Patna High Court
Rambahadur Sah And Ors. vs State Of Bihar on 11 May, 2005
Equivalent citations: II(2005)DMC523
Author: Syed Mahfooz Alam
Bench: Syed Mahfooz Alam
JUDGMENT Syed Mahfooz Alam, J.
1. This criminal appeal has been preferred against the judgment dated 11th day of May, 2001, and the order dated 16th May, 2001, passed by Mr. Shyam Badan Singh, 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial Nos. 332/90 and 4/91 whereby he has been pleased to convict all the four appellants under Sections 304-B, 498-A and 201 of the Indian Penal Code and sentenced to undergo life imprisonment for the offence punishable under Section 304-B of the Indian Penal Code. He has further been pleased to sentence all the appellants to undergo RI for three years under Section 498-A of the Indian Penal Code and to pay fine of rupees two thousand each and in default of payment to undergo RI for a period of three months and for the offence under Section 201 of the Indian Penal Code. He has further sentenced all the appellants to undergo RI for three years. He has further ordered that all the sentences shall run concurrently.
2. The prosecution case as per the written report submitted by Mahipat Sah in Runnisaidpur Police Station on 8.7.1990, in brief, is that Punam Devi was her daughter. She was married to Shiv Nath Prasad on 5.5.1986. At the time of marriage the informant had agreed to pay rupees twenty thousand and five tola gold in the Tilak but as his financial condition was not very good, so, he paid only rupees eleven thousand in cash by way of tilak and rupees ten thousand remained due to be paid later on. Further case is that for payment of the said amount the informant's son-in-law Shiv Nath Pd., his father Ram Bahadur Sah, his mother and the elder brother of his son-in-law were regularly putting pressure upon the informant's daughter. They started harassing and torturing the informant's daughter for realisation of the said amount. On getting information about the harassment of his daughter, the informant along with his son Bindu Sah went to the sasural of his daughter on 15.6.1990 and made inquiry from his daughter, whereupon, the informant's daughter Punam started weeping and told him that she was being assaulted by the appellant and they have given threat that if she would not bring rupees ten thousand from her naihar then she would be assaulted and would be given only one-time meal. It is further said that the informant also saw the mark of violence on the body of her daughter. Further case is that the informant tried his best to pacify his daughter and also made inquiry from his son-in-law and his brother, whereupon, both the persons gave threat that if he wanted to see his daughter alive then he should pay the remaining cash amounting to rupees ten thousand. Further case is that the informant tried his best to settle the matter and assured the in-laws of his daughter that as soon as his financial position improves he will pay the rest amount but his son-in-law did not agree and refused to take the responsibility of his daughter. Further case is that on 17.6.1990, the informant sent his son, namely, Dilip Kumar to the sasural of his daughter Punam and after his return from the sasural of his sister, he told the informant that Punam was weeping in her sasural and Shiv Nath Prasad and his mother were abusing her. Further case is that on 1.7.1990 father of the Gotani of Punam told the informant's son Bindu Sah that Punam had died. On getting this information, the informant along with his son Bindu and Dilip went to village Mauna at the sasural of Punam and on enquiry he was told that Punam died due to taking of poison.
3. On the basis of the above Fardbeyan of the informant, Runnisaidpur P.S. Case No. 24 dated 8.7.1990 under Sections 498-A, 304-B and 201/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, was instituted against the appellants and others and the investigation was handed over to Raj Bali Sah, Officer-in-charge of Runnisaidpur P.S.
4. After completing investigation the police submitted charge-sheet on the basis of which cognizance of the offence was taken and vide order dated 15.12.1990 passed by Mr. R.K. Shrivastava, Judicial Magistrate, 1st Class, Sitamarhi, the case was committed to the Court of Sessions. After commitment charge under Sections 498-A, 304-B and 201 of the Indian Penal Code was framed against the appellants who pleaded not guilty and claimed to be tried and thus the trial proceeded.
