Ftc-Ix vs The State Of Jharkhand
2021 Latest Caselaw 797 Jhar

                                       1


       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Cr. Appeal (S.J.) No. 880 of 2003

(Against the judgment of conviction dated 05.05.2003 and order of sentence
dated 23.05.2003, passed by learned Additional District & Sessions Judge,
FTC-IX, East Singhbhum, Jamshedpur in Sessions Trial No. 511/95)
Raghubir Singh, son of Late Makhan Singh, resident of Near Uphar Cinema,
Ratu Road, PS- Sukhdeo Nagar, District-Ranchi.             ....Appellant

                               --Versus--

The State of Jharkhand                                          ....Respondent
                                      --

PRESENT : THE HON'BLE MR. JUSTICE RATNAKER BHENGRA

--

For the Appellant : Mr. Rajesh Kr. Dubey, Amicus Curiae;

Mr. G.K. Sinha, Advocate.

   For the State      : Mrs. Priya Shreshtha, A.P.P.

                                       --
Reserved on: 12/07/2019                     Pronounced on: 19 /2 /2021
                                      ...

RatnakerBhengra, J.:

      Heard the parties.

2. It is noted that the appellant was not represented either personally or through his counsel on few dates. Thereafter, appellant was noticed and the office notes indicates that notices was also served to him, however, even then nobody had appeared on behalf of the appellant and therefore, Mr. Rajesh Kr. Dubey, Advocate, was appointed as amicus curiae to argue out the case on behalf of the appellant. Mr. G.K. Sinha, the learned counsel for the appellant had also appeared. The State is represented by Mrs. Priya Shrestha, learned APP.

3. This appeal is directed against the judgment of conviction dated 05.05.2003 and order of sentence dated 23.05.2003, passed the by learned Additional District &Sessions Judge, FTC-IX, East Singhbhum, Jamshedpur in Sessions Trial No. 511/95 by which learned court-below has been pleased to convict the appellant under section 4 of the Dowry Prohibition Act, 1961 and section 498-A IPC. The appellant was sentenced under section 4 of the Dowry Prohibition Act for RI of six months and fine of Rs. 500/- and in default of which, he was to undergo SI for 15 days. Further, appellant was sentenced under section 498-A IPC for RI for two years and fine of Rs.500/- and in case of default in making payment of fine he was to undergo SI for a period of 15

days. Learned court below further ordered that both the sentences shall run concurrently and the period during which appellant had remained in judicial custody in this case may be set off from aforesaid period of imprisonment.

4. The prosecution case arises out of a complaint case,bearing No. C/1- 130/94 filed by the deceased Dalbir Kaur, the deceased, before the C.J.M. Jamshedpur. Complainant Dalbir Kaur stated in her complain that she was married to accused Raghubir Singh on 23.01.1989 as per Sikh rites and customs. At the time of marriage, father of the complainant gave gold ornament weighing 30 gms, silver ornament weighing 60 gms, 3 steel boxes, clothes, beds and utensils worth about Rs.30,000/- and about Rs. 35,000/- were spent in entertaining the guests and baraat etc. After marriage complainant went to her matrimonial house at Ratu Road, Ranchi where accused Raghubir Singh, Gurnam Kaur (mother-in-law) and Mohan Singh (brother-in-law) were residing. It was alleged that after few days of the marriage the aforesaid three accused persons started torturing the complainant saying that her father was a beggar and he did not give sufficient number of article in the marriage. Complainant used to narrate about the torture meted out to her to her parents but they remained silent hoping that one day or the other everything would be alright. Complainant gave birth to two daughters but after their birth the aforesaid three accused persons started torturing her more saying that she was inauspicious and she even could not give birth to a male child. They even used to beat her and keep her on starvation and asked to fetch at least Rs.40,000/- from her father so that the money can be spent on the marriage of complainant daughters. Complainant further alleged that accused Satto and Munna, who are sisters-in-law of the complainant used to visit their parental house at Ranchi and complainant used to weep before them but they instead of consoling her used to join aforesaid three accused in crushing and beating the complainant for giving birth to two female child and for not bringing the amount of Rs.40,000/- demanded by accused Raghubir Singh, Mohan Singh and Gurnam Kaur. On 22.2.1994 the aforesaid sister-in-law came to her parental home and all the accused persons including the sister-in-law started cursing the complainant for not bringing Rs.40,000/- from her father and on her slight protest they slapped, kicked and turned out the complainant from the matrimonial house with her younger daughter in lap. Thereafter, complainant came to her parental house at Jamshedpur with broken health and depression. She was taken to MGM Medical College but doctor found her suffering from mental depression. The father of the complainant

