Mathura Mondal vs The State Of Jharkhand
2021 Latest Caselaw 3593 Jhar

                               [1]


        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Appeal (S.J.) No. 59 of 2004
(Against the judgment of conviction dated 21st November, 2003 and the order of
sentence dated 25th November 2003 passed by the learned Additional Sessions
Judge-IV, Fast Tract Court, Jamtara in Sessions Case No. 160 of 2001)
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Mathura Mondal, S/O late Badal Mandal, Village Nijaypur, P.S. Kundhit, Dist. Jamtara ...... ..... Appellant

-Versus-

The State of Jharkhand                         ...... ..... Respondent

                    Heard through Video Conferencing
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                                PRESENT
 HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Sanjay Kumar Tiwari, Amicus Curiae For the State : Mr. Rakesh Kumar Sinha, APP

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C.A.V. on 03.07.2020 Pronounced on 24/9/2021

Heard Mr. Sanjay Kumar Tiwari, the learned Amicus Curiae, who appears on behalf of the appellant as well as Mr. Rakesh Kumar Sinha, learned APP for the State.

2. The present criminal appeal is preferred against the judgment of conviction dated 21st November, 2003 and the order of sentence dated 25th November 2003 passed by the learned Additional Sessions Judge-IV, Fast Tract Court, Jamtara in Sessions Case No. 160 of 2001 whereby the appellant was convicted under sections 498A and 306 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 1000/- under section 498 A of IPC and rigorous imprisonment for five years and fine of Rs. 5,000/- under section 306 IPC. In case of default of payment of fine one month imprisonment under section 498A IPC and three months imprisonment under section 306 IPC was awarded. Learned court below further directed both the sentences to run concurrently.

3. The case of the prosecution, in brief, as per the fardbeyan dated 28.01.2001 of the informant PW-10 Pradip Khan is that his sister Santoshi Devi aged about 23 years was married to Mathura Mondal of village Nijayapur, P.S. Kundahit, three years ago. After the marriage his sister was residing in her matrimonial home. One year ago, his sister came and [2]

informed that her husband was demanding Rs. 2000/- for business but the informant refused to pay money then, accused started beating and abusing informant's sister. A daughter child was born to her sister one year ago. Informant further stated that on 22.01.2001 Mantu Mondal, elder brother of the accused came to informant's house and informed him that on the previous night i.e. on 21.01.2001 there was a quarrel between his sister and his brother-in-law and out of anger his sister went away somewhere. On this the informant went to Nijayapur at sister's matrimonial home and saw appellant or his brother-in-law in the house, but his sister was not present. On query, the accused told him that there was quarrel in the previous night and he had beaten three - four lathi to his wife and in the next morning, she ran away from the house. Informant thereafter, started searching for his sister in his relation but there was no trace of his sister. In the morning of 28.01.2001 at 08:00 am he heard hulla that a dead body of woman was floating in a well to the south of village Nijayapur. The informant proceeded to the place with some persons and saw the dead body of his sister Santoshi Mondal.

4. On the fardbeyan of the informant Kundahit P.S. Case No.5 of 2001 dated 28.01.2001 was registered under section 302/201 IPC. After completion of investigation charge-sheet was submitted under section 302/201 IPC against the appellant and cognizance of the offence was taken and the case was committed to the court of sessions. Charges were framed under sections 302, 201, 304 (B) and 498-A of IPC and trial was held and at the conclusion of the trial appellant was convicted and sentenced as aforesaid. Hence, this appeal.

5. Prosecution in support of its case had examined altogether 12 witnesses out of whom PW-10 Pradip Khan is the informant of the case and the brother of the deceased; PW-11 is Dr. M.A. Sattar, who had conducted post-mortem examination on the dead body of the deceased and PW-12 is Chandrika Prasad, who is the Investigating Officer of the case. Here it is pertinent to note that out of the twelve witnesses examined by the prosecution, nine of the witnesses - PW-1, PW-2, PW-3, PW-4, PW-5, PW- 6, PW-7, PW-8 and PW-9 were declared hostile.