5. The defence case is that the appellants were falsely implicated in this case and the fact is that the deceased Punam Devi died due to diarrhoea and vomiting. Further defence is that the informant and his family members participated in the Sharadh Ceremony of the deceased and on that very day the informant put a proposal to appellant Ram Bahadur Sah for marriage of his son Shiv Nath Pd. (husband of the deceased) with his another daughter who had become major by that time but the appellant Ram Bahadur did not agree and refused to accept the proposal which caused annoyance to the informant and then he after much deliberation instituted this false case.
6. In support of the case, the prosecution has examined altogether ten witnesses in this case, namely P.W. 1 Hira Lal, P.W. 2 Sita Ram Sah, P.W. 3 Kishori Baitha, P.W. 4 Raja Ram Prasad, P.W. 5 Ashok Kumar, P.W. 6 Ram Babu Sah, P.W. 7 Mahipat Sah, P.W. 8 Dilip Kumar, P.W. 9 Bindu Sah and P.W. 10 Raj Bali Sharma.
7. The defence has also examined one witness, namely, Dr. Jay Binod Gupta in support of his case that the deceased had died due to diarrhoea and vomiting.
8. In addition to oral evidence the written report of the informant has been marked as Exhibit 1, endorsement of the Officer-in-charge of Exhibit 1 has been marked as Exhibit 2 and the formal FIR has been marked as Exhibit 3 on behalf of the prosecution. On behalf of the defence, the prescription of D.W. 1 Dr. Jay Binod Gupta has been marked as Exhibit A.
9. The case of prosecution is that the informant's daughter deceased Punam Devi was married with appellant Shiv Nath Pd. in the month of May, 1986. At that time, the informant had promised to give rupees twenty thousand in cash to his son-in-law by way of dowry but due to poverty he paid only rupees eleven thousands and the rest amount remained due with the informant. Further case is that the appellants were pressurising Punam Devi to bring the remaining amount of dowry from her naihar and for that they were assaulting Punam Devi and used to supply only one-time meal to her. Due to this cruelty, Punam Devi committed suicide by consuming poison.
10. Let me see whether the witnesses produced on behalf of the prosecution has supported the case of the prosecution. From the perusal of deposition of the witnesses it appears that the above case of the prosecution was not supported by P.W. 1 Hira Lal, P.W. 2 Sita Ram Sah, P.W. Kishori Baitha, P.W. 4 Raja Ram Prasad, P.W. 5 Ashok Kumar and P.W. 6 Ram Babu Sah. However, three witnesses, namely P.W. 7 Mahipat Sah (informant), P.W. 8 Dilip Kumar, and P.W. 9 Bindu Sah have supported the above case of the prosecution. Out of the above said witnesses, P.W. 7 is the informant, and P.Ws. 8 and 9 are his two sons. So far P.W. 10 is concerned, he is the IO of this case. Thus, the witnesses produced on behalf of prosecution can be divided into three categories. In category No. 1, P.Ws. 1 to 6 comes who have not supported the prosecution case. In category No. II, P.Ws. 7, 8 and 9 comes who have supported the prosecution case and in category No. III, P.W. 10 comes who is the official witness i.e., the Investigation Officer of this case.
11. The evidence of P.Ws. 1, 2, 3, 4, 5 and 6 is that the deceased Punam Devi died due to diarrhoea and vomiting. P.W. 2 has further deposed that at the time of marriage of Punam Devi, he was present and at that time no dispute had taken place on the point of payment of Tilak or dowry. He has been declared hostile by the prosecution and his attention was drawn by the learned APP towards his previous statement made before the police but he denied to have made any such statement. Likewise, P.Ws. 3, 4, 5 and 6 who are also hostile witnesses have deposed that the appellants had never made any demand of dowry from the informant and they never ill-treated the deceased or pressurised her for fulfilment of demand of dowry rather the relationship of the deceased with her husband and her in-laws was very cordial. Thus, from the evidence of P.Ws. 1, 2, 3, 4, 5 and 6, it is established that they have not supported the prosecution case, rather they have supported the defence version that the deceased Punam Devi died due to diarrhoea and vomiting and that the appellants had never made any demand of dowry from the informant and for fulfilment of demand of dowry they never ill-treated the deceased.
