P.S. Case No. 46 of 2007 was instituted and he took over the charge of investigation. He has proved the endorsement on the written report, which was marked as Exhibit-3. He went to the place of occurrence, where the dead body was recovered from the well and the inquest report of the dead body was prepared by him. However, the inquest report has not been proved in this case. He has also given the description of the place of occurrence and has stated about the investigations made by him and he submitted charge-sheet only against the appellant and the parents of the appellant, stating that he did not find evidence against the other co-accused. In his cross-examination, he has admitted that in paragraph-17 of the case diary, it is recorded that there used to be quarrel between husband and wife due to some illicit relationship of the deceased.
11. P.W.-9 Dr. Shiv Kumar, is a member of the Medical Team of three Doctors, which had conducted the post-mortem examination on the dead body of the deceased on 30.6.2007, and had found the following:- "(i) On external examination- Rigor mortis absent. Mouth Open. Right eye closed. Left eye protruded out side orbital cavity. Maggot found in oral cavity whole body swollen. Whole skin separated from body external genetalia - no evidence detected. Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 5 (ii) On dissection:- Water bubble found on dissension of lungs, spleen congested, heart pale, kidney both congested, Liver congested, Urinary bladder empty, Stomach full of digestive materials, uterus non- gravy, brain pale." This witness has also stated that the cause of death was asphyxia due to drowning. This witness has proved the post-mortem report, prepared by the Medical Team, on which, he had also put his signature, and the same was marked as Exhibit-4. In his cross-examination this witness has stated that there was no external or internal injury on the dead body of the deceased and the death was caused due to drowning.
12. The defence has also examined one witness, D.W.-1 Baijnath Pandit, who is the neighbour of the appellant, and has only stated that there was good relationship between the deceased and her in-laws and the family members of the deceased had never made any complain that the deceased was being subjected to cruelty and torture for demand of dowry. He has also stated that the appellant was separate from his parents, both in residence and mess.
13. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the case, and this is a case in which the deceased had committed suicide due to her illicit relationship. it is submitted that the prosecution has failed to prove the charges beyond all reasonable doubts, inasmuch as, this is the specific case of the prosecution that when dead body was taken out of the well, there were marks of violence on the dead body, but this evidence is fully belied by the evidence of P.W.-9 Dr. Shiv Kumar, who has specifically stated that the Medical Team did not find any mark of violence on the dead body of the deceased, and there was no internal or external injury upon the dead body of the deceased, rather the death was caused due to drowning. Learned counsel also submitted that it has come in the cross examination of P.W.-12 Ganesh Kumar Pandit, the informant, that there was a case for divorce between the parties, in which the illicit relationship of the deceased was alleged. Learned counsel further submitted that the prosecution case has been supported only by the family members of the deceased and two independent witnesses namely P.W.-5 Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 6 Kedar Nath Kasera and P.W.-8 Baleshwar Pandit have not supported the prosecution case. Learned counsel submitted that there is no evidence on record that soon before the occurrence, the deceased was subjected to cruelty and torture for demand of dowry, and as such, the offence is not made out against the appellant. Learned counsel lastly submitted that for the reason that it is admitted in the cross-examination of the informant that in the divorce case, the ground for divorce was illicit relationship of the deceased, the allegation of illicit relationship is also admitted in the cross-examination of the I.O., P.W.-7 Nageshwar Rajak, and in view of the fact that it is the case of committing suicide by the deceased, as no external or internal injury was found on the dead body, the appellant is entitled at least to the benefits of doubt.
14. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that the witnesses, particularly the family members, who are the brothers and parents of the deceased, have fully supported the prosecution case stating that the deceased was being subjected to cruelty and torture for demand of dowry and it has also come in evidence of the family members of the deceased that soon after the marriage, the deceased was subjected to cruelty and torture for demand of dowry, which continued till the death of the deceased, as even about one week prior to the occurrence, the deceased had come to her parents' place, where they had found marks of violence upon the deceased, and the deceased had also disclosed that she was being subjected to cruelty and torture for demand of dowry. Though there was no police or other complaint about that and simply because of the fact that the co-villagers of the appellant had not supported the prosecution case, it cannot be said that the offence under Section 304-B of the Indian Penal Code is not made out. It is also submitted that it has come in the evidence that the deceased was being subjected to cruelty and torture for demand of dowry, for which criminal case was also filed, which was earlier compromised and the deceased was taken to her in-laws' place, where after she was done to dowry death. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the learned Trial Court below. Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 7 15. Having heard learned counsels for both the sides and upon going through the record, we find that the family members of the deceased are the natural witnesses of the fact that there was demand of dowry by the husband and the in-laws of the deceased and she was being subjected to cruelty and torture for the same. Normally no witness other than the family members can state about these facts. The family members have fully supported the prosecution case that the deceased was being subjected to cruelty and torture for demand of dowry, for which, there was also a criminal case also, in which, a compromise was made and after that she was taken to her in-laws' place. It has also come in the evidence of the family members, including the informant, that even one week prior to the occurrence, the deceased had come to her parents' place, when marks of violence were found upon her body and she had complained that she was being subjected to cruelty and torture for demand of dowry. Though there was no police or other complaint at that point of time, but for that reason only, this evidence cannot be wholly discarded. Though our attention has been drawn to the cross-examination of the informant P.W.-12 Ganesh Kumar Pandit, admitting that there was a divorce case, filed by the husband, in which, he had taken the ground of illicit relationship of the deceased and this allegation was also found by the I.O., during investigation, but the fact remains that the defence has examined one witness as D.W.-1 Baijnath Pandit, who has stated nothing about such illicit relationship, rather he has stated that there was good relationship between the husband and wife and there was no demand of dowry between the parties. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to prove the charges against the appellant beyond all reasonable doubts.
16. This brings us to the quantum of sentence, passed by the learned Court below, wherein the appellant has been sentenced to R.I. for life for the offence under Section 304-B of the Indian Penal Code. Though it is stated by the witnesses P.W.-12 Ganesh Kumar Pandit, P.W.-1 Kailash Pandit, P.W.-4 Kartik Pandit, P.W.-10 Munshi Pandit and P.W.-11 Yashoda Devi that there were marks of violence upon the dead body of the deceased, but the fact remains that the ocular evidence of these witnesses is not at all corroborated by the medical evidence P.W.-9 Dr. Shiv Kumar, as well as the post-mortem Cr. Appeal (DB) No. 1436 of 2008 with I.A. No. 5809 of 2016 8 report proved by him as Exhibit-4, rather the medical evidence is clear on the point that there was no mark of violence, either external or internal, upon the dead body of the deceased, and the cause of death was found to be asphyxia due to drowning. In that view of the matter, we are of the considered view that the sentence to undergo R.I. for life for the offence under Section 304-B, passed against the appellant is excessive sentence, and cannot be sustained in the eyes of law. We find from the Lower Court Record that the appellant had voluntarily surrendered before the Court below on 9.7.2007 and since then he has remained in custody for little less than 10 years now. In our considered view, the ends of justice would be met, if the appellant is sentenced to R.I. for the period already undergone by him.
17. In view of the aforementioned discussions, though, we affirm the Judgment of Conviction dated 23.10.2008 passed by learned Additional Sessions Judge-Fast Track Court, Koderma, in Sessions Trial No. 2 of 2008, but we hereby, set aside the Order of Sentence dated 24.10.2008, passed by the Court below, and the appellant Kailash Pandit is hereby, sentenced to R.I. for the period already undergone by him. Accordingly, the appellant is directed to be released forthwith, if his detention is not required in any other case. Let the release order in the present case be issued forthwith.
18. This appeal is accordingly, dismissed with modification in the Order of sentence as above. The aforesaid interlocutory application also stands disposed of. Let the Lower Court Records be sent back to the Court concerned forthwith, with a copy of this Judgment. (H.C. Mishra, J.) (Rongon Mukhopadhyay, J.) Jharkhand High Court, Ranchi Dated the 18th of May, 2017 NAFR/ Amitesh