Patna High Court
Laxman Singh @ Lachhuman Singh And Ors. vs State Of Bihar on 8 April, 2003
Equivalent citations: II(2003)DMC491
Author: Chandra Mohan Prasad
Bench: Chandra Mohan Prasad
JUDGMENT Chandra Mohan Prasad, J.
1. The facts of both these appeals being common, they have been heard together and are being decided by this common judgment.
2. These two appeals have been filed against the judgment dated 23rd of January, 2002 passed by the 3rd Additional Sessions Judge, Aurangabad in Sessions Trial Nos. 308 of 1990/286 of 2001 whereby and whereunder, all the four appellants were convicted Under Sections 304-B, 498-A and 201 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years, one year and one year respectively for the aforesaid offences.
3. The fardbeyan of the case was lodged by Ramjivan Singh, father of deceased Nira Devi. The informant stated in the fardbeyan that he had married his daughter Nira Devi (deceased) to appellant Bijendra Singh in the year 1987 and Gauna was performed in the year 1988 and that through his daughter (deceased) motor-cycle was being demanded by the appellants mother-in-law, father-in-law and other family members. He (informant) was not in a position to fulfil his demand. The informant further alleged that on 3rd of August his elder son-in-law's younger brother Anil Singh had gone to deceased's Sasural and he had inquired from deceased's Gotani as to where she (deceased) was, when her Gotani had disclosed that she (deceased) was sleeping inside the house. Then Anil Singh went inside the house but he did not find her there. Then on being asked, Gotani explained that Nira deceased had received electric shock while fixing plug and she died due to shock and that the village people had taken the deceased for cremation. Hearing this, Anil Singh proceeded towards cremation ground and he found that the village people were returning from there after cremating the dead body. Then it is said that Anil Singh was detained for three days and he returned to his house on the fourth day and he informed his father. Then he (Anil Singh's father) came to his (informant's) house on 8th of August, and thereafter his (informant's) brother went to deceased's Sasural and when he asked deceased's father-in-law, he disclosed that the deceased had died due to electric shock. Then it is said that his (informant's) brother went to Madhya Pradesh where he (informant) was in service and he informed him about the matter. Then the informant further says that he returned from Madhya Pradesh and on inquiry, he learnt at some places that the deceased had died of diarrhoea. The informant suspected that the two appellants had killed his daughter (deceased) for want of mother-cycle. Thereafter, after investigation police submitted charge-sheet against all the appellants and after trial they were convicted as stated above.
4. In this case prosecution has examined altogether seven witnesses whereas the accused have examined two defence witnesses. P.W. 1 Rekha Singh is deceased's uncle, P.W. 2 Ramjivan Singh is deceased's father, P.W. 3 Nandjee Singh, SI is a formal witness, who had deposed that on taking charge of investigation from his predecessor he had submitted charge-sheet and he had also recorded the statement of Rekha Singh. P.W. 5 Upendra Singh is also a formal witness who has proved the R.I.R. (Ext. 2). P.W. Mahamaya Pd. Singh, P.W. 6 Ramdhani Singh and P.W. 7 Anil Kumar have turned hostile. P.W. 4 deposed that he was a co-ordinator of Barun Prakhand Janta Dal and Bisheshwari Devi had brought one man to him and he had taken that man to the police station and had requested the police for taking action on the complaint of that person. P.Ws. 6 and 7 have not supported the prosecution story and they have denied to have made any statement before the police in support of prosecution case. The Investigating Officer had not been examined in this case to prove any police statement.
5. Out of the defence witnesses, D.W. 1 Mukhlal Singh has proved a printed marriage invitation card of the bridegroom side showing the date of marriage of the deceased as 29th April, 1980. The said card has been marked Ext. A. D,W. 2 Awadh Kumar has proved a post-card said to be in the writing of deceased's younger sister Reshma Kumari and the said post-card has been marked as Ext. B. At paragraph 4 of his evidence, D.W. 2 has been suggested by the prosecution that the deceased was being tortured by the appellants due to the reason that she was not giving birth to any child and this witness has denied this suggestion.