knocked at the door of local Gurudwar and Secretary of the said Gurudwara called all the accused persons for reconciliation but accused persons refused to comply with the request of the Gurudwara. Her father, a handicapped person also went to Ranchi and requested the accused persons to allow entry of his daughter in her matrimonial house but they refused to accede to the request of her father and said that she would not be allowed until the payment of Rs.40,000/- is made. Accused also refused to return the dowry articles.

5. On the basis of the aforesaid complaint case no. C/1-130 of 1994 dated 23.03.1994, Telco police station case No. 61/94 was registered for the offence under sections 498-A,406/323/34 of IPC. During investigation complainant died on 18.04.1994. On completion of investigation charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the Court of Sessions. Charges for the offence under sections 304-B & 498-A IPC and also for the offence under sections 3 and 4 of the Dowry Prohibition Act was framed against all the accused persons to which accused pleaded not guilty and claimed to be tried. Trial was held and at the conclusion of trial all the accused persons were acquitted by the learned trial court except this accused or appellant herein. The appellant was convicted and sentenced as aforesaid. Hence, this appeal.

6. Prosecution has examined altogether nine witnesses out of whom PW-4 Dayal Singh is the the father of the deceased complainant. PW-1 Pyara Singh is a seizure list witness; PW-2 Pratap Singh is granthi of Gurudwara; PW-3 Darshan Singh is raagi in Gurudwara; PW-5 is Dr. Pramod Kumar Mishra; PW- 6 Gurdeep Singh is the brother of the deceased; PW-7 Charan Singh is another seizure list witness; PW-8 Arun Kumar is the Investigating Officer of the case and PW-9 is a constable, who has proved the formal FIR which was marked as Ext.-5. Defence had also examined Dr. R.Wagjz.

7. PW-4 Dayal Singh is father of complainant Dalbir Kaur. PW-4 has stated in his evidence that his daughter Dalbir Kaur was married to Rabhubir Singh on 23.01.1989 according to Sikh rites and customs. At the time of marriage he gave furniture, beds, clothes of Raghubir Singh, gold jewellary weighing 30 grams and silver jewellery weighing 60 grams and articles of about Rs 30,000/-. After marraige his son-in-law took his daughter to his house at Ratu Road in Ranchi. The relation of his daughter with her husband and other members of family were good in beginning of the marriage but thereafter they started taunting her saying that her father was a beggar and he did not give what he was supposed to give. PW-4 further stated that when Dalbir used to come to her parental house then

Dalbir used to tell about this but they pacified her that everything would turn alright after sometime. Dalbir Kaur gave birth to two daughters but her in-laws taunted why she delivered two girls and did not deliver a boy. They also used to say to go and bring Rs.40,000/- so that marriage of her daughters can be performed. Dalbir used to write letters narrating the torture committed upon her. PW-4 has identified three letters written to him by Dalbir Kaur which was marked as Ext.-2 to Ext.-2/b. He handed all the three aforesaid letters to the daroga and seizure memo was prepared in his presence on which his son Gurdeep Singh and his neighbor Pyara Singh and one of his relative Charan Singh had signed. After receiving the letter of Dalbir, he sent his son Gurdeep to her matrimonial house and Gurdeep brought Dalbir Kaur with him. The condition of Dalbir was not good and she was not able to squat. She told Gurdeep that she was kept on starvation for last three days and she was not given food. She was beaten and was taunted upon. When he inquired from Dalbir then Dalbir repeated the same version and said that her in-laws repeatedly says to bring dowry. Dalbir was admitted in Govt. hospital but her condition did not improve and doctor advised to take her home. Dalbir Kaur then filed complaint case. PW-4 identified the signature of complainant on complain case no. C/1-130/94 which was marked as Ext.-1/e to Ext.-1/j. PW-4 further stated that he made complaint about the torture on Dalbir in the Gurudwara at Azad Basti situated at Manifit and on his complain Gurudwara Committee sent a letter to call Gurnam Kaur, the mother-in-law of the deceased, but she refused to come. P.W.-4 also handed over the copy of his complaint made to Gurudwara to the police and the seizure memo was prepared on which he had made his signature. He also handed over the copy of letter of Gurudwara Committee written to Gurnam Kaur and copy of reply of Gurnam Kaur to Gurudwara Committee. He identified the letter written to him by Gurudwara Committee and also the letter of Gurnam Kaur mentioning of her refusal to appear before Gurudwara Committee of which production-cum- seizure list was prepared and PW-4 has identified his signature on it which was marked as Ext.1/k.

