Pradeep Kumar, J.@mdashThe appeal is directed against the judgment of conviction dated 19.4.2007 and order of sentence dated 20.4.2007 passed by Shri Prasanna Kumar Dubey, Sessions Judge, Gumla in Sessions Trial No. 108 of 2006, by which he found the appellant guilty u/s 304(B) of the Indian Penal Code and convicted him thereunder to undergo R.I. for 7 years.
2. The prosecution case was started on the basis of a Fardbeyan given by the informant, Anup Kumar Sahu (P.W.10) on 23.2.2006 stating therein that his sister, Rekha Kumari was married with Law Sahu, son of Sri Ganpat Sahu in the year 2001 according to Hindu Rites. At the time of marriage a cash of rupees 1 lakh and other articles were given as dowry. After marriage his sister went to her Sasural and started living there with husband, Law Sahu. Subsequently, his father deposited Rs. 50,000/- in the name of his sister and brother-in-law in the Bank. It is alleged that subsequently his brother-in-law started pressing his sister for withdrawal of that money, but her sister always refused whereupon the accusedappellant, Law Sahu tortured and assaulted her. In January, 2005 when he assaulted his sister badly then she came to her house. Subsequently his brother-in-law also came and stated that unless they will give the money he will not take his sister to his house and left. On 22.2.2006 he came with his sister to the house of his brother-in-law, Law Sahu. In the night his sister cooked food for every body and at about 8 P.M. in the night all of them went to their room for sleeping. It is further stated that at about 10 P.M. in the night mother of his brother-in-law started shouting as to what you have done whereupon the informant went there and found his brother-in-law was standing there with a Tangi in his hand and blood is coming out of neck of his sister and she died. Then, he also started shouting on which the neighbours also came whereupon the accusedappellant, Law Sahu threw Tangi and ran away.
3. On the basis of the said F.I.R. the police registered a case under Sections 302 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act. On completion of the investigation the police submitted charge-sheet u/s 304( B) of the Indian Penal Code against the accused-appellant. Since, the case was exclusively triable by the court of sessions and hence the learned Magistrate after taking cognizance of the cases committed the same to the court of sessions where the trial was held and the appellant was found guilty and convicted as aforesaid.
It is submitted by the learned Counsel for the appellant that the appellant was charged only u/s 304(B) of the Indian Penal Code and after trial in spite of fact that ingredients of Section 304(B) was not fulfilled and as such the learned trial court wrongly convicted the appellant u/s 304(B) of the Indian Penal Code. It is further submitted that as has been held in the case of
(i) The death of woman must have been caused by burns or bodily injuries or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry.
It is further submitted by the learned Counsel for the appellant that (i) first ingredient is there, that she died an abnormal death, (ii) 2nd ingredient is also there that the death occurred within seven years of her marriage but there is no evidence that soon before her death the woman was subjected to cruelty or harassment by her husband and that harassment is in connection with demand of dowry and as such the conviction of the appellant is bad in law and fit to be set aside.
4. On the other hand, learned Counsel for the State has submitted that the cruelty and harassment for not giving the dowry was continuing soon before her death and when she came without the money she was done to death by the appellant-husband and as such all the ingredients have been fulfilled and the appellant has rightly been convicted u/s 304(B) of the Indian Penal Code.
5. After hearing the parties and going through the evidences, I find that in course of trial the prosecution has examined 11 witnesses. P.W.1 is Umesh Sahu, witness of inquest, P.W.2 is Basant Sahu, P.W. 3 is Rupesh Sahu, P.W.4 is Jitni Devi, P.W.5 is Bhikhu Sahu, P.W.6 is Bisheshwar Sahu, P.W.7 is Dr. Pawan Kumar Minz, who conducted the postmortem on the body of the deceased, P.W.8 is Ramji Prasad, brother of the deceased, P.W.9 is Arvind Prasad, who has been tendered by the prosecution, P.W.10 is Anup Kumar Sahu, who is informant and P.W.11 is Parsuram Roy, who is Investigating Officer of the case.
6. The defence has also examined 2 witnesses, namely, D.W.1, Arjun Sahu @ Umesh Sahu and D.W.2, Ganpati Sahu, who is father of the appellant.
7. It appears that the prosecution case with regard to demand of dowry and subsequent torture and death of the victim, has been supported by the evidences of the informant (P.W.10), his other brother (P.W.8) and his father (P.W.6) and the fact that she was done to death by her husband in his room, has been proved by the evidence of the informant (P.W.10), mother of the accusedappellant, Jitni Devi (P.W.4) and the inquest witnesses, P.Ws. 1,2,3 and 5. The factum of murder by the husband with Tangi has also been proved by the evidence of the doctor Pawan Kumar Minz ( P.W.7) and the Investigating Officer ( P.W.11).
