Dismissed

Kali Pada Mahato v. State of Jharkhand

Jharkhand HC23 Oct 2018Cr.A(SJ)/94/2007

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant challenged his conviction under Section 498A IPC and sentence for dowry harassment, arguing that acquittal on the charge of abetment to suicide (Section 306 IPC) vitiated the conviction. The High Court upheld the conviction, holding that elements of cruelty under Section 498A were independently established by witness testimony regarding dowry demands and tort

What did the court decide?

Affirmed the judgment of conviction and sentence; bail bonds cancelled, appellant to surrender.

Kali Pada Mahato Vs State of Jharkhand — Dowry and Cruelty | Jharkhand HC (2018)

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CRIMINAL APPEAL (S.J.) NO. 94 OF 2007

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[arising out of Judgment of Conviction dated 20^th December, 2006 and Order of sentence dated 21^st December, 2006 passed by the learned Additional District & Sessions Judge, Fast Track Court No.6, Jamshedpur in Sessions Trial No. 354 of 1999]

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Kali Pada Mahato …. Appellant versus The State of Jharkhand …. Respondent ------- For the Appellant : Ms. Moushmi Chatterjee, Advocate

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Mr. Akshay Kumar Mahato, Advocate

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For the Respondent : Mr. Asif Khan, A.P.P.

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PRESENT

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HON'BLE MR. JUSTICE ANANDA SEN

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JUDGMENT

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Reserved on 04.10.2018 Pronounced on 23.10.2018

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This criminal appeal is directed against the Judgment of Conviction dated 20^th December, 2006 and Order of sentence dated 21^st December, 2006 passed by the learned Additional District & Sessions Judge, Fast Track Court No.6, Jamshedpur in Sessions Trial No.354 of 1999, whereby the appellant was found guilty and convicted for offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 (three) years with a fine of Rs.2000/- (Rupees Two Thousand) and in the event of default in payment of fine the appellant was sentenced to undergo additional simple imprisonment for a period of 6 (six) months.

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The prosecution case arises out of the fardbeyan of the informant Madhu Mahato dated 09.07.1998, wherein it is stated that the deceased (Rudan Mahtain) was married with the appellant five years ago. The appellant, after lapse of one year from marriage, started demanding a sum of Rs.10,000/- (Rupees Ten Thousand) from the deceased for purposes of doing business. The deceased came to the informant and his

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father and demanded Rs.10,000/- (Rupees Ten Thousand) and told that her husband assaults and tortures her for money. As the informant was not having money, he could not fulfill the demand and the deceased went back to her husband. It is stated that the deceased had come for 5 (five) times for money and also told about the assaults and torture meted out to her by the appellant. Informant further states that about a year ago when the deceased was assaulted by her husband (appellant), she fled away and took shelter in the house of her aunt (mousi Pio Mahtain) and later on the informant was informed about the same by his cousin (Bhondu Mahto). Upon such information, informant had gone to his brother-in-law (appellant) and took him to the house of his aunt (Mousi) whereafter her sister went with him (appellant). On 18.06.1998, informant got an information that her sister is ill. When he went to her matrimonial house, informant came to know that his sister has been killed at 09.00 a.m. in the morning.

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On the basis of the aforesaid fardbeyan, Kamalpur Police Station Case No.38 of 1998 was instituted for offences under Sections 306/498A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act as against the appellant and his mother. Police after, investigation had submitted chargesheet whereafter cognizance was taken and case was committed to the Court of Sessions.

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Charges were framed against the accused for offences under Sections 498A, 306 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act and were read over and explained to them to which they pleaded not guilty and claimed to be tried.

