Lakshman Uraon, J.@mdashAppellant Paresh Mandal has preferred this appeal being aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 7th February, 2001 and 22nd February, 2001 respectively, passed by the learned 5th Additional Sessions Judge, Dhanbad, in Sessions Trial No. 162 of 1999, whereby and whereunder, he was convicted u/s 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for twelve years whereas other co-accused persons are acquitted for the charge u/s 306 of the Indian Penal Code.
2. The prosecution case, in brief, is that the informant Manindra Nath Mandal (PW 1) in his fardbayan (Ext. 8), recorded by the Sri Pradeep Kumar, SI, Sindri (Goshala) Police Station, District Dhanbad, on 6.7.1998 at 15.30 hours at Mandal Tola, Kandra, has stated that his daughter Sumitra Mandal aged about 27 years was married with the appellant in the year, 1993. After marriage, appellant used to torture Sumitra Mandal for demand of Hero Honda Motorcycle. He used to assault her after taking liquor. His daughter used to be send letters to her parents house. He had also threatened to solemnize second marriage, in case of non-fulfillment of the demand. Sumitra Mandal had got a son named Rahul Mandal, aged about 2-1/2 years. Informant had assured to provide the motorcycle when he would become able to supply the same. Sumitra Mandal used to narrate regarding the assault on her due to non-fulfillment of the demand of motorcycle. On 6.7.1998 at about 12 noon Ashwani Kumar Mandal (PW 4) of village Kalu Bathan, who used to reside near Mandal Tola, Kandra, informed him that his daughter has died due to hanging. The informant went to the house of the father-in-law of Sumitra Mandal and saw nylon rope tied around her neck and she was found dead. A portion of nylon rope was hanging with the hook fixed on the roof. He felt that his daughter was either murdered by the accused persons or her daughter had herself committed suicide due to the torture made for demand of dowry. He alleged commission of the offence against appellant Paresh Mandal, his parents Bodi Mandal and Ramni Devi, besides his brother Naresh Mandal.
3. The learned 5th Additional Sessions Judge, Dhanbad, framed charges under Sections 304B and 306 of the Indian Penal Code against Paresh Mandal (appellant), Bodi Mandal, Naresh Mandal and Ramni Devi. The prosecution examined altogether 10 witnesses whereas the defence has examined five witnesses in the present case. PW 1 Manindra Nath Mandal is the informant and father of the deceased Sumitra Mandal. PW 2 Kinkar Mandal and PW 5 Sudhakar Mandal are the sons of the informant. PW 6 Kalawati Mandal is the wife of the informant. PW 3 Bidhan Chandra Mandal is the nephew of the informant and PW 4 Ashwani Kumar Mandal is the witness who informed the informant about the death of Sumitra Mandal. PW 7 is Dr. Bibhuti Bhushan, who has formally proved the Medical Certificate (Ext. 4). PW 8 is Hansa Mandal, who does not know how Sumitra Mandal died and hence he has been declared hostile by the prosecution. PW 9 Dr. Shailendra Kumar has conducted the post- mortem examination on the dead body of Sumitra Mandal and PW 10 Kailash Mandal is a witness on the inquest report. The defence has examined DW 1 Haradhan Mandal, DW 2 Dayal Chandra Mandal, DW 3 Bidhan Mandal, DW 4 Amrit Mandal and DW 5 Prabhash Mandal, who have deposed that there was good relationship in between this appellant and his wife Sumitra Mandal (deceased). The appellant is in service and gets a handsome salary and, as such, no question of demand of any dowry arises.
4. Learned 5th Additional Sessions Judge considered the evidence, oral and documentary adduced by both the parties and convicted the sole appellant u/s 304B of the Indian Penal Code. However, he has acquitted the other three accused for the charges framed against them under Sections 304B and 306 of the Indian Penal Code. He also acquitted the appellant for the charge leveled against him u/s 306 of the Indian Penal Code.
