1 Criminal Appeal No. 128 of 2001 (Against the judgment and order of conviction dated 1.3.2001 and sentence dated 2.3.2001 respectively passed by Sri. Kumar Ganesh Dutt, 2nd Additional Sessions Judge Palamau, Daltonganj in Session Trial No. 656 of 1998). ---------- Bindu Sao S/O Sri. Jagat Sao, resident of village Chundi,Police Station Dhukri Dist. Garhwa . ...... Appellant Versus The State of Jharkhand ...... Respondent For the Appellant :- Mr. Anurag Kashyap, Advocate For the State :- Mr. Krishna Shanker, A.P.P PRESENT HON'BLE MR. JUSTICE Ratnaker Bhengra C.A.V On 10.07.2015 Delivered on 13-10-2015 Ratnaker Bhengra,J.
This Criminal appeal is directed against the judgment of conviction dated 1.3.2001 and order of sentence dated 2.3.2001 in S.T. No. 656 of 1998 passed by the learned, 2nd Additional Sessions Judge, Palamau, Daltonganj whereby the above named appellant has been found guilty for the offence punishable under section 498A of the Indian Penal Code as also section 4 of the Dowry Prohibition Act and accordingly, he is convicted under both the sections, though he is acquitted for the offence punishable under sections 364 and 302 of the Indian Penal Code and section 3 of the Dowry Prohibition Act, and sentenced to undergo rigorous imprisonment for three years with fine of Rs.10,000/-. It is observed that if any default of payment of fine is made, he shall undergo R.I six months under section 498A I.P.C. It was further observed that the convict appellant shall undergo rigorous imprisonment for two years with fine of Rs.5000/- and if any default of payment of fine is made, he shall further undergo six month R.I under section 4 of the Dowry Prohibition Act 1961. Both the sentences have been ordered to run consecutively. It is further directed that fine amount, if paid, shall be given to the victim lady. 2 2. The prosecution case in brief is, as per Fardbayan lodged by one Basudeo Sao before Meral Police Station on 2.11.1997, who is the informant in this case, recorded under sections 364/498A of the Indian Penal Code as also under sections 3 and 4 of the Dowry Prohibition Act by the Sub- Inspector of Meral Police station leading to Dhurki P.S.Case No. 48 of 1997 dated 03.11.1997 that about seven years ago, the informant's daughter, namely Jaswanti Devi was married to Bindu Sao. After two years of the marriage, Jaswanti Devi had gone to her Sasural, where after four months Bindu Sao, his parents and brother started demanding 12,000/-, one cow and one bicycle but the same was not fulfilled by the informant due to poverty. It is further alleged that since dowry was not given in the month of Baisakh, the members of in-laws family, after assaulting Jaswanti Devi, had thrown her in Bulka Khardaha Jungle, but she somehow survived and was revived and had stayed in the house of Khatoona Bibi, who subsequently reached Jaswanti Devi to her Naihar at 7 in the morning. Then Bindu Sao's elder brother Vijoy Sao had come and seen her and gone away. After six months a Panchayati was held, and thereafter Jaswanti Devi had gone to her Sasural. It is further alleged that on 30.10.1997 Bidai was performed but again the demand was made for cycle and money. Then in the last week of the said month Vijay Sao, elder brother of Bindu Sao, Vijoy Sao came to search for Jaswanti Devi in her Naihar then the informant had got suspicion and questioned him unsuccessfully and also started searching her, but could not find her. The informant suspected that Bindu Sao and Ramjee Sao who is his friend and the members of in-laws family might have abducted and committed murder of Jaswanti Devi for dowry demands, as such, the F.I.R was lodged.
3. The prosecution has examined altogether 17 witnesses i.e. P.W.1 Manu Singh, P.W. 2 Basudeo Sao, P.W.3 Ramdhani Sao, who has been declared hostile, P.W. 4, Ramgati Sao, who has been declared hostile, P.W.5 Upendra Sao, who has been declared hostile, P.W.6 Bartu Sao, who has been declared 3 hostile, P.W.7 Bishundhari Sao, who has been declared hostile, P.W.8 Amerika Sao, who has been declared hostile, P.W.9 Akalu Sao, who has been declared hostile, P.W. 10, Dasarath Sao, who has been declared hostile, P,W.11 Keshwar Sao, who has been declared hostile, P.W. 12 Harihar Sao,who has been declared hostile, P.W. 13 Mandip singh who has been declared hostile, P.W. 14 Jagdish Singh, P.W. 15 Suman Sao, P.W. 16 Ramji Sao and P.W.17 Mujibullah Khan, who is the formal witness.
