Patna High Court
Chandra Kishore Yadav vs State Of Bihar on 25 September, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.21 of 2009
Arising out of Saharsa P. S. Case No.316 of Year- 1999, Thana -Town, District- SAHARSA
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Chandra Kis hore Yadav, S/o Sri Dhaniklal Prasad Yadav, resident of village +
P.O. Bharrahi, P. S. + District-Saharsa.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Diwakar Prasad Singh- Advocate
For the Respondent/s : Mr. S. A. Ahmad-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 25-09-2018
Appellant Chandra Kishore Yadav has been found guilty
for an offence punishable under Section 498A of the I.P.C. and
sentenced to undergo S.I. for three years vide judgment of conviction
and order of sentence dated 22.11.2008 passed by the Additional
Sessions Judge, Fast Track Court No.II, Saharsa in Sessions Trial
No.68 of 2002.
2. Birendra Kumar (PW-7) filed Complaint Case
No.817C of 1999 on 09.09.1999, showing the date of occurrence from
17.01.1999to 03.09.1999 against appellant Chandra Kishore Yadav along with his father Dhaniklal Prasad Yadav and mother Mankiya Devi, which was sent to the concerned P.S. for registration and investigation of the case in accordance with Section 156(3) of the Cr.P.C., whereupon Saharsa P. S. Case No.316 of 1999 has been Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 2 registered and after investigation, chargesheet was submitted facilitating the trial, which concluded by way of recording of judgment of acquittal relating to Dhaniklal Prasad Yadav as well as Mankiya Devi. Simultaneously, convicting the appellant in a manner, subject matter of instant appeal.
3. As per complaint, the allegation so attributed against the appellant and others (since acquitted) divulges the fact that sister of complainant/ informant namely Jaimala Devi has been married with Chandra Kishore Yadav in the month of June, 1994. At the time of negotiation, marriage was settled over Rs.51,000/- as dowry against which, Rs.31,000/- was paid and with regard to remaining Rs.20,000/- , it has been agreed amongst that same would be paid according to availability. After marriage, Jaimala Devi gone to her sasural and began to discharge her marital obligation as a result of which, in the Year 1996, she begotten a male child, who unfortunately died after a year.
4. Then, the further prosecution case is that during stay of Jaimala Devi at her sasural, accused persons began to pressurize her to bring remaining Rs.20,000/- along with one scooter and for that, she was even threatened to of dire consequences in case, there happens to be failure at her end. On disclosure by Jaimala Devi that her Naiharwala is not in a position to satisfy their greed, whereupon Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 3 the accused persons began to torture her. They even stopped to provide food. Anyhow, message was conveyed and after receiving the same, complainant along with his co-villager rushed, convened a Panchayati, whereupon, it was resolved that Jaimala Devi will be kept in cordial way, but due amount must be paid. In spite of their full assurance that for the present on account of financial constraint, they are unable to fulfil the demand and will be paid as soon as they will have, did not deter, the accused persons from their nefarious activity as a result of which, Jaimala Devi was forced to leave her sasural in order to save her life and since thereafter, she is staying at her Naihar. During midst thereof, complainant rushed to pillar to post, convened Panchayati at local level wherein accused persons undertook that they will effect Bidai as well as Jaimala will be kept in cordial and harmonious atmosphere, but they have not honoured the same. It has further been disclosed that in the aforesaid background, Complaint Case No.796 of 1999 was filed on 04.09.1999, which was transferred to the Court of a Magistrate under Section 192 of the Cr.P.C. for holding an inquiry under Section 202 of the Cr.P.C., but complainant does not want to proceed there with and instead thereof, instant complaint has been filed.
5. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 4 Cr.P.C. is that of complete denial. It has further been pleaded that Jaimala Devi had fallen in love with one Pashupati Yadav of village- Bhaurrah and in the aforesaid background, she left her sasural voluntarily. Subsequently thereof, his brother got this case filed with an ulterior motive. In support thereof, oral as well as documentary evidence has been adduced.