5. Assailing the judgment and order of conviction and sentence, passed against this appellant, the learned counsel has submitted that in this case, the Investigating Officer has not been examined which has caused as serious prejudice to the appellant. The letter (Ext. 1), alleged to have been written by deceased Sumitra Mandal, addressed to her father, which was found under the bed of the deceased, is not in her pen, as she was illiterate. The informant, who is father of the deceased, has stated that Sumitra Mandal was literate but he did not produce any document to show her educational qualification. The informant himself has not supported the demand of dowry. The appellant is an employee of Bharat Coking Coal Limited and gets a handsome salary. PW 10 Kailash Mandal has deposed in paragraph Nos. 3 and 4 that he had never heard Paresh Mandal demanding dowry. On the other hand, there was cordial relationship in between Paresh Mandal and his wife Sumitra Devi. He had never seen any torture or assault made to Sumitra Devi by this appellant. PW 6 Kalawati Mandal, mother of the deceased, has deposed that she had no grievance against the appellant.
6. Learned APP has submitted that Sumitra Mandal died unnatural death in her father-in-law''s house within seven years of her marriage with this appellant. She died due to hanging. The doctor (PW 9) who conducted the post mortem examination on the dead body of Sumitra Mandal, found ligature mark 3/4" wide, situated between larynx and chin, going upward and backward obliquely along the line of mandible with irregular impression of knot at the left angle of lower jaw. He found rope on her neck and opined that the cause of death was due to asphyxia, as a result of hanging. The informant Manindra Nath Mandal (PW 1), Kinkar Mandal (PW 2), Bidhan Chandra Mandal (PW 3) and Sudhakar Mandal (PW 5) have supported the prosecution case that Paresh Mandal (appellant) used to torture Sumitra for Hero Honda Motorcycle, resulting her death by hanging.
7. In the present case, the appellant has been convicted u/s 304B of the Indian Penal Code. The fact that Sumitra Mandal died in the house of her father-in-law within seven years of her marriage is not in dispute. They only point for consideration is as to whether the prosecution has proved its case that soon before the death of Sumitra Mandal, she was subjected to cruelty or harassment by her husband (appellant) in connection with the demand of Hero Honda Motorcyle. PW 1 (informant) in his fardbeyan (Ext. 8) is not definite as to whether his daughter Sumitra Mandal was murdered or she has committed suicide, due to torture for dowry demand. PW 1 when informed by PW 4 Ashwani Kumar Mandal, went to the father-in- law''s house of Sumitra Mandal and saw her dead having a rope tied around her neck. He alleged that his daughter used to write letters to him regarding demand of Hero Honda Motorcycle, otherwise she would be murdered. This witness has not produced any letter, written to him by his daughter regarding demand of dowry. He has also not informed the police or anyone regarding the torture for demand of dowry. He has also not produced any document to show that Sumitra Mandal was matriculate, although he claims that Ext. 1, the letter, found under the bed of the deceased, was written by her. In that room no other paper or exercise book alleged to be in her writing was found where Sumitra Mandal was found dead due to hanging. His wife Kalawati Devi (PW 6) has not alleged anything regarding demand of dowry by this appellant. On the other hand, she has given another story by stating that her daughter was crushed to death by a vehicle. She had no grievance against this appellant. Her statement is also corroborated by PW 10 Kailash Mandal, who is a witness on the inquest report, prepared by the IO on which he has signed (Ext. 3/1). He had never heard demand of dowry made by this appellant or the other members of his family. He deposed that there was cordial relationship in between the appellant and his wife Sumitra Mandal (deceased). Paresh Mandal is in the services of BCCL and receives a handsome salary. The evidence of these witnesses gets strengthened by the evidence of DW 1 Haradhar Mandal, DW 2 Dayal Chandra Mandal, DW 3 Bidhan Mandal, DW 4 Amrit Mandal and DW 5 Prabhash Mandal that appellant Paresh Mandal had never accepted any dowry. After his marriage also he never demanded any dowry and Sumitra Mandal was never tortured by this appellant rather cordial relationship was there in between them. The only bad habit of the appellant was that he was addicted to liquor due to which Sumitra Mandal had threatened that if he would not leave the habit of taking liquor, she would commit suicide. At the time of the alleged occurrence, appellant Paresh Mandal was on his duty. When he returned home, he found his wife dead. He became unconscious, fell down and sustained injuries. The police sent him to hospital for treatment. All these defence witnesses have deposed that Sumitra Mandal committed suicide in absence of this appellant. DW 3 Bidhan Mandal was on visiting terms with the family of the appellant Paresh Mandal. He has deposed that Sumitra Mandal was illiterate and she was knowing only to sign. Ext. 1 is not in the pen of Sumitra Mandal. She had requested him to find out a coach for her son.