6. P.Ws. 1 and 2 are the only material witnesses who have come to say about the prosecution case. P.W. 2 (the informant) deposed that he had married his daughter with appellant Bijendra Singh in the year 1987 and that the Gauna was performed in the year 1988. He further deposed that his daughter's mother-in-law, father-in-law, bhaisur and husband (the appellants) were always torturing her and that they were demanding motor-cycle in dowry and that on 28th May, 1989, Bijendra Singh had taken his daughter (the deceased) after bidai and that on 3rd August, 1989, the Sasural people killed his daughter by burning her. He further deposed that Anil Singh informed his younger brother (P.W. 1). Then he (P.W. 1) went to deceased's Sasural where deceased's father-in-law stated that the deceased died due to electric shock. In his evidence, he says that the father-in-law, husband, bhaisur, mother-in-law and Gotani of the deceased had killed the deceased by burning her due to non-fulfilment of demand of motor-cycle. In his cross-examination at Para-5, he deposed that at the time of marriage, Nira (deceased) was aged 18 years and at the time of her death, she was of 26 years. He said that the marriage was performed in the year 1987, but he has no paper to show the date of marriage. He said that he had not got any Invitation Card printed for the marriage ceremony. At paragraph 5 of his cross-examination, he deposed that Bijendra Singh and his family members had never demanded any motorcycle from him and that his daughter (deceased) had read upto Class VII and she had never intimated him by writing about the demand of motor-cycle by her in-laws. First of all, he had talked with Nira (deceased) in January, 1989 about the demand of motor-cycle but she had not complained about this to his son or the father-in-law of the deceased. At paragraph 7, he deposed that he had not visited Nira's Sasural, after her bidai on 28th May, 1989. At Paragraph 6, he deposed that Nira (deceased) and her husband were on visiting terms to him and that there did not remain any kind of bitterness in Bijendra's treatment with him. At Paragraph 7 he deposed that in his presence, the Sasural people had not done any kind of ill-treatment with the deceased. He also says that his daughter had also never informed him about any ill-treatment at the hands of her Sasural people. He (informant) has used the word "Pratarna" (Pratarit Karte The), in his fardbeyan, but at Paragraph 6 of his evidence, he says that he does not know the meaning of "Prateirna". At Paragraph 8 of his evidence, he deposed that before lodging the case at the Police Station, he had gone to Aurangabad and he had consulted the lawyers there. He further says that all the adult members of the family have been made accused in this case.
7. P.W. 1 Rekha Singh is deceased's uncle. He similarly deposed about the marriage in 1987, He further deposed that in the year 1989, he had gone to deceased's Sasural but Lakshman Singh did not allow him to meet Nira (deceased) saying that unless motor-cycle is given, he will not be allowed to meet her. He further deposed that he learnt about the occurrence on 9th August, 1989. Then he went to the village Handal Pipra where Lakshman Singh's elder son told him that Nira died while fixing electric bulb in holder and Rajendra Singh said that she died of diarrhoea. Then he says that he went to Madhya Pradesh and he informed his brother there. At Paragraph 2 of his evidence, he says that deceased's father-in-law was demanding motor-cycle and he had told that the deceased would be killed, if the demand was not fulfilled. At Paragraph 3 he deposed that he had never received any letter from Nira's Sasural. At Paragraph 3 he had further deposed that the demand of motor-cycle was made for the first time in 1987 when the marriage negotiation was going on and that Ramjivan Singh, Prahlad Singh and Kailash Chaudhary were present at that time. He deposed that in deceased's Sasural, he had not enquired from any villager to ask as to how the deceased had died.
8. In this case, the conviction is Under Sections 304-B, 498-A and 201 of the I.P.C. So far charge Under Section 201, I.P.C. is concerned, there is no evidence to show that the appellants had disposed of the dead body in order to conceal some evidence. Therefore, the accused deserve to be acquitted of this charge and they are so acquitted.
9. As regards the charge Under Section 304B, I.P.C. as held by the Hon'ble Supreme Court in the case of Kansraj v. The State of Punjab, I (2000) DMC 645 (SC)=IV (2000) SLT 162=(2000) 5 SCC 207, in a case of dowry death, the prosecution is obliged to prove the following elements :
(a) Death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) Such death should have occurred within seven years of her marriage;
(c) The deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) Such cruelty or harassment should be for or in connection with demand of dowry; and
(e) To such cruelty or harassment, the deceased should have been subjected soon before her death.
10. Therefore, this has to be examined whether the prosecution has been able to prove the five elements so that conviction Under Section 304-B, I.P.C. can be sustained.
11. Firstly, the learned Counsel for the appellants argued that the death had not occurred within seven years of marriage and that it had taken place after lapse of this period. In this context he referred to the categorical statement of deceased's father P.W. 2 (para-5) that at the time of marriage of Nira (deceased), she was aged 18 years and she died at the age of 26 years. He argued from this evidence that the death had not taken place within seven years, but after seven years of marriage, it is worth noting that the informant simply says in his examination-in-chief that he had married his daughter in the year 1987 but he does not give any date of marriage. It is not known why he choose not to say about the date of marriage of the deceased. On the other hand, the accused has proved the Invitation Card (Ext. A) of the bridegroom side. This shows the date of marriage 29th April, 1980, the date of occurrence as taken by the informant himself in his examination-in-chief is 3rd August, 1989. The learned APP challenged the Ext. A saying that it was proved by a formal witness and the Press owner who printed it had not been examined. No doubt, Ext. A has not been proved with much of standard but in a prosecution case, the defence is not required to prove his defence. It is the prosecution which has to prove beyond shadow of doubt and so far the matter of period between the marriage and death is concerned, the prosecution is not coming up with a definite date of marriage; rather the cross-examination of the informant's father, as discussed above, shows that the. period exceeds seven years. Hence, it is found that the prosecution has not been able to prove that the marriage did take place within seven years of marriage.