6. PW-10 Pradip Khan is informant of this case and the brother of [3]

the deceased. Informant has stated in his evidence that occurrence is of one and half year ago. His sister Santoshi Mondal was married to Mathura Mondal three years before the occurrence. After marriage his sister went to her matrimonial home at Nijayapur and there she gave birth to a female child. Informant further stated that Mantu Mondal, elder brother of Mathura came at 5 a.m. in the morning in the month of Magh and informed that there had been altercations and quarrels between Mathura and his wife Santoshi on the previous night and in the morning Santoshi ran away from the house. Then informant went to the matrimonial home of his sister along with Sudhir Manjhee, Gaya Prasad Khan and Amit Rana but did not find his sister there. Mathura Mondal told to him that his sister had left the house in the morning. Thereafter, informant searched amongst relation and after five days Mantu Mondal and others informed that dead body of his sister was floating in a well at Nijayapur itself. Then informant alongwith 20-25 persons went to Nijayapur and saw the dead body of his sister. Police removed the dead-body out of the well. Informant has proved the signature on the fardbayan which was marked as Ext.-1/1. Informant further stated that after marriage, his sister used to come to her parental home from her matrimonial home and his sister used to tell regarding the quarrel taking place in her matrimonial home and the demand of two thousand rupees by her husband for doing business. Informant further stated that he had paid two thousand rupees to his brother-in-law.

7. PW-11, Dr. M. A. Sattar had conducted the autopsy on the dead-body of Santoshi Mondal. Doctor found following anti-mortem injuries on the person of the deceased: -

(i) Lacerated injury on the left eyebrow 3"x1/2" over forehead bone deep.

(ii) Lacerated injury on right forehead 2 ½ "x 1 ½ "x frontal bone over deep.

(iii) Both upper and lower lips swollen with Ecchymosis. On dissection the Doctor found blood clots present there. Upper and lower insizer teeth loosly attached.

(iv) Multiple abrasion on left elbow area.

(v) Palms and sole skin are goose skin appearance.

On dissection of head and neck the doctor found brain matter conjusted with blood and presence of blood clots in neck beneath skin and muscles of the neck and upper part of trachea reptured. On dissection of [4]

chest, doctor found heart and lungs conjusted and on dissection of abdomen doctor found liver, splin and kidney conjusted. Doctor opined that time elapsed since death about 72 hours and death was caused due to taciful throttling and associated with above injuries caused by asphyxia by hard and blunt substance. Doctor has proved the post-mortem report which was marked as Ext.- 2.

8. PW-12 Chandrika Prasad is the Investigating Officer of this case. Investigating Officer has stated in his evidence that he had recovered the dead body from the well and prepared inquest report in presence of two witnesses Gurupada Mondal and Sudhir Manjhee. Investigating Officer has proved the fardbayan, which was marked as Ext.-3 and inquest report which was marked as Ext.-4.

ARGUMENTS ON BEHALF OF APPELLANTS:-

9. Mr. Sanjay Kumar Tiwari, the learned amicus curiae has appeared on behalf of the appellant and referred to the evidence of PW-1 Gurupada Mondal and stated that this witness was declared hostile and he has in paragraph-2 of his deposition deposed that the police had not taken his statement and in paragraph-3, he has denied having stated before the police that Mathura had asked for Rs.2000/- and on being denied, he had assaulted his wife. In paragraph-6, PW-1 has deposed that after the marriage Santoshi or the deceased behaved like an insane person and she often used to go away out of the house. After such occurrence Mathura and other people of the village had gone to search her.

10. Learned counsel has then referred to the evidence of PW-2 Dayaman Mondal and pointed out that he has also been declared hostile and he has also in paragraph-2 of his evidence stated that the police had not taken his statement and in paragraph-3 has denied having said to the police that there was an altercations between Mathura and deceased Santoshi over Rs.2000/- and Mathura had assaulted her.

11. Learned counsel for the appellant has then referred to the evidence of PW-3 Banku Ghosh and pointed out that he has also been declared hostile and in paragraph-2 he has also deposed that the police had not taken his statement. He has also in paragraph-3 deposed that deceased [5]

behaved like mad and she had previously also disappeared and on search, she was found at her maternal uncle's house or father's house. Learned counsel for the appellant has also submitted that similarly PW-4 Pavitar Mondal has been declared hostile and he has stated that he does not know anything about the incident.

