Raju Munda vs The State Of Jharkhand
2022 Latest Caselaw 4235 Jhar

            Cr. Appeal (DB) No. 1501 of 2017
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Against the judgment of conviction dated 30.09.2015 and order of sentence dated 8.10.2015, passed by Shri Ramesh Kumar Srivastava, learned 2nd Additional Sessions Judge, FTC Bermo at Tenughat in Sessions Case No. 135 of 2010.

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Raju Munda.                                  .....Appellant
                                    Versus
The State of Jharkhand.                      ....Respondent
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For the Appellant         : Mr. Bhola Nath Rajak, Advocate
For the State             : Mr. Abhay Kumar Tiwari, A.P.P.
                                 -----
                          PRESENT
      HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
           HON'BLE MR. JUSTICE AMBUJ NATH


C.A.V. On 20.07.2022                            Pronounced on 18/10/2022

Heard Mr. Bhola Nath Rajak, learned counsel for the appellant and Mr. Abhay Kumar Tiwari, learned A.P.P.

2. This appeal is directed against the judgment of conviction dated 30.09.2015 and order of sentence dated 8.10.2015, passed by Shri Ramesh Kumar Srivastava, learned 2nd Additional Sessions Judge, FTC Bermo at Tenughat in Sessions Case No. 135 of 2010, whereby and whereunder the appellant has been convicted for the offences punishable under Sections 498A and 304B of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years along with a fine of Rs.10,000/-for the offence under section 304B of the Indian Penal Code and in default of payment of fine to undergo R.I. for three months. The appellant has also been sentenced to undergo R.I. for two years for the offence under section 498A IPC. Both the sentences are to run concurrently.

3. A written report was submitted by Jagannath Modi, addressed to the officer in charge, Kasmar P.S., Bokaro, in which it has been stated that the marriage of his daughter Uttara Devi was solemnized with Raju Munda (appellant) about five years back. It has been alleged that after one year of marriage, the husband and the inlaws of his daughter had started demanding cash and other materials but since the informant was a poor labourer, he could not meet the said demands. Due to non fulfilment of the demands, the accused 2 Cr. Appeal (D.B.). No. 1501 of 2017

used to torture her and ultimately on 8.10.2009, the accused persons had sprinkled kerosene oil upon the daughter of the informant and had set her ablaze leading to her death.

4. Based on the aforesaid allegations, Kasmar P.S. Case No. 49 of 2009 was instituted for the offence punishable under section 304B/34 of the Indian Penal Code against five accused persons. On conclusion of investigation, chargesheet was submitted under section 304 B/34 of IPC and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 135 of 2010. Charge was framed under sections 498A and 304B IPC, which was read over and explained to the accused in Hindi, to which he pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as ten witnesses in support of its case.

P.W-1-Nagendra Modi has deposed that Uttara Devi was married to Raju Munda about five years back. After one year of marriage, her husband and inlaws had started demanding dowry and had also subjected her to torture. Since the demands could not be fulfilled, she was burnt to death.

In cross-examination, he has deposed that he had disclosed to the police about the demand of dowry and the daughter of the informant being burnt to death by her husband and inlaws for non fulfillment of the said demand. He has stated that when he had gone to meet the deceased, she was fine. The information regarding demand of dowry was given to him by the father of the deceased namely Jagannath Mahto. He has stated that the entire testimony is based upon hearsay noise.

P.W-2- Dukhni Devi is the mother of the deceased who has deposed that after one year of the marriage of her daughter, a demand of dowry was made, which was fulfilled by them. Subsequently there was demand of Rs.10,000/- and threat of dire consequences were given if the demand was not fulfilled. Thereafter her daughter was murdered by five persons. When she had gone to the matrimonial house of her daughter, she had found the accused persons having burnt her daughter by pouring kerosene oil upon her.

In cross-examination, she has stated that her daughter used to regularly visit her parent's house. She had received information that her daughter has been admitted to the hospital by the brother in law of Raju Munda and when she went to the hospital and then to the police station, she had come to know that her daughter is dead. She had told the police that due to non fulfilment of the demand of Rs.10,000/- made by Raju Munda, her daughter was burnt to 3 Cr. Appeal (D.B.). No. 1501 of 2017

death. She had also disclosed to the police that the demand was made for constructing a house.

P.W-3-Bhagirath Modi had deposed that the deceased is his niece in relation. The persons who had informed his sister in law (mother of the deceased) had stated that she is admitted in Kasmar hospital as she was suffering from diarrhea and he had taken her to Kasmar P.S. where it was informed that his niece had died due to burn injury. He had gone and seen the dead body. He has stated that due to non fulfilment of the demand of Rs.10,000/-, she was done to death.