6. In order to substantiate its case, prosecution had examined altogether nine PWs, who are PW-1, Yogendra Yadav, PW- 2, Rajo Yadav, PW-3, Mahendra Yadav, PW-4, Umesh Yadav, PW-5, Ramesh Yadav, PW-6, Natho Yadav, PW-7, Birendra Kumar, PW-8, Jaimala Devi and PW-9, Kartik Prasad Singh as well as had also exhibited as Exhibit-1, written report (copy of the complaint petition), Exhibit-2, formal F.I.R. Side by side, three DWs have been examined on behalf of defence, who are DW-1, Khushilal Yadav, DW-2, Chandeshwari Yadav and DW-3, Jitu Yadav as well as had also exhibited as Exhibit-A, voter list of the Year 2008 (though the first page speaks as 2004), Exhibit-B, certificate.
7. While assailing the judgment of conviction and sentence, it has been submitted at the end of the learned counsel for the appellant that judgment impugned is perverse, cryptic on account of non-appreciation of the materials available on the record in its right perspective. To justify the same, it has been submitted that I.O. has Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 5 not been examined. On account of non-examination of the I.O., serious prejudice has been caused to the appellant, more particularly in the background of the fact that there happens to be consistent case of the appellant that victim Jaimala Devi was in love with Pashupati Yadav and she slipped to the place of Pashupati Yadav relinquishing her sasural. So, had there been examination of the I.O., the appellant would have been in a position to cross-examine the I.O. on that very score, at least relating to whereabouts of Jaimala Devi, present status of Jaimala Devi, present residence of Jaimala Devi and whether she was mother of two children as pleaded, suggested by the appellant with Pashupati Yadav. So, submitted that due to non-examination of the I.O., serious prejudice has been caused to the accused/ appellant, on that very score alone, instant appeal is fit to be allowed.
8. In an alternative, it has also been submitted that PW-1 and PW-2 have become hostile and so far PW-3 to PW-8 are concerned, either they are own family members or kith and kin of the aforesaid Jaimala Devi, more particularly, save and except Jaimala Devi (PW-8), all are hearsay witnesses, whose evidences being inadmissible in the eye of law, would not give any support to the prosecution. So far Jaimala Devi is concerned, considering her dubious conduct, her evidence became unreliable and so, it virtually happens to be a case of no evidence. So, the judgment impugned is fit Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 6 to be set aside.
9. It has also been submitted that right from PW-3, the appellant has consistently suggested even to the Jaimala Devi (PW-8) that she had joined hands with Pashupati Yadav with whom, she had married herself out of her sweat-will and was leading happy conjugal life, begotten two children and further, by examining three DWs in consonance with the exhibit of the public document, Exhibit-A, the voter list identifying Jaimala Devi to be the wife of Pashupati Yadav of village-Bhairo, substantiated the case of the defence, above the preponderance of probabilities and so, there was no occasion left for before the learned lower Court to record the judgment of the conviction.
10. It has also been submitted that the occurrence is of the Year 1999, the case was instituted in the Year 1999 and more than 19 years have passed, the parties are independently dealing with their affair since thereafter and further, appellant faced trauma of litigation for the last 19 years and so, even if finding the case to be duly substantiated at the end of the prosecution, would not justify the sentence rather in the facts and circumstances of the case, it happens to be a good case wherein the application of Probation of Offenders Act could be exercised.
11. On the other hand, learned Additional Public Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 7 Prosecutor while supporting the finding recorded by the learned lower Court has submitted that witness may lie not the circumstance. There happens to be no denial at the end of the appellant that Jailmala Devi is not his wife. As pleaded, Jaimala Devi left his place to go to Pashupati Yadav, then in that circumstance, there should have been proper step at the end of the appellant on that very score. Contrary to it, there happens to be complete silence at the end of appellant. Not only this, at least the year in which, she left the place and married with Pashupati, would have been disclosed. On the other side, there happens to be specific disclosure in the complaint petition, which was filed in the Year 1999 that Jaimala Devi had to escape from her sasural in order to save her life, which Jaimala Devi during course of her evidence as PW-8, had corroborated and the same has not been tested at the end of the appellant while cross-examining her. The evidence of other witnesses, PW-3, PW-7, who happen to be brother of Jaimala Devi (PW-8), had corroborated the testimony of the PW-8. PW-3 has not been cross-examined and so, his evidence remained intact. So far evidence of PW-4, PW-5, PW-6 are concerned, they have corroborated evidence of PW-7 as well as PW-8, whereupon the judgment impugned did not attract interference.