8. PW-1 Pyara Singh is a seizure list witness. PW-1 has stated in his evidence that 1½ to 2 years ago, Gurdeep Singh (PW-6) handed over some papers at Telco police station and production-cum-seizure memo of those papers were prepared by the daroga on which he had made his signature. PW-1 has identified his signature on the production-cum-seizure of letters written by the

deceased and his signature was marked as Ext.-1. PW-1 has also identified the signature of Gurdeep Singh (PW-6) on the aforesaid production-cum-seizure list which was marked as Ext.-1/a. The production-cum-seizure list was marked as Ext.-'X'.

9. PW-7 Charan Singh is also a seizure witness. PW-7 has stated in his evidence that in his presence police had seized the photographs and the letters, which were in Gurumukhi and were given to police officers by Dayal Singh. PW-7 had identified his signature on the production-cum-seizure list which was already marked as Ext.1/d.

10. PW-2 is Pratap Singh, the priest(granthi) of Gurudwara. PW-2 deposed that he had performed the marriage rites of Raghubir Singh and deceased Dalbir Kaur.

11. PW-5 Dr. Pramod Kumar Mishra has stated in his evidence that he had issued the death certificate of Dalbir Kaur. Doctor stated that death certificate was filed by him and bears his signature. The death certificate was marked as Ext.-3. PW.-5 further stated that Dalbir Kaur was admitted in the hospital on 06.05.1994. In his cross-examination he deposed that he never treated Dalbir Kaur and thus cannot say as what was the cause of her death.

12. PW-6 Gurdeep Singh is the brother of deceased Dalbir Kaur. PW-6 has stated in his evidence that his sister was married to Rabhubir Singh on 23.01.1989. His sister was tortured by Gurnam Kaur, Raghubir Singh, Mohan Singh, Munna and Satto. Accused demanded Rs.40,000/- from his father and one time Raghubir Singh had also demanded money from him. In para-4, PW-6 deposed that on 22.02.1994 his sister returned to Jamshedpur. His father went to Gurudwara, Azad Basti and Gurudwara Committee wanted to have conversation with the accused persons but accused persons did not agree. He further deposed that due to torture, the mental condition of his sister was not good. She was firstly admitted in the MGM and then to TMH but she died on 17.05.1994 during treatment. In his cross-examination PW-6 stated that he came to know about torture for the first time in 1990 or 1991 but they did not make any complain to the police regarding torture.

13. PW-8 Arun Kumar is the Investigating Officer of the case. PW-8 deposed that on 27.03.1994 Dayal Singh gave him two photographs and one Xerox copy of application. He also produced letter dated 14.07.1991 written by Gurnam Kaur. Chairman of Gurudwara Prabandhak Committee also produced the letter dated 28.02.1994. The aforesaid letter and photographs were seized and seizure

memo was prepared. PW-8 further stated that on 04.04.1993, he received three letters dated 12.05.1990, 27.08.1993 and 05.03.1994 written by deceased Dalbir Kaur and these letters were seized by him vide seizure memo Ext.-4/1. In his cross-examination Investigating Officer stated that place of occurrence visited by him was the place where marriage was solemnized and he did not visit her matrimonial house. He did not get the letter of Dalbir Kaur and Gurnam Kaur, examined from expert to ascertain whether they were in their handwriting or not. He received the information about the death of Dalbir Kaur on 18.04.1994 but he did not inspect the hospital record. He made a written request to hospital authorities to tell the cause of death of Dalbir Kaur and that carbon copy of his written request is Ext.-A. Investigating Officer further stated that during investigation he came to know that death of Dalbir Kaur was due to meningitis. He did not examine any witness from Ratu Road, Ranchi where the deceased lived in her matrimonial house.