12. The prosecution story is that the deceased was killed due to non-fulfilment of demand of motor-cycle in dowry, but the deceased's father P.W. 2 (Para-5) deposed that on enquiry in village Hander Pipra, the village people had told him several causes of death, such as, diarrhoea, electric shock, committing suicide etc. and he also categorically deposed that none of the villagers told that the Sasural people had killed her. In the case, there is no other evidence to show about the circumstances under which the deceased died. The learned Counsel for the appellants argued that there is no evidence to show that the death was caused by any burn or bodily injury or it had occurred otherwise than under normal circumstances. Considering the evidence on this point, I find that the evidence led by the prosecution is not convincing and cogent to hold that the death had occurred by any burn or bodily injury or under the circumstances other than normal.
13. The learned Counsel for the appellants argued that there is no evidence to show that the deceased was tortured for non-fulfilment of demand of dowry. He referred to the evidence of deceased's father P.W. 2 (Para-6) that his daughter and son-in-law were on visiting terms with him and that the treatment of his son-in-law with him had not ever been with any kind of bitterness and his further evidence at Paragraph 7 is that in his presence, the Sasural people had not done any kind of ill-treatment on the deceased nor the deceased had intimated him in writing about any kind of torture at the hands of Sasural people. Besides the evidence as referred to, there is no evidence on this point, excepting some statements of informant's brother (P.W. 1) that in the year 1987, when he had gone to deceased's Sasural, Lakshman Singh (deceased's father-in-law) had not allowed him to meet Nira saying that unless the demand of motor-cycle was fulfilled, he (P.W. 1) would not be allowed to meet her. But any specific date of this visit is not disclosed and it has also come in evidence that none of the villagers were complained about this. In the light of the categorical evidence of deceased's father, the evidence of deceased's uncle on this point is not of much help of the prosecution.
14. It is important to discuss one point at this stage that the prosecution story about commission of torture is that due to non-fulfilment of demand of motor-cycle, the deceased was being tortured, but the prosecution takes a different stand, while cross-examining D.W. 2 and giving a suggestion to him that the deceased was being tortured, as she was not giving birth to any child. So the cause of torture as per prosecution case is also varying. Consideration of the entire evidence goes to show that the prosecution has failed to prove that the deceased was subjected to cruelty or harassment by her husband.
15. About the demand of motor-cycle, the appellants' Counsel referred to the evidence of deceased's father P.W. 2 (Para-5) that Bijendra Singh and his family members ever demanded any motor-cycle. The learned Counsel argued that this very statement substantially discredits the prosecution case that motor-cycle was being demanded. This evidence adversely affects the case of the prosecution on this point.
16. The learned Counsel for the appellants has also argued that in this case, the FIR has not been lodged in a natural and regular manner but it has been lodged after due deliberation and consultation with false allegation. The learned Counsel refers to the evidence of deceased's father P.W. 2 (para-8) that before going to the PS, he had gone to Aurangabad and he had consulted lawyers for taking opinion and that all the adult members of the Sasural people of the deceased have been made accused in this case. The submission of the learned Counsel for the appellants appears to carry substantial reasons in the light of the evidence of P.W. 2, as above, and it cannot be ruled out that there are embellishment and concoction in the prosecution story.
17. Thus, considering the discussion made above, I find that the prosecution has failed to prove that the death of the deceased was caused by any burn or bodily injury or it occurred otherwise than under normal circumstance and that it had occurred within seven years of marriage and further that the deceased was subjected to harassment or cruelty in connection with any demand for dowry, soon before the death. Therefore, I find that the charge Under Section 304-B, I.P.C has not been proved and the accused deserve to be acquitted of this charge and they are so acquitted.
18. The appellants have also been convicted Under Section 498-A, I.P.C. While dealing with the conviction Under Section 304-B, I.P.C, above detailed discussion has been made and it has been found that the prosecution has failed to prove the harassment or cruelty to the deceased. Therefore, in the light of that finding there is no scope for sustaining the conviction under this charge. Therefore, the appellants are acquitted of this charge also.
19. Thus, after considering the entire facts and circumstances of the case, stated above, I find that the prosecution has failed to prove the charges levelled against the appellants.
20. In the result, both these appeals are allowed, and the conviction and sentence, passed against the appellants is set aside. Appellants, namely Laxman Singh @ Lachhuman Singh (in Cr. Appeal No. 37 of 2002) and Bijendra Singh (in Cr. Appeal No. 55 of 2002) are directed to be set at liberty forthwith, if not wanted in any other case. The rest of the appellants who are on bail, are discharged from the liability of their bail bonds.