12. Learned counsel for the appellant has then referred to the evidence of PW-5 Nonichora Chaudhary and pointed out that he has also been declared hostile and he has also deposed that he had not stated before the police regarding any quarrel between the husband and wife. PW-5 has also deposed that deceased was mentally a little bit weak and sometime she used to leave her house and go hither and thither.

13. Learned counsel for the appellant has then referred to the evidence of PW-6 Haradhan Mondal, PW-7 Gaya Prasad Khan, PW-8 Nityanand Khan and PW-9 Sudhir Manjhee and pointed out that all these witnesses were declared hostile and they have also deposed similarly that they had not given statement to the police or the police had not taken their statement and denied the statement regarding the altercation between the husband and wife. Learned counsel for the appellant has then referred to the evidence of PW-10 Pradip Khan, who is the informant of the case and pointed out that he is the brother of the deceased and he is the only person, who seems to try to defend the prosecution case in his evidence. Learned counsel has further submitted that only on the basis of the support of one prosecution witness, the appellant should not be held guilty of any offence. Learned counsel has referred to paragraph-8 of the evidence of the informant and submitted that the informant has deposed that there used to be family quarrels and hence, this cannot be a reason for cause of the death of the deceased. Learned counsel for the appellant has further submitted that on recall the informant or brother of the deceased has also deposed that after marriage of his deceased sister, her husband (bahnoi) never assaulted his sister in his presence and Mathura had asked him for money as a debt and he had returned the money and after that Mathura had never again asked him for any money. Informant has also deposed that there was no mark of injury on the body of his deceased sister.

14. Learned counsel for the appellant has then submitted that there [6]

is no demand for any dowry. He stresses that from the evidence, it cannot be made out that there was a demand of dowry, at the most there was a request for giving Rs.2000/- for business which as per the evidence of the brother of the deceased or informant it seems to have been returned with but there was no torture and harassment for the same and so, this cannot lead to any offence. Learned counsel has also argued that she had left the house of the appellant for six days and in the post-mortem, doctor has opined that death occurred before 72 hours. Deceased was missing for six days and death caused only about 3 days from when a body was found, therefore, the appellant cannot at all be held responsible for her death, particularly, when almost all the witnesses except her brother has submitted that she was in the habit of going away from the home and, therefore, she had again left the home like she had done on previous occasions and this time it proved fatal to her. She might have been the victim of anyone else but definitely not the husband. Therefore, the conviction and sentence of the appellant cannot be sustained and be set-aside.

15. Learned counsel for the appellant has finally argued that the case is an old one and much time has passed and appellant has faced hardships of trial and appeal and, moreover, he has already spent about more than 3 years and 2 months in custody, therefore, bearing in mind the period undergone by the appellant in custody should be considered as sentence sufficiently served.

ARGUMENTS ON BEHALF OF STATE:-

16. Mr. Rakesh Kumar Sinha, the learned APP has appeared on behalf of the State, on the other hand, argued that this is a clear cut case of homicidal death and from the evidence of the doctor it is very much apparent. Learned counsel for the State has submitted that the doctor has in his opinion also stated that the death was due to throttling and asphyxia caused by hard and blunt substance and therefore, the death of the deceased is not natural. Learned counsel for the State also argued that from the evidence of the informant or brother of the deceased and also from the evidence of the Investigating Officer that the husband and wife were often on fighting terms and that there was demand for money to the extent of Rs.2000/- and over which, there was much altercation between the husband [7]

and wife which ultimately led to her homicidal death.

17. Learned counsel has pointed out from the evidence of the Investigating Officer and submitted that Investigating Officer of the case has deposed that PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW- 9 had stated to him, regarding the altercation and disputes which took place between the appellant Mathura Mondal and his wife (deceased) and that altercation occurred over the demand for money or the demand for Rs.2000/-. So, all these witnesses PW-1 to PW-9 have, as per the evidence of Investigating Officer, actually supported the prosecution case in their statements taken by the police during investigation, but for reasons best known to themselves, they have denied during the trial, however, the evidence of the Investigating Officer indicates otherwise. Learned counsel for the State also said that even during the depositions of these witnesses, attention was drawn to the statements made by these witnesses during investigation and, therefore, they cannot be allowed to withdraw from what they have submitted during investigation. Hence, for all the aforesaid reasons the conviction and sentence of the appellant Mathura Mondal needs to be fully sustained and upheld by this court.