12. Before entering into the factual aspect, first of all, let us look at Section 498A of the I.P.C., which reads as follows:-
Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 8 [498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun ished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] As is evident from the plain reading of the Section, cruelty has been defined under Clause (a) (b) independently guiding two different spheres. That means to say, any willful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental and physical). It also speaks her separately with regard to harassment at the woman where such harassment is with a view to coercing her or any person related with her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet with such demand. So, wherever, there Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 9 happens to be torture or cruelty with regard to or in the background or in connection with or relating to the fulfilment of demand in terms thereof, then in that circumstance, certainly there would be applicability of Section 498A of the I.P.C.
13. In the aforesaid background, now, the evidences are to be looked into and for that, the victim Jaimala Devi (PW-8) has got primacy. PW-8, during course of her examination-in-chief, had stated that she has been married with Chandra Kishore Yadav of village- Bharrahi about 12-13 years ago as per Hindu Rites and Customs. At the time of negotiation of marriage, it was agreed that Rs.20,000/- will be paid later on as per availability while remaining amount Rs.31,000/-, utensils, clothes etc. were handed over. After marriage, she had gone to her sasural Bharrahi and stayed for two years. During midst thereof, she begotten a male child. Her son fallen ill. Her husband as well as her sasuralwala had not provided treatment as a result of which, her son died. Then thereafter, her sasuralwala stopped to provide food and after confining her in a room, they began to physically assault her. Her husband as well as her sasuralwala were insisting over procurement of due amount of Rs.20,000/- as well as one scooter from her brother, which was resisted by her on the ground that her brother was not economically sound to honour their demand. Anyhow, information was sent by her to maika. Panchayati was Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 10 convened thrice, but her husband had not conceded. Panches have directed not to assault, keep his wife in congenial and harmonious atmosphere, do not kick her out, but her husband had not obeyed. Then thereafter, she came to her Maika along with her brother in order to save herself and since thereafter, she is staying at her Maika. Neither her husband nor any member of her sasuralwala is caring nor took any support for Bidai. During her stay at her sasural, she was brutally assaulted by her husband and his other family members. Once they have tried to set ablaze her after sprinkling kerosene oil, anyhow she was saved by neighbours, identified the accused. During cross- examination at Para-7, she had stated that she will not live with her husband as they will murder her. She had further stated that at the time of negotiation of marriage, she was not present. Rs.31,000/- cash was given and for that, no document was prepared. Negotiation was finalized at her darwaza. Then had disclosed the names of persons from her side, who were part of negotiation as Natho Yadav, Umesh Yadav, Ramesh, Mahendra, Kiro, her brother. From sasural side, Brahmdev, Bishundev, Suryadeo, Chhote Lal, Panna Lal and Ashok were there. They have stayed there. They have seen her and then thereafter, marriage was settled, solemnized. In Para-8, she had said that she is unable to disclose the date, month, year of birth of her son and in likewise manner, she is unable to disclose the date, month, year Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 11 of ailment of the deceased child. Then had denied the suggestion that she had not begotten a child. In Para-10, she had stated that she is unable to disclose the date, day of the assault having inflicted upon her. In likewise manner, she had stated that she is unable to disclose the date on which, demand of Rs.20,000/- and a scooter was advanced. Then there happens to be disclosure with regard to family status of her sasural. In Para-11, she had denied that Pashupati Yadav of village-Bhaura is her husband. She had also denied that Indradeo Yadav is her father-in-law. She had further stated that she is not knowing that in the voter list of Bhaura village, her name has been shown as wife of Pashupati Yadav. She had further denied that she had begotten two children with Pashupati Yadav. In Para-12, she had stated that for the last 14 years, she is staying at her Naihar Maheshpur. Then had stated that she is unable to say date and year of her marriage. She is not remembering the date of Panchayati. She is unable to disclose when her statement was recorded by the police. Then had denied the suggestion that during course of her statement before the police, she had not narrated with regard to Panchayati. Also said that she had stated before the police that Panches have directed her sasuralwala to keep her in cordial, harmonious atmosphere. Then had denied the suggestion that she was in love with Pashupati Yadav and used to go to his place frequently. She had further stated that now, Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 12 she is unable to live with Chandra Kishore Yadav. He is not related with her. Now, he happens to be her enemy and then, there happens to be finding of the Court that the witness is under stress and strain. At Para-14, she had stated that she has not been tutored for evidence. Then had denied the suggestion that she had filed false case. She had denied the suggestion that she had married with Pashupati Yadav and is living with him with whom, she had begotten two children. Then had denied that this case has falsely been filed. The evidence of remaining witnesses is to be considered later on as the plea advanced is to be discussed first in the light of evidence of victim.