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To substantiate the case of the prosecution, 8 witnesses were examined on behalf of the prosecution. P.W.1 Madhusudan Mahato is the

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informant. P.W. 2 Ramnath Mahato is the maternal uncle (Mama) of the deceased. P.W.3 Jyoti Mahato is the father of the deceased. P.W.4 Bhondu Mahato is the cousin (mousera bhai) of the deceased. P.W.5 Fakira Mahato is the uncle of the deceased. P.W.6 Kalyani is the sister-inlaw (Bhabhi) of the deceased and wife of the informant. P.W.7 is Vedanand Mahto. P.W.8 is Sudhan Mahato. P.W.8 is Dr. Niranjan Minj, who had conducted the postmortem of the deadbody of the deceased.

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P.W.1 Madhusudan Mahato , in his examination-in-chief, stated that marriage of the deceased with the appellant was solemnized in 1993. After lapse of one year of marriage, his sister (deceased) had come to his house and had told that the appellant demands a sum of Rs.10,000/- and for the same he also tortures and assaults her. Deceased had given birth to a girl child. After 1 – 1 ½ months from birth of girl child, appellant had assaulted the deceased due to which she fled away and took shelter in her aunt’s (mousi) house. This witness was informed by his cousin (mousera bhai) about the same. This witness along with his cousin had gone to the appellant’s house and from there the appellant was taken to his aunt’s house. Thereafter the deceased had gone with the appellant. This witness states that after some days, the appellant again assaulted and tortured the deceased and sent her back to the house of this witness for bringing the amount of Rs.10,000/-. This witness stated that the appellant and his mother used to demand the money and used to assault and torture the deceased and they also used to threaten her of ousting from the matrimonial home. This witness stated that whenever his sister used to come, though he did not gave the sum of Rs.10,000/- still he used to give some money. After some days girl child of the deceased died. The appellant and his mother were not giving proper food to the

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deceased. On 18.06.1998 this witness received information that his sister (deceased) is not well. When he went to Kukir Village to see his sister, he found police was present there. His sister was lying dead on a cot. Her father-in-law (father of the appellant) told that she has committed suicide.

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In cross examination, this witness has stated that he had not disclosed about the demand to anyone.

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PW.2 Ramnath Mahto has stated that he was informed about the death of the deceased by his nephew (P.W.1). This witness has stated about the demand of money by the appellant. This witness has stated that when they reached at matrimonial home of the deceased, the dead body was not there. It was informed that body was sent to the police station. At police station it was informed that postmortem has been conducted.

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P.W.3 Jyoti Mahto has stated that his daughter has been killed. Appellant used to demand Rs.10,000/- and used to assault and torture the deceased. He has stated that he did not disclose about the demand to anyone.

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P.W. 4 Bhondu Mahto has stated that the deceased had come to his house and had stated that she will not go to her matrimonial house. He has stated to have gone to the informant to inform that the deceased had come to his house. Thereafter this witness with the informant (P.W.1) went to the house of the appellant and from there they took the appellant to the house of this witness. Thereafter the deceased was sent with the appellant.

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P.W.5 Fakira Mahato has stated that the deceased was married five years ago. He stated that whenever deceased came to her parental home, she used to cry and tell about the assault and torture in her matrimonial home.

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P.W.6 Kalyani is the wife of the informant. She has stated that the deceased used to tell about the assault and torture for the money.

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P.W.7 Vedanand Mahto has stated that the appellant and his mother used to quarrel with the deceased. They used to ask the deceased to bring Rs.10,000/-. The deceased always used to tell him about the assault and torture.

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P.W.8 Sudhan Mahto has stated that the appellant and his mother used to demand money from the deceased. Deceased had died at her matrimonial home.

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P.W.9 Dr. Niranjan Minj had conducted the postmortem on the person of the deceased. He found a ligature mark 1 c.m. x 4 ½ c.m. in width situated on the front and the upper part of neck. The ligature mark was oblique and high up towards the left side of the neck, left mastoid region where it was discontinuous with the ligature mark was contused and was abraded at places. He has opined that the ligature mark was antimortem in nature. Death was due to hanging and time since death was 36 to 48 hours prior to the time of postmortem examination.