12. Now comes to the evidence of second category of witnesses, namely, P.Ws. 7, 8 and 9. I have stated above that P.W. 7 is the informant of this case and P.Ws. 8 and 9 are his two sons. So all the three witnesses are the close relatives of the informant and, as such, they are highly interested witnesses. The evidence of above said witnesses shows that they have fully supported the case of the prosecution. The evidence of P.W. 7 is that the deceased Punam Devi was his daughter. Her marriage was solemnised with appellant Shiv Nath Pd. of village Mauna P.S. Runnisaidpur. At the time of marriage, there was demand of Tilak and dowry but he could not pay the entire amount of dowry and rupees ten thousand remained due to be paid because of his weak financial condition. He has further deposed that after the marriage his daughter went to her sasural but after some time her in-laws started misbehaving with her. His daughter gave information about the ill-treatment meted out to her by her in-laws and then on 15.6.1990 he (P.W 7) along with his son Bindu Sah (P.W. 9) went to the sasural of his daughter. He has further deposed that when he met his daughter in her sasural, she told him that as he has not paid the remaining amount of dowry, so, her husband used to assault her and her mother-in-law used to abuse her. She also told him that if the remaining amount is not paid, she would not be provided two times' meal. P.W. 7 has further deposed that he also saw mark of violence on the body of his daughter. He has further deposed that he made inquiry from his samadhi and son-in-law regarding the assault done to his daughter, whereupon, they told that if the remaining amount was not paid to them the assault on his daughter would continue. He has further deposed that he again sent his son Dilip Kumar (P.W. 8) to the house of his son-in-law and on returning Dilip told him that Punam was weeping as she was assaulted by her in-laws. He also told him that he demanded rukhsati of Punam Devi, whereupon, father-in-law of Punam and her husband had misbehaved with him. P.W. 7 has further deposed that on 1.7.1990 he came to know that Punam died as she had consumed poison and on getting this information he along with Bindu Sah and Dilip Kumar went to the sasural of Punam Devi, and made inquiry regarding the death of Punam Devi, whereupon he was told by the villagers that Punam had consumed poison and, so, she died. P.W. 7 was also told that the accused persons had caused disappearance of the dead body of Punam. He has further deposed that he gave information about the occurrence in Runnisaidpur P.S.
13. The evidence of P.W. 7 finds corroboration from the evidence of his two sons, namely, P.W. 8 Dilip Kumar and P.W. 9 Bindu Sah. Both the witnesses have corroborated this fact that rupees ten thousand of dowry amount could not be paid to the appellants at the time of marriage of deceased Punam Devi and for that the appellants were putting pressure upon the deceased to bring that amount from her naihar and for that they were torturing and beating up the deceased. Both the witnesses have also corroborated this fact that the deceased Punam Devi had told them that she was assaulted by her husband due to on-payment of remaining amount of dowry. They have also deposed that they had seen the mark of violence on the body of the deceased Punam Devi.
14. Thus, from the evidence of P.Ws. 7, 8 and 9 the following facts have been brought on record:
(i) That in the month of May, 1986, the marriage of deceased Punam Devi was solemnised with the appellant Shiv Nath Prasad.
(ii) That at the time of marriage rupees ten thousand remained due towards dowry and for the fulfilment of demand of dowry the appellants were torturing and even beating up the deceased.
(iii) That due to torture done by her husband and her in-laws on account of non-fulfilment of remaining amount of dowry the deceased Punam Devi consumed poison and died.