In cross-examination, he has deposed that on 10.10.2009, he had gone along with his brother Jagannath Modi to the place of occurrence.

P.W-4-Jagannath Modi is the informant and father of the deceased. This witness has stated that the marriage of his daughter was solemnized with Raju Munda about five years back. After one year of marriage, there was a demand of dowry and torture committed upon his daughter. Since the demand of Rs.10,000/-could not be fulfilled, she was done to death by pouring kerosene oil over her and setting her ablaze. The incident of murder came to his knowledge on 8.10.2009 and on 9.10.2009, he had gone to the matrimonial house of his daughter. He has stated that the information was given to him by the villagers and not the inlaws of the deceased. The villagers had informed his wife and had taken her to Kasmar P.S. where she was informed that her daughter has died due to burns and thereafter this witness was informed through telephone after which he had gone to the police station along with other persons. He had thereafter gone to the matrimonial house of his daughter where he found her lying dead and thereafter he had given a written report. He has proved the written report, which has been marked as Ext-1.

In cross-examination, he has stated that his son in law had demanded Rs.10,000/- for constructing a house. The son in law of this witness had a house constructed of cement and which had two rooms.

P.W-5-Pacha Munda has deposed that he knows Raju Munda and Uttara Devi. Both had a cordial relationship. He does not know as to when and what incident had befallen Uttara Devi. He does not know as to how she had died. He had heard that Uttara Devi had committed suicide by immolating herself.

In cross-examination, he has deposed that Raju Munda used to stay separately along with his wife.

P.W-6-Nirmal Munda did not support the case of the prosecution and was accordingly declared hostile by the prosecution.

P.W-7-Dulal Munda and P.W-8-Kailash Munda have also been declared hostile by the prosecution.

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P.W-9-Dr.Ajay Kumar Sinha was posted as a Medical Officer in Sub Divisional Hospital, Tenughat and on 9.10.2009, he had conducted autopsy on the dead body of Uttara Devi and had found the following:-

External Injuries:-

Burn injury present on whole face, scalp, both ears, whole neck, whole thorax, both breasts, whole abdomen and whole back. Hair of scalp burnt. Burn injury whole pelvic region with blisters. Burn injury whole right and left upper extremities, all around with Blisters. Burn injury- whole length and all around both right and left lower extremities with blisters. All injuries are ante mortem in nature.

Internal:-Brain was congested and shrunken. Respiratory tract was congested with frothy mucus. Both lungs were congested with serious effusion. Both chambers of heart full of cherry red colour blood. Peyer's patches and reddinal mucus membranes was present. Intestinal mucus membranes was redden. Caver, splints, both kidneys were congested, urinary bladder was empty.

The cause of death was opined to be due to neurogenic shock. He has proved the postmortem report, which has been marked as Ext-2.

In cross-examination, he has stated that it is not a fact that after burning, the smell of kerosene oil had vanished.

P.W-10-Baidyanath Horo has deposed that on 9.10.2009, he was posted as a Sub Inspector in Kasmar P.S. He was handed over the investigation of the case. He has proved the handwriting of the officer in charge, Vijay Kumar in the endorsement on the written report, which has been marked as Ext-1/1. He has also proved the handwriting of Vijay Kumar in the formal FIR, which has been marked as Ext-3. In course of investigation, he had inspected the place of occurrence, which is the house of Biju Munda where the half burnt body of Uttara Devi was found. He had recorded the restatement of the informant and had also prepared the inquest report. He had recorded the statements of Dulal Munda, Kailash Munda, Pancha Munda, Dukhni Devi, Bhagirath Modi, Nagendra Modi and Manish Modi. The accused persons were found to be absconding. He had obtained the postmortem report and had also arrested Raju Munda. On 15.11.2009, he had arrested Biju Munda, Nirmal Munda, Salo Devi and Sita Devi. On conclusion of investigation, chargesheet was submitted by him.

The witness-Nirmal Munda had disclosed that he had information that on 9.10.2009, the wife of Raju Munda was burnt to death by the family members of Raju Munda. The witness Dulal Munda had stated before him that Raju Munda had committed the murder of his wife. The witness Kailash Munda had 5 Cr. Appeal (D.B.). No. 1501 of 2017

stated before him that on 9.10.2009, the inlaws of Uttara Devi had committed her murder by pouring kerosene oil upon her and setting her ablaze.