4. In course of the trial of this case incidentally the victim lady Jaswanti Devi of this case somehow appeared after having freed herself and as such she has been examined as a Court Witness no.1. C.W2is the another court witness Khatoona Bibi.
5. The learned trial court for the purpose of perspective and comprehension and convenience had categorized the witnesses into six categories as follows :- In the first category the witnesses are hailing from the informant's place Baliya who are hostile to the prosecution namely P.W.3, P.W.4, P.W.5. In the second category the witnesses from village Baliya are there who are not declared hostile by the prosecution namely P.W.1, P.W.14, P.W.15 and P.W.16.The third category would be constituted by the informant P.W. 2 alone. The fourth category comprises the hostile witnesses from village-Chundi namely P.W.6, P.W.7, P.W.8, P.W. 9, P.W. 10, P.W.11, P.W. 12 and P.W.
13. The fifth category is of P.W17who is the formal witnesses and finally the sixth category comprises the evidence of C.W.1 and C.W2 For our purpose, the evidence of P.W.2, P.W. 5 and P.W. 14 and C.W. 1 and C.W.2 are significant.
6. P.W. 2 is the informant of the case and father of the victim lady. He was testified that his daughter began complaining after a couple of months from the marriage against her in-laws including her husband. She was tortured and panchaiti was conducted several times but her in-laws remain undeterred. Prior to the instant occurrence she was also dumped in Bulka Khardaha Jungle treating her dead but she was saved by the provident. For the umpteenth occasion again a Panchayti was 4 conducted and she was sent to her in-law place with her husband accused Bindu Sao. Thereafter, about 15-16 days lapsed and he was informed that his daughter was missing from her matrimonial home. It has been unequivocally testified in para 5 that her in-laws had been consistently demanding cash amount of Rs. 10,000/- and bicycle. It is further stated in the same para that the informant P.W.2 had earlier given Rs. 22,000/- to them having sold twenty two kathas of his land. After the victim lady got disappeared, a hectic search was made and when she could not be traced, the informant came out with the instant case. He has proved his signature as well the signatures of P.W.1 and P.W.5 which are proved and marked Ext.1,1/1 and 1 /2, respectively P.W.2 has identified both two accused in the dock. It has emerged in the cross-examination that P.W.2 could not say as to where Jagat Sao met his daughter. The victim Jaswanti accompanied her father P.W2in the court room. P.W2 has denied the defence suggestion regarding elopement of the victim voluntarily with some other person. Since the victim Jaswanti appeared in the court itself as is evident from para 10 of the P.W2the charge under section 302 IPC stood dismantled and demolished.
7. Then It appears that though P.W.3, P.W4 and P.W5have been declared hostile by the prosecution even then all these three witnesses testified to the fact that the victim Jaswanti Devi disappeared from her conjugal home.Though P.W. 3 has expressed ignorance as to how the victim disappeared, vide para 2; P.W.4 has explicitly deposed that her in-laws must have removed her from the place in para 1 of the chief but it has been elicited in para 8 of the cross-examination that the witness was ignorant regarding the perpetrator of the crime. Both P.W3 and P.W4 have deposed that the victim Jaswanti is alive, P.W3para7 P.W.4 para 9 apart from P.W5para 3 where she was witnessed by the witness about three months ago at her fraternal place. Though the complicity of the accused facing trial could not be hinted at or much less proved in the evidence of these witnesses but the only fact that emerges proved is that 5 the victim Jaswanti Devi disappeared from her conjugal home. The victim Jaswanti Devi was handed over by her father-in-law accused Jagat Sao to her father Basudeo Sao, the informant of the case. The cross-examination para 15 of P.W. 5 reveals that in fact the accused put forward demand of dowry in presence of this witness and a panchaity was also conducted.
