Patna High Court
Shashikant Jha & Ors vs State Of Bihar on 27 June, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.414 of 2005
===============================================
1. Shashikant Jha son of Sikandar Jha
2. Sikandar Jha son of Late Kalit Narayan Jha
3. Vina Devi wife of Shashikant Jha
4. Ratna Devi wife of Rakesh Jha
5. Sahja Jha @ Sahja Devi wife Sikandar Jha
All are residents of village Mohammadpur,
P.S.Amarpur, District Banka
... .... Appellants
Versus
The State Of Bihar .... .... Respondent
with
Criminal Appeal (DB) No. 506 of 2005
===============================================
Dharmendra Kumar Jha @ Dharma Jha son of
Sikandar Jha, resident of village Mohammadpur,
P.S.Amarpur, District Banka
.... .... Appellant
Versus
The State Of Bihar .... .... Respondent
Both the above appeals are against the judgment
of conviction dated 07.06.2005 and order of
sentence dated 09.06.2005 passed by Sri Ganesh
Prasad Singh, Additional Sessions Judge, Fast
Track Court No.II, Banka in Sessions Trial No.
364 of 1994/Trial No.320 of 2005.
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Appearance :
For the Appellants: Mr.Shishir Kumar,Advocate
(Amicus Curiae)
(in both the appeals)
For the Respondent: Mr.Ashwini Kumar Sinha,APP
( in both the appeals)
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CORAM:HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA
AND
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA)
Date: 27-06-2012
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Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 2
Appellants Shashikant Jha, Sikandar Jha,
Vina Devi, Ratna Devi and Sahja Jha alias Sahja
Devi of Cr.Appeal (DB) No. 414 of 2005 and
appellant Dharmendra Kumar Jha alias Dharma Jha
of Cr.Appeal (DB) No. 506 of 2005 have impugned
the judgment dated 07.06.2005 passed by
Additional Sessions Judge, Fast Track No.II,
Banka in Sessions Trial No. 364 of 1994/Trial No.
320 of 2005/G.R.No. 580 of 1993 whereby all the
appellants of both the appeals have been found
guilty under Section 304(B) read with Section 34
of the Indian Penal Code. Appellant Dharmendra
Kumar Jha alias Dharma Jha (Cr.Appeal (DB) No.
506 of 2005) has been sentenced to undergo
rigorous imprisonment for life and other five
appellants of Cr.Appeal (DB) No.414 of 2005
namely, Shashikant Jha, Sikandar Jha, Vina Devi,
Ratna Devi and Sahja Jha alias Sahja Devi have
been sentenced to undergo rigorous imprisonment
for seven years.
2. The brief facts which led to
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 3
culmination of appeal relates to an occurrence
of 02.06.1993. On that date at 9.00 A.M. the
informant Arunesh Bhatt had been to Amarpur Bazar
for purchasing. While he was in the market at
11.00 A.M., he heard that daughter of Sikandar
has been done away. On hearing such information,
he rushed to village Mohammadpur and after
reaching there he found his sister Panki killed
by Garasa inside the room and a garasa was found
there. The dead body was lying on a cot inside
the room. The family members were not present
there. Many villagers and local Chaukidar were
present there. On query, they told that Pinki has
been killed at 10.00 A.M. by her husband
Dharmendra Kumar Jha alias Dharma Jha, her
father-in-laws Sikandar Jha, brother of her
husband Shashikant Jha, her mother-in-law Sahja
Jha alias Sahja Devi and wives of Shashikant Jha
and Munna Jha and they have left the house. In
the preceding June, Pinki was married with
Dharmendra Kumar Jha alias Dharma Jha. After
marriage Dharmendra Kumar Jha and his family
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 4
members started demanding a motorcycle and
Rs.10,000/- and on account of inability of the
victim to fetch the desired article and amount,
she was being regularly tortured and was
threatened to dire consequences. This was
reported by Pinki. Hence, she was killed on
account of her failure to bring the desired
amount and a motorcycle by her in-laws.
Fardbeyan (Ext.5) was witnessed by Sudhin Prasad
Yadav (not examined on account of his death).