FINDINGS

18. Having heard the learned counsel for the parties, gone through the records of the case and evidences it is noted that appellant Mathura Mondal was convicted and sentenced under sections 498 A and 306 IPC.

19. This is a case which basically in spite of having 12 prosecution witnesses, only three witnesses have deposed about the prosecution case out of which PW-10 Pradip Khan is the informant and brother of the deceased and remaining two other witnesses are PW-11 Dr. M.A. Sattar and PW-12 Chandrika Prasad, who is the Investigating Officer of this case. The bulk of the other prosecution witnesses i.e. from PW-1 to PW-9 have not supported the prosecution case and they were declared hostile.

20. Regarding the conviction of the appellant under section 306 IPC, there is no witness to support the manner in which the death of the deceased took place. It is to be noted that informant has stated in his fardbayan that deceased left home on 21.01.2001 and her death was reported on 28.01.2001. The doctor or PW-11, who had conducted post-mortem [8]

examination on the dead body of the deceased has given the time of her death as being 72 hours before i.e. from the time of post-mortem examination, which would mean that there was considerable gap in days may be from the 22nd till 25th January, 2001 at least in which as per the evidence of the doctor, deceased would still have been alive and prosecution has failed to answer the whereabouts of the deceased in these three days when the deceased was alive. So, it is difficult to come to the definite conclusions regarding the date and time of her death but if one is to rely on the evidence of the doctors then there is a gap from the time she left home and when she was actually done to death or when she actually died. From the evidence of the doctor, the death appears to be homicidal, however, conviction has been done under section 306 IPC. It has also come in the evidence of many of the prosecution witnesses that she was in the habit of leaving home and also she was mentally misbalanced or disturbed. PW-1 at para-6 of her evidence has deposed that after marriage deceased behaved like an insane and she used to frequently leave her house. Further, PW-2 at para-4, PW-3 at para-3 and PW-5 at para-3 of their evidence have deposed to this effect. Be that as it may be, however, the exact manner of death is not indicated because if it is homicidal it cannot be suicidal or suicidal death may not be attributed to the appellant herein. Hence, under the aforesaid circumstances as already stated, relying only on the evidence of prosecution witness i.e. PW-10, who is the informant of the case, apart from the doctor and the Investigating Officer, it may not be enough to sustain the conviction of the appellant under section 306 IPC. Therefore, this Court thinks it fit and proper to extend the benefit of doubt to the appellant and the appellant is acquitted of the charge under Section 306 IPC.

21. Regarding conviction of the appellant under section 498A of IPC, I find that PW-10 who is the brother of the deceased and informant of the case has stated in the fardbeyan that appellant had demanded Rs. 2,000/- and informant has reiterated so, in para-2 and para-7 of his deposition. Further, in para-8 informant has deposed that his sister used to tell about family quarrel. Hence, deceased was subjected to cruelty by the husband of the deceased or the appellant herein. Therefore, appellant Mathura Mondal is convicted for the charge under section 498-A of IPC.

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22. Accordingly, the impugned judgment of conviction dated 21st November, 2003 under Section 498-A IPC is sustained and upheld, while the conviction of the appellant under Section 306 IPC cannot be sustained and is set-aside. From the records, it is pointed out that the appellant has already spent more than three years in jail and hence appellant has already undergone the imposed sentence of three years passed by the learned trial court under section 498 A of IPC and hence, no further custodial sentence remains. However, fine of Rs.1000/- as imposed by the learned trial court for his conviction under section 498-A remains and appellant is directed to pay the fine amount within four months of pronouncement of this judgment and in case of non-payment of fine amount default clause as ordered by the learned trial court shall apply.

23. This Court appreciates the assistance rendered by Mr. Sanjay Kumar Tiwari, the learned Amicus Curiae. Secretary, JHALSA, Ranchi is directed to pay remuneration to the learned Amicus Curiae, as per rules.

24. Accordingly, the criminal appeal is partially allowed.

(Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi, Dated: 24/9/ 2021, Madhav- NAFR