8. C.W1 is the victim Jaswanti Devi herself who could not be traced and located even till the submission of the charge sheet by the police in this case and for that matter till the framing of the charge. She appeared along with her father who is informant of the case as is evident from the evidence of P.W.2 at para 10 and P.W.1 para 4. Therefore, being the victim lady of this case she is an important witness and hence examined as a court witness and she has testified that about three years ago( from the recording of the evidence on 20.9.2000) she was in her bridal home in village Chundi and she was taken out of the house by her husband Bindu Sao and father-in-law Jagat Sao on the pretext of harvesting of paddy crops. She was not accustomed to going out of the village. She could not locate the whereabouts of the places, she was passing through and she was transported to a place by railway and there she was engaged in harvesting for two days and thereafter her husband and father-in-law absconded without her notice and she was confined there by the unknown persons who succeeded in keeping her in confinement for about two years where she was used as a domestic help .Somehow or the other she could emancipate herself eventually and was handed over to Garhwa court. The victim has unequivocally deposed further that prior to this occurrence the accused persons used to assault her and also raised demand of bicycle. Panchaity was also conducted and with the intervention of the Panches she was sent to her conjugal home. The victim also expressed her desire in para-5 that she could still live with her husband. The victim C.W.1 has been subjected to rigorous and rather lengthy cross-examination on the point of her having been taken out of home by her husband and her father-in-law to some unknown place because 6 neither the name nor the location of the place could be given by the victim lady. It has been extracted in para72 that she used to narrate her predicament to her father regarding the demand of rupees ten thousand as well as a by-cycle apart from the factum of assault and torture meted out to her. She has explicitly and specifically deposed regarding assault, torture and demand of dowry items as against her in-law and such testimony is evident in the cross-examination in para 72 as afore stated.
9. The witness of P.W14 is significant to the fact that in para 3 of the deposition he has stated that the panchayati was held regarding the fight between Jaswanti Devi and Bindu Sao and he was present in the Panchaity. Arguments 10. The learned counsel for the appellant has defended him(appellant) by raising the following points. He submitted that there are certain discrepancies in the fardbeyan/FIR. Such as that regarding the alleged demand made by the husband and the in-laws of the daughter. In the fardbeyan of the P.W2 the demand is for Rs.12,000/- while in his deposition he says it was for Rs. 10,000/-. Likewise, regarding the demand the father of the victim lady, P.W.2 in his fardbeyan saying that a cow was also demanded but in his deposition no cow is mentioned. These two discrepancies show that the demands or no demands were made for dowry.
11. The learned counsel for the appellant has then sought to discredit the deposition of the victim lady or C.W.1.He says that it is unbelievable that even though she has alleged confinement in some village for a long year, she has not mentioned the name or names of any person or person by whom she was confined nor the name of the village. Further the counsel for the appellant says that C.W.1 had in her deposition said that her husband and father-in-law left her with someone for labour while Basudeo Sao in his deposition says that he cannot say where Jagat Sao had taken his daughter. Therefore there is discrepancies in the deposition of C.W1 as 7 well as when compared to deposition of Basudeo Sao and hence no case is made out against the accused.
12. Regarding the demand, he says that no willful deliberate demand was made to bring it within the ambit of section 498A of the IPC. Further, most of the witnesses as per the counsel for the appellant have turned hostile, hence there is no case made out beyond doubt.
13. Counsel for the appellant has also relied upon a decision in the case of Shanker Pd.Sao Vs. State reported in 1991(1) Cr.L.J639and argued that mere demand of dowry is not an offence, it should actually be given or agreed to be given.
14. For all the aforementioned reasons, no conclusive case is made out against the accused/appellant, hence the charges need to be dropped. Finally he says that as the accused has already spent much time in prison and as far as section 4 of the D.P. Act, he has already spent six months, so a lenient view may be adopted.