In cross-examination, he has deposed that the place of occurrence is the room where Raju Munda and the deceased used to stay. The witness-Nagendra Modi had never disclosed before him that after one year of marriage, Raju Munda and the inlaws of the deceased used to demand T.V. and Cash and also used to torture her. The witness-Dukhni Devi had also not disclosed that the murder was committed due to the non fulfilment of the demand of dowry.

6. The statement of the accused-Raju Munda was recorded under section 313 Cr.P.C. in which he has denied his involvement.

7. Mr. Bhola Nath Rajak, learned counsel for the appellant, has submitted that the appellant has been implicated only on account of the fact that he is the husband of the deceased. It has been submitted that the demand of cash of Rs.10,000/- for construction of a house cannot be said to be a dowry demand. Even otherwise the said demand was not made immediately prior to the incident. He has submitted that the wife of the appellant caught fire accidently and therefore the appellant could not have been convicted for the offence under section 304B and 498A IPC.

8. Mr. Abhay Kumar Tiwary, learned A.P.P., has submitted that the death had occurred within seven years of marriage in an unnatural circumstances and a consistent demand of Rs.10,000/- was made by the appellant, which proves the ingredients for bringing home the charge under section 304B and in such view therefore, this appeal deserves to be dismissed.

9. We have considered the rival submissions and have also perused the Lower Court Record.

10. The appellant is the husband of the deceased, who is the said to have demanded Rs.10,000/- as dowry and on non fulfilment of which had done to death his wife. When we consider the evidence of the witnesses we find that P.W-2 and P.W-4 are the parents of the deceased and both have stated about the demand of Rs.10,000/- made by the appellant for constructing a house. P.W- 2 has stated that the initial demand of dowry made after one year of marriage was fulfilled by them but again a demand of Rs.10,000/-was made by the appellant. The persistent demand of dowry appears to indicate that the said demand was also made "soon before her death". In the context of the learned counsel for the appellant's submission that the demand of money for constructing a house is not a dowry demand, we may refer to the case of the State of Madhya Pradesh Vs. Jogendra & Another, reported in 2022 Live law (SC) 37, it which it has been held as follows:-

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"12. In the light of the above provision that defines the word "dowry" and takes in its ambit any kind of property or valuable security, in our opinion, the High Court fell into an error by holding that the demand of money for construction of a house cannot be treated as a dowry demand. In Appasaheb's case [supra] referred to in the impugned judgment, this Court had held that a demand for money from the parents of the deceased woman to purchase manure would not fall within the purview of "dowry", thereby strictly interpreting the definition of dowry. This view has, however, not been subscribed to in Rajinder Singh's case [supra] wherein it has been held that the said decision as also the one in the case of Vipin Jaiswal[a-1] v. State of Andhra Pradesh represented by Public Prosecutor, (2013) 3 SCC 684 do not state the law correctly. Noting that the aforesaid decisions were distinct from four other decisions of this Court, viz., Bachni Devi and Another v. State of Haryana, (2011) 4 SCC 427; Kulwant Singh and Others v. State of Punjab, (2013) 4 SCC 177; Surinder Singh v. State of Haryana, (2014) 4 SCC 129 and Raminder Singh v. State of Punjab, (2014) 12 SCC 582, the Court opined that keeping in mind the fact that Section 304- B was inserted in the IPC to combat the social evil of dowry demand that has reached alarming proportions, it cannot be argued that in case of an ambiguity in the language used in the provision, the same ought to be construed strictly as that would amount to defeating the very object of the provision. In other words, the Court leaned in favour of assigning an expansive meaning to the expression "dowry" and held thus:-

"20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case [Appasaheb v. State of Maharashtra, (2007) 9 SCC 721(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] followed by the judgment of Vipin Jaiswal [Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 : (2013) 2 SCC (Cri) 15] do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise." [emphasis added]

13. The Latin maxim "Ut Res Magis Valeat Quam Pereat" i.e, a liberal construction should be put up on written instruments, so as to uphold them, if possible, and carry into effect, the intention of the parties, sums it up. Interpretation of a provision of law that will defeat the very intention of the legislature must be shunned in favour of an interpretation that will promote the object sought to be achieved through the legislation 7 meant to uproot a social evil like dowry demand. In this context the word "Dowry" ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. When dealing with cases under Section 304-B IPC, a provision legislated to act as a deterrent in the society and curb the heinous crime of dowry demands, the shift in the approach of the courts ought to be from strict to liberal, from constricted to dilated. Any rigid meaning would tend to bring to naught, the real object of the provision. Therefore, a push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.