15. The argument of the learned Advocate of the appellants is that the evidence which have been brought on record on behalf of the prosecution is not legal evidence and is not admissible in the eye of law. His argument is that in between the date of marriage of Punam Devi and the date of death of Punam Devi i.e., between 5th May, 1986 and 24.6.1990, there is a gap of about four years and there is absolutely no evidence on record to establish that before 15.6.1990 or one month prior to that period the deceased was subjected to torture by the appellants for non-fulfilment of demand of dowry. In support of his argument, the learned Advocate of the appellants referred para 10 of cross-examination of P.W. 7 (Mahipat Sah) in which he has deposed that prior to 15.6.1990 deceased Punam visited his house 2-3 times. He has further deposed that when third time Punam visited his house she complained about the ill-treatment meted out to her by her in-laws. He further deposed that 15-20 days prior to 15.6.1990 Punam had visited his house third time. The learned Advocate quoting the above para of P.W. 7 argued that the evidence of P.W. 7, who is none else than the informant of this case and the father of the deceased shows that only 15-20 days before 15.6.1990 deceased Punam complained about the ill-treatment meted out to her by her in-laws but before that she never made any complaint against her husband or her in-laws. He has argued that these circumstances show that the ill-treatment with deceased Punam by her husband and her in-laws was not due to non-payment of dowry but may be because of some other differences. The learned Advocate has further relied upon para 13 of the deposition of P.W. 7 in which P.W. 7 has deposed that when on the last occasion Punam had visited his house, her husband Shiv Nath Pd. himself came there and took rukhsati of Punam, who accompanied her husband willingly. He submitted that this circumstances shows that there was no differences between the deceased Punam and her husband even on last visit of Punam to her mayaka. Learned Counsel also referred para 10 of deposition of P.W. 8 in which P.W. 8 who is the own brother of deceased, has deposed that after marriage his sister mostly stayed in her sasural and during her stay he himself visited the sasural of his sister 3/4 times. He further deposed that he also stayed in the sasural of his sister on several occasion. The learned Advocate further referred para 9 of deposition of P.W. 8 and para 8 of the deposition of P.W. 9 in which both the witnesses have deposed that the in-laws of her sister or her husband had never demanded any tilak from her sister in his presence. He has also deposed that they had also not assaulted his sister in his presence. The learned Advocate of defence submitted that the above evidence of P.Ws. 7, 8 and 9 fully establishes that one month prior to 15.6.1990 there was no difference between the deceased and her husband or between the deceased and her in-laws and there was absolutely no demand of dowry prior to 15.6.1990 from the side of the appellants. He submitted that all these facts establish that the story of demand of dowry is a figment of imagination of the informant and his two sons and there is no legal evidence on record in this regard, rather, there is specific evidence of P.Ws. 8 and 9 that in their presence no dowry was ever demanded by the appellants.
16. I have carefully examined the evidence of P.Ws. 7, 8 and 9 and have come to the conclusion that about a month prior to 15.6.1990 there was no demand of dowry on behalf of the husband or in-laws of the deceased. It is admitted position that the marriage of the deceased had taken place on 5.5.1986 i.e., about four years before her death (her death occurred on 24.6.1990) but during a long gap of about more than 3 1/2 years there was no demand of dowry on behalf of the/ husband of the deceased or her in-laws which makes the prosecution version regarding the demand of dowry very doubtful. On the contrary, the evidence of PWs. 2, 3, 4, 5 and 6 establishes that either at the time of marriage or any other time there was no demand of dowry on behalf of the husband or the in-laws of the deceased Punam Devi.
17. Likewise, on the basis of the above evidence. I have come to the conclusion that there is absolutely no evidence on record to establish that the appellants used to torture the deceased due to non-fulfilment of demand of dowry. In this regard, there is specific evidence of P.Ws. 8 and 9 that the appellant never assaulted the deceased in their presence, rather the evidence of P.W- 8 shows that he used to visit the sasural of his sister Punam Devi and often used to stay there but there is nothing in his evidence that prior to 15.6.1990 his sister ever complained to him against the ill-treatment meted out to her by her husband or her in-laws due to non-fulfilment of demand of dowry. The evidence of P.W. 7 further shows that when third time i.e., 15-20 days prior to 15.6.1990 Punam visited his house and complained about the demand of dowry by her in-laws and of doing torture due to non-fulfilment of demand of dowry she happily went to her sasural when her husband came to her naihar and asked her to accompany him. There is no whisper in the evidence of either P.W. 7 or P.Ws. 8 and 9 that even on this occasion the husband of deceased Punam Devi gave any threat to the informant or any other member of his family that if the demand of dowry was not fulfilled then in that condition Punam Devi would be killed or would be tortured. This fact establishes that the allegation of doing torture to deceased Punam Devi by her husband and in-laws due to non-fulfilment of demand of dowry is imaginary one. The mere fact that on one or two occasions the husband of the deceased Punam Devi has assaulted her as deposed by P.Ws. 7, 8 and 9 that they had seen mark of violence on the body of the deceased Punam Devi but not supported by P.Ws. 1, 2, 3, 4, 5 and 6 who are all independent witnesses cannot be a proof of torture on account of non-fulfilment of demand of dowry and in this regard reliance can be placed upon the decision of the Supreme Court given in the case of Sunil Bajaj v. State of M.P., . According to the said decision, only on the basis of vague and inconsistent statement of interested witnesses being parents and brother of the deceased in the absence of evidence of any relative or neighbour of the parties about the cruelty to deceased by accused in relation to demand of dowry and in absence of the evidence that there was any demand of dowry at the time of marriage conviction under Section 304-B of the Indian Penal Code is illegal.