15. The learned counsel for the State on the other hand submitted that the informant (P.W2), who is the father of the victim lady,has specifically in his fardbeyan accused the appellant of making certain demands and this he has again reasserted in his deposition. Further it has been stated in deposition that she was harassed by her husband, who assaulted her and left her dead in the Jungle but some how she survived. Regarding the demands, it has been deposed that a cycle was demanded as well as Rs 10,000/-.Moreover, he had already sold land and and given them 22,000/-. Learned A.P.P has further stated that C.W1 in her deposition has also mentioned the demands made for cycle and that the mother-in- law, father-in-law and everybody used to hit her and in this regard Panchayati was done. He has also referred to the evidence of C.W.2 Khatoona Bibi, who found her sitting near a village, gave her some food and reached her to her village. Conclusions 16. Having gone into the records, the arguments of both 8 counsels and the emerging facts and circumstances, the guilt of the appellant of the offencs under section 498A of the Indian Penal Code and 4 of the Dowry Prohibition Act seems to be sustained..
17. To appreciate better the offences committed by the appellant it would be good to see the plain and simple language of the relevant section 498A IPC and Section 4 of the Dowry Prohibition Act. From the plain language of these two sections and as placed against the facts, it is clear that the offences are committed. Section 498A of the Indian Penal Code reads as :- Husband or relative of husband of a woman subjecting her to cruelty :- “Whoever, being the husband or the relative of the husband of a woman,subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purpose of this section,”Cruelty”means- (a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health( whether mental or physical) of the woman;or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account failure4 by her or any person related to her to meet such demand.” Section 4 of the Dowry Prohibition Act, 1961 reads as :- 4. Penalty for demanding dowry:- “If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six 9 months.”
18. Section 498A of the IPC deals with cruelty which is any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman and secondly harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. With regard to the section 4 of the D.P.Act it lays down the punishment for demand of dowry.
19. It may be appropriate here to first refer to the Panchayti, that has been referred to by various persons, including P.W.2,C.W.1,P.W.5 and P.W.14 and does not seem to be denied. So Panchayti was done, Panchayti is also done on some agenda. From the combined versions of P.W. 2,C.W1, P.W.9 and P.W. 14 it seems that there was harassment of the victim lady and her family on account of demands made by the appellant for money, cow and bicycle and there used to be tensions and fight between husband and wife and Panchayati was done, not only once, but more than once.
20. The fardbeyan of P.W. 2 mentioned the demand for the items, and he has been consistent about them in his deposition later. The deposition of C.W.1 also supports and reinforce what has been said by P.W2 about the demand. Minor discrepancies about amount does not make much of difference otherwise Panchyti would not have taken place. The witness of CW.2 though small supports, the version of P.W.2 that she was earlier left in the jungle of Bulka Khardaha. Now being left in a jungle in Jharkhand, could have resulted in danger and harm to her limbs or life by any animals or even by criminals or by the sheer elements of nature. Thus would amount to cruelty under 498A IPC.
21. The second significant time is when she is apparently left with some unknown persons, in some unknown persons place, where she is made to do labour. Doubts have been raised about this charge, but it would seem consistent with behaviour of cruelty, that was the subject matter of the 10 Panchayti meeting and hence not totally unbelievable.
22. Therefore on the basis of records, arguments and the facts and circumstances of the case the guilt of the appellant under section 498A IPC with section 4 of Dowry Prohibition Act is sustained.
23. That it seems the appellant has already spent 3 years and 3 month in custody. He would thus have already undergone the period of punishment for section 498A IPC. Thus his sentence for section 4 of the Dowry Prohibition Act, 1961,remains. It seems that he has already spent an additional 3 months,hence keeping that he has already undergone some custody, faced the vigor of trial and had attended panchayti and does not seem to be a habitual offender, the sentence for section 4 of the D.P. Act is modified to six months imprisonment subject to the period already undergone. The learned Trial Court below is directed to issue process for the appellant's rearrest to serve out the remaining period of the modified sentence of six months under the D.P. Act,1961.If otherwise period has already been served in custody, then appellant will be discharged from the liability of his bail bond.
24. Hence, this Criminal Appeal is dismissed with the above modification in sentence. (Ratnaker Bhengra,J) Jharkhand High Court,Ranchi Dated 13 -10-2015/SD(AFR)