14. In the facts of the instant case, we are of the opinion that the trial Court has correctly interpreted the demand for money raised by the respondents on the deceased for construction of a house as falling within the definition of the word "dowry". The submission made by learned counsel for the respondents that the deceased was also a party to such a demand as she had on her own asked her mother and maternal uncle to contribute to the construction of the house, must be understood in the correct perspective. It cannot be lost sight of that the respondents had been constantly tormenting the deceased and asking her to approach her family members for money to build a house and it was only on their persistence and insistence that she was compelled to ask them to contribute some amount for constructing a house. The Court must be sensitive to the social milieu from which the parties hail. The fact that the marriage of the deceased and the respondent No.1 was conducted in a community marriage organization where some couples would have tied the knot goes to show that the parties were financially not so well off. This position is also borne out from the deposition of 7 Cr. Appeal (D.B.). No. 1501 of 2017

P.W.-1 who had stated that he used to bear the expenses of the couple. Before the marriage of the deceased also, P.W.-1 had stated that he used to bear her expenses and that of her mother and brother [his sister and nephew] as her father had abandoned them. In this background, the High Court fell in an error in drawing an inference that since the deceased had herself joined her husband and father-in-law, respondents herein and asked her mother or uncle to contribute money to construct a house, such demand cannot be treated as a "dowry demand". On the contrary, the evidence brought on record shows that the deceased was pressurized to make such a request for money to her mother and uncle. It was not a case of complicity but a case of sheer helplessness faced by the deceased in such adverse circumstances."

11. The phrase "soon before her death" has also been considered in the aforesaid judgement and it has been held as follows:-

"15. Now, coming to the second point urged by learned counsel for the State that the High Court has overlooked the fact that Geeta Bai had been subjected to cruelty/harassment at the hands of the respondents soon before her death, which submission is strictly contested by learned counsel for the respondents, we may note that the meaning of the expression "soon before her death" has been discussed threadbare in several judgments. In Surinder Singh (supra), while relying on the 8 provisions of Section 113-B of the Indian Evidence Act, 1872 [For short 'the Evidence Act']and Section 304-B IPC, where the words "soon before her death" find mention, the following pertinent observations have been made: - "

17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304- B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222-23, para 15)

"15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death. It 8 Cr. Appeal (D.B.). No. 1501 of 2017

does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough." Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law. [emphasis added]

16. In Rajinder Singh [supra], falling back on the rulings in Kans Raj v. State of Punjab and Others, (2000) 5 SCC 207; Dinesh v. State of Haryana, (2014) 12 SCC 532 and Sher Singh @ Partapa v. State of Haryana, (2015) 3 SCC 724, it has been 9 emphasized that "soon before" is not synonymous to "immediately before" and the following observations have been made: -

"24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B." [emphasis added]

17. In the above context, we may usefully refer to a recent decision of a three Judge Bench of this Court in Gurmeet Singh v. State of Punjab, (2021) 6 SCC 108that has restated the detailed guidelines that have been laid down in Satbir Singh and Another v. State of Haryana, (2021) 6 SCC 1, both authored by Chief Justice N.V. Ramana, relating to trial under Section 304-B IPC where the law on Section 304-B IPC and Section 113-B of the Evidence Act has been pithily summarized in the following words:

"38.1. Section 304-B IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

38.2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B of the Evidence Act operates against the accused.

38.3. The phrase "soon before" as appearing in Section 304- B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

38.4. Section 304-B IPC does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental." [emphasis added]".

12. The demand made by the appellant was therefore a dowry demand. It is an admitted position that the death had occurred within seven years of marriage and the deceased had died at her matrimonial house due to burn injuries. The evidence of the doctor conducting autopsy (P.W-9) reveals that smell of kerosene oil was present over the body in whole. In cross-examination, he has deposed that it is not a fact that smell of kerosene oil, which was written by him, is only a presumption. In the backdrop of the fact and circumstances of the case and in view of the law laid down in the case of State of Madhya Pradesh Vs. Jogendra & Anr. (Supra), we come to the conclusion that the presumption under section 113B of the Evidence Act will come into play against the appellant.

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13. The learned trial court has considered all aspects of the matter and has convicted the appellant for the offences under section 304B IPC and Section 498A IPC and has sentenced him accordingly.

14. We find no reason to interfere in the impugned judgment of conviction dated 30.09.2015 and order of sentence dated 8.10.2015, passed by Shri Ramesh Kumar Srivastava, learned 2nd Additional Sessions Judge, FTC Bermo at Tenughat in Sessions Case No. 135 of 2010 and accordingly this appeal is dismissed.

Pending I.As, if any, stand disposed of.

(Rongon Mukhopadhyay,J)

(Ambuj Nath, J)

Jharkhand High Court, Ranchi Dated 18th October, 2022 Rakesh/NAFR