Arguments of learned counsel for the appellant:

14. Mr. Rajesh Kr. Dubey, the learned counsel, who has been appointed as Amicus Curiae, argues out the case on behalf of the appellant. He has first and foremost argued that initially the allegation was also made under section 304-B of IPC which is a serious allegation for which the accused persons including appellant would have had to undergo substantial imprisonment if found guilty, however, deceased had returned from her matrimonial home to her paternal home some months or few months back and it was at a parent's home where she had fallen ill and subsequently died due to the illness of meningitis (severe illness) and it was a natural death. Therefore, there was no chance whatsoever of the offence of 304-B IPC being alleged on the accused or the appellant, however, the informant's side made such allegations. Therefore, the entire case against the accused or the appellant can be considered doubtful and one of manufactured and concocted case against the appellant. On this basis conviction of the appellant under section 4 of the Dowry Prohibition Act and under section 498-A IPC is also tempered and not liable to stand. Counsel also argues even otherwise in a strict sense it cannot be alleged that the offence of demand as under the preview of section 4 of the Dowry Prohibition Act is made out because the allegation is one in which it is said that the deceased had given birth to two girls and the complainant had not yet given birth of a boy and therefore, there was a demand which was rather in the form or a request for the two girls expenses and therefore, this cannot be considered a dowry demand at all which

pertains to any imminent marriage or matrimonial circumstance therefore section 4 of the Dowry Prohibition Act cannot be applied in this case. Regarding the offence of section 498-A IPC counsel for the appellant submits that it can be seen that the husband or the appellant was solely motivated by good intention seeing the lack of treatment at his end that was available and he wanted good and safe treatment of his wife and therefore, he had sent or allowed her to leave her matrimonial home and go to her paternal home for treatment. This act of the husband demonstrates his concern which would only indicate that he is not guilty for the offence of cruelty under section 498-A IPC as has been alleged.

15. Learned amicus curiae also argues that it is on the record that complain that was submitted by the complainant or the deceased was composed and drafted by the lawyer or an advocate and therefore, this adds to the doubt created in the case and only goes to further strengthen or establish that the case was a manufactured or concocted one in which there was not only application of mind but there was application of professional mind.

16. Learned amicus curiae has referred to the decision of the Hon'ble Supreme Court in the case of Sakhi Mandalani versus State of Bihar &Ors reported in (1999) 5 SCC 705 and submitted that Apex Court in this case had allowed the appeal on the ground that when appellant was acquitted of the charge under section 304-B of IPC then it was not possible to maintain conviction under section 3 and section 4 of the Dowry Prohibition Act and in the case in hand also appellant has been acquitted of the charge under section 304-B of IPC by the learned court below and hence this court shall also acquit the appellant of the charge under section 4 of the Dowry Prohibition Act and under section 498-A of IPC.

Argument of learned counsel for the State:

17. Learned counsel for the State has on the other hand argued that both the offences under section 4 of Dowry Prohibition Act and also under section 498-A IPC are totally made out against the appellant.

18. Learned counsel for the State has argued that PW-4 Dayal Singh, who is the father of the deceased has deposed that only after some days of marriage some differences between the parties had arisen and the deceased had complained about not providing enough food and she was kept on starvation. She was beaten and was taunted upon and that her in-laws repeatedly asked her to bring dowry. Her in-laws taunted why she delivered two girls and did not deliver a boy. Therefore, counsel says that the request or demand was made for