P.W.10, Anup Kumar Sahu stated in Court that the victim was married with accused-appellant, Law Sahu and on 22.2.2006 the date of occurrence he came to the house of his sister and thereafter taking tea and dinner he slept in the house of his brother-in-law, at about 8 P.M. in the night he heard shouting of appellant''s mother as to what he has done, thereupon he came to the room of his brother4 in-law and found that the neck of his sister has been cut and his brother-in-law was standing with a Tangi, on which he started making ''Hullah'' whereupon neighbourers came then the accusedappellant, Law Sahu threw the Tangi and ran away. He further stated that money was deposited in the Bank in the name of his sister and brother-in-law. The accused-appellant, Law Sahu was demanding that money since his sister refused to withdraw the money, hence she was killed. He proved his statement in the F.I.R. as Ext.- 1/6. He further stated that police came and inquest report was prepared on which he singed. He proved his signature on the inquest as Ext.- 1/7. He also singed the seizure-list of Tangi and identified his signature as Ext. 1/8.
In his cross-examination, he stated that his sister was educated and the money was deposited by his father. He also stated that the accused-appellant, Law Sahu had said that unless money is given he will not take back his sister. Hence on 22.2.2006 he brought his sister to his brother-in-law''s house.
P.W.8, Ramjee Prasad, has also stated that his sister was married with accused-appellant, Law Sahu in the year 2001 according to Hindu Rites. They had given rupees 1 lakh at the time of marriage and they had deposited Rs. 50,000/- in the Bank in the name of his sister and brother-in-law. Subsequently, his brother-inlaw started pressing his sister for withdrawal of that money and when his sister refused then he started assaulting her. After torture and assault his sister came to her father''s house subsequently the accused-appellant, Law Sahu also came and demanded withdrawal of money or to give him Rs. 30,000/-, otherwise he will not take his sister to her house on Bidai. Subsequently on 22.2.2006 his brother, Anup Kumar Sahu took his sister to her Sasural. In the night he was informed that his brother-in-law, Law Sahu has committed the murder of his sister by cutting her neck by Tangi. Then they went to the house of her sister, police came and recorded the fardbeyan. He identified his signature on the Fardbeyan as Ext- 3. He identified the accused in Court. He stated that the marriage was mediated by Umesh Sahu and there was demand of dowry. In para 5 he denied that his father had given 25,000/- as road expense it was as per the demand of the appellant''s family in dowry. He further stated that Rs. 1 lakh as dowry was given, but he cannot say as to whether it was withdrawal from the Bank or not? In para 7 he also stated that at the time of marriage itself Rs. 50,000/- was deposited in the Bank in their names. He further stated that after sometime, his brother-in-law started demanding the money deposited in the Bank and on refusal by his sister he started torturing and assaulting her. Due to excessive torture she had came to her father''s house subsequently where his brother-in-law came and refused to take her back until money is given. In para 13 he denied that the accused-appellant is mad, hence she was not living with him.
P.W.4, Jitni Devi, mother of the accused-appellant has also supported the fact that there was demand of dowry. She stated in Court that Rekha Devi is her daughter-in-law. She was murdered on 23.3.2006 at 10 p.m. in the night. She also stated that due to demand of dowry her son and daughter-in-law used to fight between them. However, she denied that she stated to the police that at about 10 p.m. hearing some sound when she went to the room of her son, Law Sahu then she found him standing with a Tangi with blood smeared on his shirt then she started shouting whereupon the informant also came and found that the accused-appellant, Law Sahu has cut the neck of his sister.
P.W.6, Bisheshwar Sahu, father of the deceased, has also stated that his daughter, Rekha Kumai was married with accusedappellant, Law Sahu and on 22.2.2006 his son-in-law, Law Sahu committed the murder of his daughter. He had deposited money in the name of his daughter and son-in-law and since money was not given to him he committed the murder. He was at Lohadagga Kuchery Road when the murder was done he got information from his son, Anup Kumar Sahu then he went to village Arya .
8. The inquest witnesses have supported the fact that the victim was done to death at her sasural by the accused-appellant. P.W.1, Umesh Sahu stated in his evidence that police came to his village, Arya on 23.2.2006 where the daughter-in-law of Ganpat Sahu was murdered and prepared the inquest report. He has identified the signature on the inquest report. He stated that the accused-appellant, Law Sahu was married in the year 2001 and since his mental balance was not good and hence he committed the murder of his wife.
P.W.2, Basant Sahu also stated that on 22.2.2006, wife of Law Sahu was murdered and police came on 23.2.2006 they seized the Tangi by the side of the dead body and prepared the seizure-list, which he signed. He also signed inquest report of the dead body.
P.W.3, Rupesh Sahu also identified his signature on the seizure of Tangi since police came to his house he went to the house of Law Sahu. He also proved his signature on the inquest report.