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In addition to the oral evidence, documents, viz. fardbeyan of the informant Madhusudan Mahato (P.W.1) was marked as Ext. 1 and postmortem report of the deceased was marked as Ext. 2.

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After closure of the evidence, the statement of accused including this appellant were recorded under Section 313 of the Code of Criminal Procedure, wherein they pleaded innocence and have denied the circumstances which came up against them during evidence.

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The defence also got examined one witness, i.e., D.W.1 Samant Kumar Das and got exhibited the report of U.D. Case No.1/98 as Ext. ‘D’.

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The Trial Court, after hearing the parties and after going through

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the records and apprising the entire case, vide judgment dated 20^th December, 2006 while acquitting the accused Dukhun Mahato of the charges leveled against her, held this appellant guilty and convicted him for offence under Section 498A of the Indian Penal Code and by order dated 21^st December, 2006 sentenced him to undergo rigorous imprisonment for 3 (three) years with a fine of Rs.2000/- (Rupees Two Thousand) and in the event of default in payment of fine the appellant was sentenced to undergo additional simple imprisonment for a period of 6 (six) months.

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Aggrieved by the said judgment and order of sentence, the appellant has preferred this appeal.

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Heard learned counsel for the appellants and the learned A.P.P. appearing for the State and gone through the records.

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Learned counsel appearing on behalf of the appellant submits that there are major contradictions in the evidence led by the prosecution. He submits that informant has stated that when he went to the house of the accused, he saw the dead body lying there, whereas, another witness P.W.2 stated that the dead body was taken by the police for conducting postmortem when they reached the place of occurrence. It is further argued that the charge under Section 306 of the Indian Penal Code had failed and as the appellant has already been acquitted for the charge under Section 306 of the Indian Penal Code, the conviction of the appellant under Section 498A of the Indian Penal Code is also bad. They submit that there are 21 (twenty one) days’ delay in lodging the FIR. He submits that in fact, the appellant, himself had informed the police about the unnatural death of the deceased and on such information a UD Case was registered. The documents of the UD Case have been exhibited as

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Exhibits ‘A’ and ‘B’. They argue that in that view conviction of the appellant under Section 498A of the Indian Penal Code is absolutely bad. They also submit that there is no evidence of any harassment soon before death and in absence of such evidence, appellant could not have been convicted under Section 498A of the Indian Penal Code. In support of such submission, they relied upon a judgment of the Hon’ble Supreme Court of India reported in (1997) 11 SCC 26 [State of Maharashtra versus Ashok Chotelal Shukla] . They also rely upon the judgment of the Hon’ble Supreme Court reported in AIR 2002 SC 2078 [Girdhar Shankar Tawade versus State of Maharashtra] .

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Learned A.P.P. appearing for the State argues that there are sufficient materials to convict the appellant and the evidences are cogent and reliable. He submits that, in fact, the case should have been under Section 304B of the Indian Penal Code as the ingredients of Section 304B of the Indian Penal Code have been established, but, surprisingly, the charge was only framed under Section 306 and 498A of the Indian Penal Code. He submits that when the deceased died unnatural death within 7 (seven) years of marriage and there is evidence of demand of dowry and torture, the burden of proof shifts upon the accused persons and the accused persons should have proved their innocence, but, in this case, the same has not been done, which ought to have been. He submits that from the evidence on record, offence under Section 498A of the Indian Penal Code is made out and there are sufficient evidence to that effect. The witnesses have clearly supported the fact that there was demand and torture was related to the demand. Even the witnesses have stated that the deceased had narrated before them that she was being harassed and tortured because of demand of dowry. He lastly submits

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that the conviction is absolutely justified.