male child or children. In paragraph-6, PW-4 has deposed that after receiving letter from his deceased daughter Dalbir, he had sent his son Gurdeep or PW-6 to her matrimonial house for talking to his daughter and then Gurdeep had brought his daughter home and he had seen the health of his daughter was bad and she could not even sit down. Counsel says the condition of deceased as has come in the evidence, it is apparent that she was not treated well by in-laws including her husband, who were responsible for her safety and upkeep. She was hungry for three days and she was also assaulted and she was also subjected to a lot of negative comments loaded with animosity. Counsel for the State therefore says that she was definitely subjected not only to physical cruelty but also mental cruelty. Learned counsel also points to the evidences Ext- 2 series, which are letters from the deceased daughter revealing the state of physical torture and situation at her matrimonial place. Learned counsel for the State has also pointed out from paragraph-8 of PW-4 that he had complained regarding harassment and torture to the Gurudwara, Azad Basti and communication was made by the Gurudwara to Gurnam but there was no response from the side of the in-laws. This only demonstrates that not only were they harassing and torturing her and made demands upon her but that they were not even willing to listen to the Gurudwara committee. Learned counsel for the State has also referred to the evidence of PW-6 Gurdeep Singh and has pointed out that in para-3 there is reference to torture and also reference to demand of Rs.40,000/-, therefore, complicity of the husband in the demand as well as torture and harassment is totally made out and therefore the offences under section 4 of Dowry Prohibition Act and under section 498-A IPC stands proved.

19. Learned counsel also argues that it is clear from the evidence that the medical treatment of the girl was also done by the parents of the girl and not by the husband, it should have been primarily his responsibility and that he was not willing to take responsibility for her and was not even caring and watching her because in the last time of her life, deceased was staying at her parental home. Even after death it was the girl's parents who had arranged the death rituals. This also reveals the state of mind of the husband and his utter lack of concern for his wife which only adds to his involvement in the demand, torture and harassment of his wife and therefore, appellant does not deserve to be released from his conviction and the corresponding sentence.

FINDINGS

20. I have heard both the counsels, gone through the records of the case and evidences and the given facts and circumstances of the case. The present case arose from the Complaint Case No. C/1-130/1994 filed befoe the C.J.M., Jamshedpur by the complainant Dalbir Kaur or the wife of Raghubir Singh, appellant herein. In this case apart from appellant husband, two sister-in-law and brother-in-law of the complainant i.e. total four accused persons were charged and tried under section 3 and 4 of Dowry Prohibition Act, 1961 and section 498- A/304-B of IPC by the learned trial court and at the conclusion of trial, all the four accused persons including the appellant were acquitted of the charges under section 304-B of IPC and section 3 of Dowry Prohibition Act,1961. Further, learned trial court had acquitted the three accused persons i.e. two sister-in-law and brother-in-law of the complainant of the charges under section 4 of Dowry Prohibition Act,1961 and under 498-A of IPC but convicted the appellant or husband alone for the charges under section 4 of Dowry Prohibition Act,1961 and under 498-A of IPC.

21. Regarding charges under section 4 of Dowry Prohibition Act,1961 against the appellant, before proceeding further it would be important to look into the definition of dowry as has been given in Section 2 of this Act. Accordingly, Section 2 of the Dowry Prohibition Act, 1961 defines dowry as under :

2. Definition of "dowry".- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

(emphasis supplied) So, as per the definition of 'dowry' given in section 2 of the Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage at or before or any time after the marriage in connection with the marriage.

22. P.W.-4 and P.W.-6 are the material witnesses in this case, who are father and brother of the deceased complainant Dalbir Kaur respectively.