9. Thus, all the prosecution witnesses have proved the fact that on 22.2.2006 in the night Rekha Kumari sister of the informant was done to death and all the witnesses have stated that the accused-appellant, Law Sahu committed the murder.
The informant (P.W.10), Anup Kumar Sahu saw that the accused was standing in room of his sister with Tangi in his hand and he also saw the deceased dead and her neck was cut by the Tangi and blood was coming out from the same.
The appellant''s mother, who was examined as P.W.4 also admitted that deceased, Rekha Devi her daughter-in-law was murdered at 10 p.m. in the night on 22.2.2006. She also admitted that there used to fight between her son and daughter-in-law for dowry. However, she denied to have stated to the police that she saw her son-appellant was standing with a Tangi in his hand in his room and his cloth was smeared with blood and her daughter-in-law was dead with Tangi injuries on her neck.
P.W.7, Dr. Pawan Kumar Minz, who conducted postmortem examination, has also proved the fact that he examined the dead body of the deceased, Rekha Devi on 23.2.2006 and found that sharp cutting wound over the right side of the neck size 3"x3c.m.x2c.m. He also found that due to sharp cutting wound all the great vessels muscle cut up to the trachea and cervical vertebra. He stated that she died due to the aforesaid injuries, which was ante mortem in nature and may be caused by Tangi.
10. Thus, it has been proved beyond reasonable doubt that for not getting the dowry amount of Rs. 50,000/-, which was deposited at the time of marriage itself. Since P.W.8, Ramji Prasad has very clearly stated in paras 5,6 and 7 of his cross-examination, that dowry was demanded at the time of marriage, they had paid Rs. 1 lakh as dowry, also given Rs. 25,000/- as dowry and had deposited Rs. 50,000/- as fixed deposit in the name of his sister and brother-in7 law. It has also come from the evidence that the accused-appellant was regularly demanding Rs. 50,000/-, which was deposited at the time of marriage as dowry and he used to assault and torture the girl as stated by P.Ws. 8 and 10 due to said torture she came to her father''s house. It is stated by P.W.8 that the accused-appellant came to the house of the informant and stated that either they give the money deposited in the Bank or paid Rs. 30,000/- then he will take his wife, Rekha Devi to his house. It has been stated by P.Ws. 8 and 10 that when the accused-appellant was adamant on his demand of money and refused to take the sister then the informant took his sister to his brother-in-law''s house. On 22.2.2006 finding that she has come without the money he committed the murder in the night.
11. Thus, the torture for not giving the dowry continued till the last minute of her death and it cannot be said that soon before her death there was no torture on the victim girl since the accusedappellant''s demand of dowry was continuing and he was not bringing his wife from her father''s house without money, also amounts to torture on a woman, which continued soon before her death and as such the argument of the learned Counsel for the appellant that the ingredients of Section 304(B) of the Indian Penal Code as given by Hon''ble Supreme Court in the case of Sunil Bazaj (Supra) has not been followed, is not correct. All the four ingredients as given in the said case has been proved by the prosecution the victim was done to death in the night on 22.2.2006 in the room of her husband, there was demand of dowry and she died within 7 years of her marriage. Soon before her death the appellant''s torture for not giving the dowry amount, which was continuing and when she came to the house of the appellant on 22.2.2006 without the money she was done to death, so in this case, in my opinion, the torture for dowry was present soon before her death and not brining the wife from her father''s house amounts to cruelty and harassment, which continued till before her death.
12. In that view of the matter, the appellant was rightly convicted u/s 304(B) of the Indian Penal Code as the appellant has examined to defence witnesses, but he has proved nothing. D.W.1, Arjun Sahu @ Umesh Sahu, who is the mediator, stated that the victim Rekha Kumari was married with the accusedappellant, Law Sahu and Rs. 25,000/- was given as cost of the marriage. He further stated that the accused-appellant was under treatment of doctor, Sailendra Kumar, but he never visited nor he knows what was the ailment. He admitted that Rs. 50,000/- was deposited in the joint names. D.W.2, Ganpati Sahu stated that his son was under treatment of doctor Sailendra Kumar and he filed the prescription, which was marked as Ext. A to show that he was under treatment.
13. It is important to note that Dr. Sailendra Kumar was not examined in this case nor the two defence witnesses could say as to what was the ailment for which he was being treated by Dr. Sailendra Kumar . The prescription filed as Ext. A is of the date 1st of May, 2003 when two tablets was given to him, which proves nothing. In that view of the matter, the defence that the appellant was suffering some mental disease has not been proved and the prosecution has failed to explain as to how the victim girl died on 22.2.2006 in her house with sharp cutting injuries on her neck. The prosecution has already proved that there was demand of dowry right from the beginning and it continued till the last.
14. In that view of the matter, the appellant has committed the offence u/s 304(B) of the Indian Penal Code. He has rightly been convicted.
15. Hence, I find no merit in this appeal and the same is dismissed.