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After analysing the evidence and from the arguments of the parties and after going through the record, I find that marriage between the appellant and the deceased is not disputed. P.W.1 Mahendra Mahato had categorically stated that his sister was being tortured by this appellant for demand of dowry. The fact that this appellant had assaulted the deceased and because of the said assault, the deceased left the house and went to her aunt’s house is also corroborated from the evidence of P.W.4. From reading the evidence of P.W.1 and P.W.4, one can find that because of the assault, she left her matrimonial home and went to the house of her aunt. Both these witnesses tried to pacify the appellant and tried to make him understand, and thereafter the deceased was taken by this appellant. P.W.3 also has corroborated the fact that the amount of money was being demanded by the appellant and deceased was being tortured. Further, P.W.5, P.W.6 have categorically stated that the deceased used to narrate before them about the torture and demand of money by this appellant. Be it noted that P.W.5 is an independent witness. P.W.9, the doctor, who conducted the postmortem, has found that the death is unnatural and ligature mark was found on the neck.

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Thus from the aforesaid evidences, I find that there is consistent statement of the witnesses that appellant used to demand dowry and used to assault the deceased. Surprisingly, I find that the charge was framed under Section 498A and 306 of the Indian Penal Code, but, the conviction is only under Section 498A of the Indian Penal Code. When there is a composite charge under Sections 498A and 306 of the Indian Penal Code, acquittal under Section 306 of the Indian Penal Code will not automatically entail acquittal of the accused from the charge under

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Section 498A of the Indian Penal Code. Conviction under Section 498A of the Indian Penal Code can be sustained even if the charge under Section 306 of the Indian Penal Code fails, if there are sufficient evidence available on record independently to prove the charge under Section 498A of the Indian Penal Code. The term “cruelty” as incorporated under Section 498A of the Indian Penal Code has been explained in the said section itself. Explanation (b) to Section 498A of the Indian Penal Code explains that any harassment of a woman with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security, is “cruelty” within the meaning of Section 498A of the Indian Penal Code. In this case, as mentioned earlier, witnesses have consistently stated that there was torture and harassment, as a sum of Rs.10,000/- (Rupees Ten Thousand) which was demanded as dowry, was not paid. Independent witnesses and other witnesses have clearly stated that the deceased lady had narrated before them about the demand and the torture which was meted out by this appellant for non-fulfillment of the demand. The witnesses have also stated that this appellant had driven out the deceased from her matrimonial house for non-fulfillment of the demand for which deceased had taken shelter in the house of P.W.4. Thereafter, informant and P.W.4 went and met the appellant and after making him understand, the deceased was sent to the matrimonial home. Ultimately, it is an undisputed case that the deceased died in the matrimonial home and the death was not natural. 15. Even on these facts that the Trial Court has not convicted the appellant under Section 306 of the Indian Penal Code, but, after appraising the evidence, the Trial Court found that there are sufficient materials to convict the appellant under Section 498A of the Indian Penal

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Code.

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After appraising the evidence and what has been discussed above, I find that there is no illegality in the judgment whereby the appellant has been convicted under Section 498A of the Indian Penal Code and has been sentenced to undergo imprisonment for a period of 3 (three) years.

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Thus, this appeal is bereft of any merit. The judgment of conviction dated 20^th December, 2006 and Order of sentence dated 21^st December, 2006 passed by the learned Additional District & Sessions Judge, Fast Track Court No.6, Jamshedpur in Sessions Trial No.354 of 1999, whereby the appellant was found guilty and convicted for offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 3 (three) years with a fine of Rs.2000/- (Rupees Two Thousand) and in the event of default in payment of fine the appellant was sentenced to undergo additional simple imprisonment for a period of 6 (six) months, are hereby affirmed. This appeal stands dismissed.

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Since the appellant is on bail, his bail bonds are cancelled. Appellant is directed to surrender before the Trial Court within a period of four weeks from today, failing which Trial Court will take all appropriate steps for taking the appellant into custody for serving out the remaining part of the sentence.

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Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this judgment.

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(Ananda Sen, J.)

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High Court of Jharkhand, Ranchi Dated, the, 23^rd October, 2018 Kumar/Cp-03

Kali Pada Mahato v. State of Jharkhand

Case brief

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Kali Pada Mahato v. State of Jharkhand

Case brief

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