14. Before entering into the evidence of the DWs, it has been settled at rest by the Hon'ble Apex Court in Ashok Kumar v. State of Haryana reported in A.I.R. 2010 S.C. 2839 that whatever been deposed by the DW, the accused is bound to share therewith. In the aforesaid background, first of all, the admissibility of exhibits are to be seen. Exhibit-A is the voter list, which ought not to be accepted in the background of the fact that it happens to be in two pages independent to each other (Photo copy). The first page speaks about voter list of in the Year 2004, wherein the village-Sonpura is found encircled and then, Bhaura has been mentioned. The second page happens to be of the Year 2008, wherein at serial no.863, there happens to be presence of Jaimala Devi, wife of Pashupati Yadav. A Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 13 blur photograph is there. When the aforesaid voter list has been properly seen at serial no.862, there happen to be name of one Anita Devi, wife of Pashupati Yadav. Both happen to be a photo copy. At the lower end of the aforesaid document, it has been incorporated that after photograph, the Election Officer will release the fresh voter list. That means to say, the document, which has been exhibited, is not the final publication of the voter list and so, would not cover the ingredients of public document. More particularly, it also happens to be photo copy without any identity, authentication, certificate. Be that as it may, the 2nd page is stereo one and on account thereof, it is difficult to recognize as a copy that too, in absence of proper methodology as required for getting the document exhibited. Exhibit- B is a certificate issued by whom, it is difficult to identity as there happens to be presence of so many persons with their signature of different dates. None of the persons whose presence happens to be over the aforesaid certificate has been examined and so, it also loses its proprietary.
15. Now, coming to the oral evidence, DW-1 is Khushi Lal Yadav, co-villager of the appellant. He claimed to be Ex-Mukhiya of the Bharrahi village. He claimed to know accused as well as Birendra Yadav and his sister Jaimala Devi. He had further stated that he had not participated in any Panchayati in between Birendra, his Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 14 sister with the accused persons. He had further stated that Chandra Kishore Yadav had not tortured Jaimala Devi at any earlier time nor assaulted nay kicked her out from his house. Jaimala Devi after marrying with Pashupati Yadav is staying at village-Bhaura. She had begotten two children. During cross-examination, he had stated that Jaimala Devi was married with Chandra Kishore Yadav. She had not begotten any child from Chandra Kishore Yadav. She stayed with Chandra Kishore Yadav for 1-1 ½ years. In Para-4, he had stated that he had not participated during second marriage of Jaimala Devi. He had deposed on hearsay basis regarding marriage as well as birth of the children.
16. DW-2 also a co-villager of the appellant, who had stated that his sasural lies at village Bhaura. Name of his father-in-law happens to be Bhulai Yadav. He knew Pashupati Yadav of village- Bhaura, who happens to be nephew of his father-in-law. Jaimala Devi is the name of wife of Pashupati Yadav. Pashupati Yadav had two children from his wife Jaimala Devi. Jaimala had not been tortured by her sasuralwala. Jaimala is living with Pashupati Yadav at village- Bhaura. During cross-examination, he had stated that he used to visit his sasural one's in a year. He is not knowing the family of his sasural. He is unable to disclose the name of Mukhiya of Bhaura.
17. DW-3 again a co-villager had deposed that he knew Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 15 both the sides. Chandra Kishore Yadav has been married at village- Maheshpur. His wife for the present, is living at village-Bhaura. She lives along with Pashupati Yadav. She had begotten two children from Pashupati. Jaimala Devi was wife of Chandra Kishore Yadav. He had further stated that his sister is married at village-Bhaura, whereupon he used to go to village and so, he knew Pashupati Yadav. Then had stated that Jaimala Devi was never tortured by Chandra Kishore Yadav or by his family members. There was no demand of dowry. Jaimala slipped on her own and married with Pashupati. During cross- examination, he had stated that his sister's marriage took place before his birth.