8. The death of Sumitra Mandal is not in dispute. Dr. Shailendra Kumar (PW 9) conducted post mortem examination on the dead body of Sumitra Mandal on 7.7.1998 at 11 a.m. and found the following injuries :
"(1) Ligature mark--3/4" wide situated between larynx and chin going upwards and backwards obliquely along the line of mandible with irregular impression of knot at the left angle of lower jaw. It was continuous and about 13" in length, dark brown in colour, hard, lathery and parchuncut like with multiple small ante mortem abrasions along the martins. Pattern of strains of the rope was visible in the ligature mark. No other injury was found. Dried stains of saliva were found on the right side running down vertically over the blouse and over the breast urinary stains were found along the inner aspect of right thigh and leg. Faecal matter was coming out of anus.
On dissection, subcutaneous tissue underneath the ligature mark was dry white and glistening. Hyoid, larynx, trachea and thyroid were intact. Blood mixed froth was present in trachea and larynx, mucosal of which were congested. Left side of heart was empty and the right side contained a little dark fluid blood. Stomach contained about 40 cc of brownish fluid with no particular smell. Bladder was empty. Uterus was normal and non- pregnant. Other internal organs were congested.
In the opinion of the doctor time elapsed since death was 24 house (+ -six hours) and the cause of death was due to asphyxia, as a result of hanging.
The doctor has opined that hanging is usually suicidal."
9. In the present case, Ext. 1, alleged to have been written by Sumitra Mandal, has not been proved by the prosecution as her father (PW 1) did not produce any letter, written by her prior to the alleged occurrence regarding demand of motor cycle, torture and assault to her by her husband i.e. appellant Paresh Mandal. He has even not produced any document to show that she was literate. He did not inform the police or any other villager regarding the torture or demand of dowry. There is no independent witness to support the prosecution case that soon before the alleged death, due to hanging, she (Sumitra Mandal) was subjected to torture for demand of Hero Honda Motorcycle. On the other hand, PW 6, mother of deceased Sumitra Mandal, has deposed that she died of having been crushed by a vehicle. She (PW 6) had no grievance against this appellant. PW 10 Kailash Mandal, an independent witness, has also deposed that there was no torture for demand of motorcycle or any dowry by this appellant rather there was cordial relationship in between them. I have already discussed the evidence of the defence witnesses, who have stated that there was no demand of dowry made by this appellant, who is himself, an employee of BCCL and, gets handsome salary. The only grievance against him by his wife Sumitra Mandal was that he used to take liquor to which she had asked him not to take otherwise she would commit suicide. Paresh Mandal could not get rid of drinks resulting commission of suicide by his wife Sumitra Mandal. This appellant was not even present at the time of hanging of his wife Sumitra Mandal in his home rather he was on his duty at BCCL. When he returned back home at 5 p.m. he saw his wife dead, as a result of which he became nervous and fell down resulting injury on his forehead. He was referred for treatment by the police. On 6.7.1998 the doctor S.B. Prasad, Medical Officer-in-Charge, Primary Health Centre, Jharia, examined Paresh Mandal at 4.30 a.m. and found abrasion over parietal region of skull 1/2" x 1/2" simple in nature caused by hard and blunt object. This certificate was admitted in evidence on the admission of the prosecution and marked as Ext. A. This injury report (Ext. A) also corroborated the evidence of PW 6, PW 10 and all the five defence witnesses that there was cordial relationship in between Paresh Mandal and his wife Sumitra Mandal. When Paresh Mandal returned home at 5 p.m. after duty, he saw his wife dead. As he had great love and affection for his wife, he became nervous and fell down, resulting injury on his parietal region of skull. The IO sent him for treatment and Ext. A is the certificate to prove injury, sustained by him, which supports the case of the defence.