Formal F.I.R.(Ext.6) of this case i.e. Amarpur
P.S.Case No. 115 dated 02.06.1993 under Sections
302/34 of the Indian Penal Code and 3/4 of Dowry
Prohibition Act was registered. After
investigation, the case was found to be true
under Section 304(B)/34 of the Indian Penal
Code. The case was committed to the court of
sessions where charges were framed to which the
accused persons pleaded innocence and preferred
to face the trial.
3. From the trend of the cross-
examination it appears that the defence of the
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 5
accused was of false implication and also that
some strangers have killed the victim and no
demand of dowry was made.
4. In order to prove its case the
prosecution has examined six witness. P.W.1 is
Anandi Bhat. He is father of the deceased. P.W. 2
is the informant of the case. P.W.3 Manohar
Prasad Yadav and P.W.5 Rabindra Nath Jha are
other material witnesses but they have been
declared hostile by the prosecution as they have
not supported the allegation. P.W.4 has conducted
the post mortem over the dead body of the
deceased and post mortem report has been marked
as Ext.2 which is in the pen and signature of
P.W.4. P.W.6 who is Investigating Officer of the
case, in his crossed-examination has stated that
he has seized a garasa with blood stains from the
room of the husband of the deceased.
5. The trial court after hearing learned
counsel for the parties and taking into
consideration the evidences on record came to the
conclusion that the prosecution has been able to
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 6
prove its charge against the accused persons
beyond the shadow of all reasonable doubts and
considering the gravity of the evidences all the
appellants were convicted under Section 304(B)/34
of the Indian Penal Code and Dharmdra Kumar Jha
alias Dharma Jha was sentenced to undergo
rigorous imprisonment for life and rest other
five accused persons were sentenced to undergo
rigorous imprisonment for seven years.
6. This court is required to reappraise
the evidences on record and to see as to whether
there was material available on record to prove
the charges against the appellants beyond the
shadow of all reasonable doubts or not.
7. First of all, we would like to
discuss the evidence of the doctor who is P.W.4
Dr.Amar Nath Jha. On 03.06.1993 he was posted as
Deputy Superintendent in Sub Divisional Hospital,
Banka and on that date at 9.35 A.M. he held post
mortem over the dead body of Smt.Pinki Jha and
found the following ante mortem injuries on her
person:
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 7
(i) cut wound 6"x1"x1" on forehead
horizontally frontal bone fractured
and underneath frontal bone of
brain injured.
(ii) Cut wound 2 ½"x1"x1" on right
chick, right maxillary bone broken.
(iii) cut wound 4"x1"x2" on left chick,
left maxillary bone fractured.
(iv) cut wound 1½"x1"x1" on right
forearm, right radius and ulna broken.
Uterus gravid- seven and half months size of
pregnancy. Cause of death was shock and
haemorrhage. Time elapsed since death was within
24 hours. The injuries were caused by sharp
cutting instrument-may be Garasa. In cross-
examination this witness has stated that the dead
body was washed before performing post mortem.
8. Now we deal with the evidences of
other witnesses. The informant P.W.2 has stated
that on 2.06.1993 he was in the market where heard
that her sister Pinki has been killed by her in-
laws namely, Dharmendra Kumar Jha alias Dharma
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 8
Jha, Sikandar Jha, Shashikant Jha, Sahja Jha, wife
of Shashikant Jha and wife of Munna Jha. On
getting such information, the informant directly
went to village Mohammadpur and found the dead
body of Pinki in a room. It was bearing sharp
cutting wounds on the forehead, chicks and
forearm. Many villagers were present in the house
of Sikandra Jha and they told that Sikandar Jha,
Dharmendra Jha, Shashikant Jha, Sahja Jha and
wives of Shashikant and Munna Jha killed the
deceased on account of inability of Pinki Jha to
bring dowry. This witness has also stated that
there was demand of a motorcycle and Rs.10,000/-.
When the father of Pinki exhibited his inability
to fulfill the desired demand, Pinki was
threatened to dire consequences and she told her
father that she was being abused, assaulted and
mentally tortured. This witness has stated that
police came at the house of Sikandar Jha and
fardbeyan was recorded. This witness has stated
that the fardbeyan was explained to me and after
he found it correct he put his signature. Sudin
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 9
Prasad Yadav-his co-villager put his signature as
attesting witness. This witness stated that Sudin
Prasad Yadav has died about one year ago. In
cross-examination nothing could be brought to
disbelieve the evidence of this witness.