18. Now, coming to remaining witnesses, it is evident that PW-1 and PW-2 are co-villager of the appellant, who had not supported the case of the prosecution and on account thereof, they were declared hostile. During cross-examination, these witnesses were not at all confronted or suggested at the end of the appellant that Jaimala slipped, got married with Pashupati of village-Bhaura. That means to say, these two witnesses have not been tested at the end of the appellant with regard to activity of the victim (PW-8) and in likewise manner, defence could not introduce presence of Pashupati of village-Bhaura.
19. PW-3 is the another full brother of PW-8. He was Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 16 not cross-examined on account thereof, he was discharged. During his examination-in-chief, he had stated that his sister Jaimala Devi was married with Chandra Kishore Yadav in the Year 1994. Negotiation was finalized over Rs.51,000/- and as per availability, Rs.31,000/- was given. Rs.20,000/- remained due. His sister had gone to sasural after marriage and during course of her stay, she begotten a child, who died after a year on account of ailment. She was subjected to torture on the pretext of procurement of remaining Rs.20,000/- as well as one scooter. On her protest, she was physically manhandled. She was even not allowed to take food, whereupon they have convened Panchayati. In Panchayati, accused persons undertook not to torture her, but they continued with their activity. At one occasion, there was an attempt to eliminate her, but due to timely intervention by neighbours, she was saved. Thereafter, she has been kicked out. His sister again visited her sasural, but was not welcome, whereupon his younger brother brought this case.
20. PW-4 is the co-villager of the complainant/ informant, who during course of examination-in-chief, had reiterated the version and further, also disclosed that they came to know with regard to torture from Jaimala Devi for procurement of Rs.20,000/- as well as a scooter. During cross-examination at Para-10, he had stated that there was no dispute at the time of negotiation of marriage. There Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 17 was no dispute up-till five years after marriage. In Para-11, he had stated that Jaimala Devi had disclosed that she will not go to her sasural as she was being severely assaulted. In Para-13, he had stated that Jaimala is living along with her brother at village-Maheshpur. She had not remarried. He denied the suggestion that Jaimala Devi had re- married and is living at her sasural. In Para-15, he had stated that he is not remembering the exact date on which, he had participated in Panchayati, but the then Mukhiya Khushilal was also one of the Panch.
21. PW-5 is pattidar of the complainant/ informant and during course of his examination-in-chief, he had reiterated the version and further, said that he came to know about the misfortune faced by Jaimala at her sasural from Jaimala. During cross- examination at Para-8, he had stated that marriage was solemnized in the Year 1994. She stayed at her sasural for the next five years. During midst thereof, she used to visit her Maika even along with her husband. After five years, her husband has not come to his place. In Para-9, he had further stated that Jaimala begotten a son at Bharrahi. They have received information. They have gone to Bharrahi with sweats and other articles. They have gone 8-10 days after the birth of the child. In Para-10, he had stated that after two months of birth of the child, Jaimala Devi came to her Naihar and during course of her Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 18 stay, she had disclosed her woe, which she used to face at her sasural. In Para-11, he had stated that as soon as the tenure of five years of stay of Jaimala was over, her sasuralwala attempted upon her life by sprinkling kerosene oil and attempted to lit fire, but due to timely intervention, she was saved. There happens to be attention with regard to his previous statement. He had further stated that he had not seen the event of torture rather whatever deposed by him happens to be based upon the disclosure made by Jaimala.
22. PW-6 is also co-villager of the informant and during course of examination-in-chief, he had reiterated the prosecution case and further, stated that he came to know about the same on disclosure made by Jaimala. At Para-9, he had stated that he was one of the participants at the occasion of finalization of negotiation. In Para-10, he had stated that during course of her stay at her sasural, Jaimala begotten a son, on that very score, he had gone there. In Para-11, he had further stated that Jaimala was assaulted in his presence. In Para- 13, he had stated that he was not assaulted, but Birendra was assaulted. He had further stated that Jaimala is at Naihar. He had further stated that Jaimala has not re-married with Pashupati Yadav. Then had stated that no document of Panchayati was prepared, but it was participated by more than 50 persons. Mukhiya of Bhaura namely Khushi Lal Yadav was also there. Panchayati was convened at the Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 19 darwaza of Mukhiya. Then had denied the suggestion that Jaimala has re-married with Pashupati of village-Bhaura and had begotten two sons there from. Then had denied the suggestion that Jaimala is residing with her husband at village-Bhaura. He had stated that Jaimala is living at her Naihar. Then had denied the suggestion that Jaimala was never tortured. Then had denied the suggestion that Jaimala had shifted from sasural at the instance of his brother and then, re-married with Pashupati Yadav.