10. Only the interested witnesses i.e. PW 1 Manindra Nath Mandal, Informant and father of the deceased, his son PW 2 Kinkar Mandal and PW 5 Sudhakar Mandal have deposed that Sumitra was being tortured by this appellant only for demand of motorcycle. The evidence of these interested witnesses could not be corroborated by any other witness. The IO has not been examined in this case, which has caused prejudice to the appellant. The prosecution has relied on the letter (Ext. 1), alleged to have been written by the deceased. PW 3 Bidhan Chandra Mandal, cousin brother of the deceased Sumitra Mandal, had gone to the police station and informed about the alleged occurrence. He returned back to the PO village along with the police. He has deposed that the police on search found a letter, kept under the bed on the palang. He claimed that the said letter was written by Sumitra Mandal. The IO seized that letter and prepared seizure list, on which he put his signature (Ext. 3). The witness could not produce any other letter, written by his cousin sister Sumitra Devi for the comparison by any hand writing expert. The other witnesses i.e. PW 1, PW 2 and PW 5 have also failed to produce any letter written by Sumitra Mandal, to show that Ext. 1 was in the pen of deceased Sumitra Mandal. PW 3 Bidhan Chandra Mandal, cousin brother of the deceased, has very clearly deposed in paragraph No. 6 of his evidence that he can not say as to whether the letter, which was recovered, was written by his sister or not. The doctor (PW 9), who conducted the post mortem examination, did not find any other injury on the person of the deceased except the ligature mark on her neck. The doctor found thyroid, larynx, trachea and hyoid intact. This shows that no force was used on Sumitra Devi, prior to her hanging. The other objective finding where the dead body was found hanging, could not be brought on record due to non-examination of the IO.
11. When considered the evidence of the interested witnesses, I find that the prosecution has failed to adduce evidence of independent witness regarding torture for demand of motorcycle just prior to the death of Sumitra Devi by hanging. PW 6, who is mother of the deceased, has deposed that her daughter died of being crushed by a vehicle whereas PW 10 Kailash Mandal, an independent witness, has stated that there was cordial relationship in between the deceased and the appellant. At the time of the alleged occurrence, Paresh Mandal was on his duties. When he returned back he saw the dead body of his wife, became nervous, fell down and sustained injury on his head, was corroborated by the medical certificate, which has been admitted on admission by the prosecution. The evidence of these witnesses i.e. PW 6 Kalawati Devi and PW 10 Kailash Mandal gets support by the evidence of the defence witnesses, who are five in number, besides the evidence of PW 6 Kalawati Devi, mother of the deceased, who had no grievances against her son-in-law (appellant). PW 2 Kinkar Mandal, PW 3 Bidhan Chandra Mandal and PW 5 Sudhakar Mandal have deposed that they have gone to the police station and informed the police about the alleged occurrence. But their statements, prior to recording of the fardbeyan (Ext. 8), were not brought on record. At the time when the police went to the room where Sumitra Devi was found hanging, only the interested witnesses were present. The other independent witnesses of the village, including the appellant, were not present there. The defence suggested that they managed a letter, alleged to have been written by Sumitra Devi and kept the same under the bed of the deceased, seems to be probable. There is possibility that the appellant could not get rid himself of the addiction of liquor for which his wife had threatened to commit suicide. There was cordial relationship in between them. But he could not leave the bad habit of drinking, resulting commission of suicide is also clear from the post mortem report (Ext. 5). Subsequently the prosecution developed a story in the fardbeyan of the informant PW 1 (Manindra Nath Mandal) without bringing the earlier statement, made before the police at the police station by PW 2 Kinkar Mandal, PW 3 Bidhan Chandra Mandal and PW 5 Sudhakar Mandal, who had gone to the police station, informed the police and came to the place of occurrence along with the police, as the police station is at a distance of about 4 kms. from Mandal Tola, Kandra. Due to non- examination of the IO these facts could not be brought on record which creates doubt in the prosecution case. There is no eye-witness of the alleged occurrence, as no one was present when Sumitra Devi was found hanging on the roof.
12. Learned Court below has erroneously relied on Ext. 1, the letter alleged to have been written by the deceased Sumitra Devi and wrongly appreciated the evidence of the interested witnesses, which remained uncorroborated by any independent, reliable and village witness to come to the conclusion that this appellant is responsible to cause death of his wife Sumitra Devi due to hanging. Furthermore there is total absence of any legal evidence on the record that the deceased was treated with cruelty for the demand of dowry immediately soon before her death by the appellant or his relatives.
13. In the result, I find merit in this appeal, which accordingly, succeeds and is allowed. The judgment and order of conviction and sentence, passed by the learned 5th Additional Sessions Judge, Dhanbad, in Sessions Trial No. 162 of 1999 is hereby set aside. As the appellant is in custody, hence it is ordered that he be released forthwith from the custody, if not wanted in any other case.
Vishnudeo Narayan, J.
I agree.