9. P.W.1 Anandi Bhat is the father of
the deceased Pinki Jha and he has fully supported
the evidence of P.W.1. He has stated that his
daughter came to his house twice after marriage
and she told that her in-laws were demanding a
motorcycle and Rs.10,000/- and for that they were
torturing her. This witness has stated that he met
with the father-in-law of his daughter and
narrated his inability in fulfilling the demand
but as the demands of the accused persons were
not fulfilled, they committed murder of his
daughter Pinki Jha.
10. On the basis of evidence of these
two witnesses, the prosecution has tried to prove
the charges. P.Ws. 3 and 5 have been declared
hostile. Though the prosecution has claimed that
other villagers and local Chaukidar were present
Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 10
when the informant arrived at village Mohammadpur
but they have not come to depose. According to
informant, the persons of village who were present
at the house of Sikarndar Jha told that Pinki Jha
has been killed by her in-laws. Though two persons
of village Mohammadpur came to depose but both of
them have been declared hostile. The witnesses are
generally reluctant to come to court to depose
against the accused, particularly villager because
they mostly known to each other and avoid enmity
with their own villagers. Non-examination of such
witnesses could not create any doubt with regard
to version of the prosecution that Pinki was
killed.
11. Learned counsel for the appellants
has submitted that the fardbeyan was recorded on
02.06.1993at 2.00 P.M. but it was received in the court on 08.06.1993 i.e. after six days of
the occurrence. The mandate of Section 157 of the Code of Criminal Procedure is that the fardbayn should reach the court without delay and the word used in the Section is "forthwith". Therefore the Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 11 belated transmission of the fardbeyan by the police to the court shows that case was lodged after thought. Section 157 of the Code of Criminal Procedure mandates the Officer-in-charge of the police station to forthwith send the report of the case to nearest Magistrate empowered to take cognizance. In the present case, it has come that the report was not sent promptly and the delay has caused prejudice to the accused.
Under Section 157 of the Code of Criminal Procedure, it is the requirement from the Officer-in-charge of the police station to bring transparency of the investigation by sending the report to the court without delay. When the first information report was recorded without delay and investigation started on the
basis of F.I.R. and there is no infirmity brought to the notice of the court, then the delay can be said to be well explained and it can safely be presumed that it has not caused prejudice to the accused. It cannot be by itself presumed that the investigation was tainted and the prosecution was Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 12 insupportable. The facts of the present case shows that after registration of the F.I.R., the case was investigated into and other paraphernalia were obtained. Therefore, in the present case it can be presumed that the delay has been explained.
12. After going through the evidence of P.W.1 and P.W.2 it appears that there is contradiction between the evidence of these two witnesses. P.W.2, brother of the deceased, has stated that the husband of the victim Dharmendra Kumar Jha alias Dharma Jha was living at Amarpur along with his wife Pinki where he had his medicine shop although both the witnesses have stated about the demand of Rs.10,000/- and a motorcycle. P.W.2 being the informant of the case has given altogether a different version with regard to life and livelihood of the husband of Pinki Jha wherein he has stated that Dharmendra Kumar Jha alias Dharma Jha was living at Amarpur as he has a medicine shop there. This evidence of the informant gives a different picture and the case of the husband for offence under Section Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 13 304/B of the Indian Penal Code is always distinguishable from the case of other accused. After performing marriage, the duty of the husband is to take full care of his wife and he cannot left her at the mercy of other family members. The husband is not required only to perform his duty towards his wife but he is required to see that the wife who comes from the different family is fully adjusted and rehabilitated in his family. Failure of the husband may result in various types of torture. If the husband takes proper care to his wife and provides affection to her to the knowledge of his entire family, then nobody will dare to disturb his wife. The husband of the present case is not an unemployed and depends upon others rather in the evidence of P.W.2 it has come that he was an earning member of the family as he was a proprietor of a medicine shop. In a joint family earning member gets special attention because the livelihood of the entire family depends upon him. Nobody can venture to disturb the wife on getting signal from the earning member Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 14 who is husband here that if they do not provide proper care and provides required love and affection towards his wife; then the husband may think otherwise. It appears from the evidence that the husband of the deceased Dharmendra Kumar Jha alias Dharma Jha has not given such hint to his family members as in course of business he was residing separately with his wife at Amarpur as has been explained by the witnesses. Therefore, the evidence that the husband was residing along with his wife at Amarpur establishes the fact that he was at least residing separately from other in-laws. Therefore, the case of the husband is separable from the cases of others who have been not attributed any overt act. The seizure list (Ext.3) in column no.2 mentions that one fresh blood stained garasa was seized from the eastern side of room of Dharmendra Kumar Jha alias Dharma Jha. Therefore, the seizure of fresh blood stained garasa at 12.55 Noon on 02.06.1993 i.e on the date of occurrence was made from a room of the house of Dharmendra Kumar Jha alias Dharma Jha. Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 15 The seizure was made from a room which was in exclusive possession of Dharmendra Kumar Jha alias Dharma Jha and it was not from general portion of the house or room of any other accused. Therefore, the prosecution has established that Pinki Jha was found killed in the room of Dharmendra Kumar Jha alias Dharma Jha and fresh blood stained garasa was seized from the room which was in exclusive possession of Dharmendra Kumar Jha alias dharma Jha. Therefore, his case is quite distinguishable from others and it has been rightly distinguished by the trial Court and that is why Dharmendra Kuamr Jha alias Dharma Jha has been sentenced to undergo rigorous imprisonment for life whereas others have been sentenced to undergo rigorous imprisonment for seven years.