23. PW-7 is the informant/ complainant, brother of the victim. During his examination-in-chief, he had reiterated the allegation. He had further stated that seeing the pitiable condition of his sister, lastly he took her to his place where she is residing. During cross-examination at Para-11, he had denied the suggestion that it is not a fact "that whatever been disclosed by his sister, has been deposed by him". He had further stated that she was tortured in his presence also, but he is unable to disclose the date and time. In likewise manner, he is unable to disclose the date and time of the demand of Rs.20,000/- as well as a scooter. He had stated that he is unable to disclose the date and time on which, kerosene was sprinkled over Jaimala. In Para-13, he had denied the suggestion that his sister has been re-married with Pashupati Yadav. He had further denied the suggestion that father's name of Pashupati is Indradeo Yadav. In Para- Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 20 14, he had further stated that whole occurrence has been disclosed by Jaimala. Even in his presence, she was assaulted. In Para-16, he had shown presence of persons having boundary of sasural of his sister.
24. From the evidence available on the record, it is evident that status of Jaimala to be the wife of appellant is not at all denied. It is also not denied at the end of the appellant regarding her stay at his place. It is also evident that there happens to be no disclosure at the end of the appellant that she obtained divorce from him. A theme has been introduced at the end of the appellant that she slipped from her sasural on account of persisting love affair in between her as well as Pashupati and got married with him, begotten two child and is staying at village-Bhaura and for that, three DWs as well as two documents have also been exhibited, but so far nature of documents are concerned, that has already been disclosed not being admissible in the eye of law irrespective of the fact that those documents happen to be an exhibit of the record. Apart from this, so far oral evidence of DWs are concerned, that has also not been to the extent to inspire confidence, more particularly when the evidence of PW-1 and PW-2, a hostile witness, being a co-villager of the appellant, not been questioned or suggested though cross-examined elaborately, regarding re-marriage of Jaimala Devi with Pashupati Yadav. On the other hand, from the evidence of PW-8, the victim, it is Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 21 evident that during her examination-in-chief, she had categorically stated with regard to event of negotiation, part payment of the dowry, the rest amount which was to be paid subsequently, subsequent event, having been faced by her. The only infirmity persisting in her evidence is with regard to her inefficiency in disclosing the date, month, year of the demand as well as torture. But the same happens to be natural one as she has been examined in the Year 2007, while the occurrence is of the Year 1999 that too, being rustic, illiterate lady. Apart from this, there happens to be no cross-examination on the other aspect, which she had deposed during course of her examination-in-chief and that being so, the prosecution case is found duly substantiated. With regard to evidence of other PWs, it is evident that PW-3 has not been cross-examined, hence his evidence is found unshaken. Remaining PWs though stood as hearsay witness, stood the test. Furthermore, offence being committed within four-corner of a house lying away, so was not expected to be eye witness. Moreover, no cross-examination has been made on that very score. That being so, the case of the prosecution is found duly substantiated.
25. Now, coming to sentence, it is evident that learned lower Court had inflicted simple imprisonment for three years, which in the facts and circumstances of the case and further, considering the ordeal, which the appellant has faced since 1999, is a material fact, Patna High Court CR. APP (SJ) No.21 of 2009 dt.25-09-2018 22 which attracts due attention. From the record, it is evident that appellant was remanded in this case on 31.10.1999 and has been released on bail on 18.11.1999. That being so, the sentence is reduced to the period already undergone, however, is inflicted fine of Rs.5,000/- and in default thereof, to undergo S.I. for six months, additionally. In terms thereof, instant appeal is dismissed. Appellant is on bail, hence he is discharged from the liability of the bail bond. The fine amount should be deposited within eight weeks, failing which, the learned lower Court will be at liberty to proceed in accordance with law.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N. A. Uploading Date 01.10.2018 Transmission 01.10.2018 Date