From the evidence of P.W.-4, father of the complainant, I find that P.W-4 has in his examination-in-chief at para-4 deposed that Dalbir had given birth to two female child one after the other and due to giving birth to girls, in-laws used to taunt the complainant Dalbir. In-laws also used to say, go and bring forty thousand rupees so that marriage of girls can be performed. So, as per the testimony of the father of the complaint or P.W.-4, the reference of Rs.40,000/- as has come as a taunt by in-laws for giving birth to female child and not in regard to dowry demand in connection with the marriage. Further, on going through the evidence of P.W.-6, I find that P.W.-6 has stated at para-3 in his evidence that accused persons used to demand forty thousand rupees from his father and appellant had also one time demanded money from him as his sister had given birth to two female child. Therefore, on joint reading of the evidence of both the witnesses P.W.-4 and P.W.-6, I come to the conclusion that demand or reference of forty thousand rupees was not a dowry demand in connection with the marriage but it was definitely a kind of torture meted out to the complainant for giving birth to female child by the complainant. Further, on going through the petition of Complaint Case No. C/1-130/1994, I find that complainant had also alleged that accused persons asked her to fetch Rs.40,000/- from her father so, that the money can be spent on the marriage of the daughter(s) of the complainant. Therefore, the complaint petition of the complainant also corroborates the testimony of P.W.-4 and P.W.-6 that demand or reference of forty thousand rupees was not a dowry demand in connection with the marriage and hence, section 4 of Dowry Prohibition Act,1961 is strictly not applicable for such demand, in the fact and circumstances of the case in hand. Further, Hon'ble Supreme Court in the case of Sakhi Mandalani (supra) had allowed the appeal on the ground that when appellant was acquitted of the charge under section 304-B of IPC then it was not possible to maintain conviction under section 3 and section 4 of the Dowry Prohibition Act. In the case in hand also learned trial court has acquitted the appellant for the charge under section 304-B of IPC and hence, on this ground also charge under section 4 of Dowry Prohibition Act,1961 against the appellant herein cannot be maintained and is set aside.

23.(i) Regarding, the charge under section 498-A of IPC, I find that both P.W.-4 and P.W.-6, have stated in their evidence that in-laws taunted the complainant for giving birth to two female child. P.W.-4 has also deposed

that accused taunted the complainant by saying that her father was a beggar and did not give what he was supposed to give and P.W.-6 has also deposed that due to torture mental condition of his sister was not good. Hence, deceased complainant was subjected to mental as well as physical cruelty by the accused or the appellant herein. Further, both P.W.-4 and P.W.-6 have deposed that in-laws had demanded forty thousand rupees so that the marriage of girls could be performed and hence, this was an unlawful demand as per explanation (b) of section 498-A of IPC, by which complainant was harassed. This court also notes that had the demand of desired amount been fulfilled, husband or the appellant herein would have been directly benefited.

(ii) Apart from the aforesaid reasoning that leads to the guilt of the appellant, husband or appellant herein, should have been wholly protecting his wife, this Court sees that at the time of her death or even much before that deceased was living with her own parents and was not residing at her matrimonial home. The fact that she was not residing at her matrimonial home at the time of her death and her treatment would indicate that her treatment was being done by her own father or brother. The husband was not involved in the last moments of her life in her treatment which itself shows that there was some negligence in this aspect on the part of the husband. It is seen from the Ext.-3, which is the Death Notification Form, issued by PW-5 Dr. P.K. Mishra, Medical Division, TISCO, Jamshedpur that she was under the care of her brother Gurdeep Singh or PW-6 at the time when she died, and this reveals the negligence that was shown by the appellant. Hence, based on aforesaid reasoning, prosecution has proved the charge under section 498-A against the appellant.

24. Therefore, on the basis of above discussion the charges under section 4 of the Dowry Prohibition Act,1961 against the appellant is set aside and charges under section 498-A of IPC against the appellant is sustained and upheld.

25. Accordingly, the judgment of conviction of the appellant dated 05.05.2003 under section 4 of the Dowry Prohibition Act,1961 and its corresponding sentence passed by learned Additional District & Sessions Judge, FTC-IX, East Singhbhum, Jamshedpur in Sessions Trial No. 511/95 is set aside but conviction of the appellant under section 498-A of IPC is sustained and upheld. However, bearing in mind that the incident is of 1989

and now we are in the year 2020 this Court considers the period already served in custody as sentence sufficiently undergone. This Court has been informed that as per the records available the appellant has already spent about one year and ten months in custody, hence in view of that no further custodial sentence is imposed. The fine amount previously imposed under section 498-A of IPC remains. Appellant will be discharged of the liability of bail bonds after payment of the fine amount.

26. Before parting, this court appreciates the assistance rendered by Mr. Rajesh Kr. Dubey, amicus curiae. The Member Secretary, JHALSA is directed to pay remuneration to Mr. Rajesh Kr. Dubey, as per rule.

27. Accordingly, this appeal is dismissed with modification in conviction and sentence.

(Ratnaker Bhengra, J.)

S.B.-NAFR