13. In view of the discussions made above, it is apparent that the evidence has come that Pinki Jha was living with her husband at another place in connection with business of medicine or she was living separately from other Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 16 family members. She was found killed by using sharp cutting weapon namely, garasa and that garasa was seized from the room of Dharmendra Kumar Jha alias Dharma Jha. Thus, there was material available on the record to establish beyond the shadow of all reasonable doubt that killing was made by Dharmendra Kumar Jha alias Dharma Jha. So the charge against Dharmendra Kumar Jha alias Dharma Jha stands fully proved and his conviction and order of sentence requires no interference by this Court. Accordingly, the appeal preferred by him i.e. Cr.Appeal (DB) No. 506 of 2005 is dismissed.
14. So far as the charge against the other five appellants of Cr.Appeal (DB) No. 414 of 2005 is concerned, the prosecution has failed to prove that they were living jointly with Dharmendra Kumar Jha alias Dharma Jha and they had any hand in demanding money and a motorcycle because they would not have been beneficiary of the said demand. No specific role for any demand or torture by appellants Shashikant Jha, Sikandar Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 17 Jha, Vina Devi, Ratna Devi and Sahja Jha alias Sahja Devi was brought by the prosecution through its evidence. Hence it can be said that their role in causing death has not been established beyond the shadow of all reasonable doubts for proving the charge under Section 304(B)/34 of the Indian Penal Code. The prosecution established that the victim was put to cruelty or harassment by relatives of the husband but the ingredients have not been proved against these appellants. Taking into consideration all the above, we are of the view that the prosecution has failed to prove the charge against these appellants beyond the shadow of all reasonable doubts. Hence they deserve to be acquitted.
15. In the result, Cr.Appeal (DB) No. 506 of 2005 is dismissed and Cr.Appeal (DB) No. 414 of 2005 is allowed. The judgment of conviction and order of sentence of the appellants namely, Shashikant Jha, Sikandar Jha, Vina Devi, Ratna Devi and Sahja Jha @ Sahja Devi (in Cr.Appeal (DB) No. 414 of 2005) is set aside and they are Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 18 acquitted of the charge. Appellants Sikandar Jha and Sahja Jha alias Sahja Devi are on bail, they are discharged from the liabilities of their bail bonds. Appellants Shashikant Jha, Vina Devi and Ratna Devi, who are stated to be in custody, are ordered to be released forthwith if not wanted in any other case.
16. Appellant Dharmendra Kumar Jha alias Dharma Jha (Cr.Appeal(DB)No. 506 of 2005) is on bail. His bail bond is cancelled and he is directed to surrender before the court below forthwith to serve out the sentence. The court below is also directed to take all coercive steps to take him into custody.
17. As none was appearing on behalf of the appellants in both the appeals, Mr.Shishir Kumar, Advocate was appointed as Amicus Curiae to assist the court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr.Kumar, Advocate.
18. Let a copy of first page and last page of the judgment be given to Mr.Shishir Kumar, Patna High Court CR. APP (DB) No.414 of 2005 dt.27-06-2012 19 Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna.
(Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated, the 27th June,2012 Tahir/(NAFR)