18. Thus, on scrutinising the evidence of P.Ws. 7, 8 and 9 coupled with the evidence of P.Ws. 2, 3, 4, 5 and 6, I have come to the conclusion that the prosecution has failed to prove that there was any demand of dowry on behalf of the husband or in-laws of deceased Punam Devi and due to non-fulfilment of demand of dowry the husband or in-laws of Punam Devi (appellants) used to torture her, rather, there is overwhelming evidence on record that there was absolutely no demand of dowry on the part of the appellants and the relationship between the deceased with the appellants were very cordial and the appellants never tortured the deceased. Thus, I find that the prosecution has failed to prove the two most important ingredients of Section 304-B of the Indian Penal Code.
19. Now, I would like to see as to how deceased Punam Devi died. According to the prosecution case, she committed suicide due to torture by the appellants but according to the defence version she died due to diarrhoea and vomiting. So far the allegation of the prosecution that the deceased Punam Devi committed suicide, I find there is no legal evidence on record. According to the evidence of P.Ws. 7, 8 and 9, they learnt about the death of deceased Punam Devi on 1.7.1990 when the father of the Gotani of Punam Devi informed the informant's son Bindu Sah that Punam Devi had died and on getting this information the informant along with his two sons P.Ws. 8 and 9 went to the sasural of Punam Devi on 2.7.1990 and on inquiry from the villagers they came to know that Punam Devi had consumed poison and due to that she died. Admittedly, P.Ws. 7, 8 and 9 are not the eye-witnesses of the occurrence and they are hearsay witnesses on this point and, so, their evidence cannot be admissible in the eye of law unless it is supported by an eye-witness of the occurrence who comes and tells the Court that he had told P.Ws. 7, 8 and 9 that Punam Devi had taken poison and due to that she died but not a single witness has come to depose that he had seen Punam Devi taking poison due to which Punam Devi had died and he had told this fact to P.Ws. 7, 8 and 9.
20. I, therefore, hold that the evidence of P.Ws. 7, 8 and 9 that on inquiry from the villagers they came to know that Punam Devi had taken poison and due to that she had died is inadmissible evidence in the eye of law. So, I hold that on the basis of the evidence of P.Ws. 7, 8 and 9 it cannot be held that Punam Devi had died due to consuming poison.
21. The defence version is that the deceased Punam Devi had died due to diarrhoea and vomiting and in this regard I find overwhelming evidence on record. In this connection, the evidence of P.W. 1 Hira Lal, P.W. 2 Sita Ram Sah, P.W. 3 Kishori Baitha, P.W. 4 Raja Ram Prasad, P.W. 5 Ashok Kumar, P.W. 6 Ram Babu Sah is relevant as all the above said witnesses have deposed in one voice that Punam Devi had died due to diarrhoea and vomiting. The above evidence of P.Ws. 1, 2, 3, 4, 5 and 6 finds corroboration from the evidence of D.W. 1 Dr. Jay Binod Gupta, who has deposed that on 23.6.1990 Punam Devi was brought to his clinic and on examining her he had found that Punam Devi was suffering from diarrhoea and vomiting. He has deposed that he found that the patient was suffering from Gastro enteritis and due to that she was vomiting and suffering from loose motion. He has further deposed that he gave her saline water and prescribed some medicine but her condition did not improve and then he referred the patient to Muzaffarpur Medical College and Hospital. He has further deposed that after examining the patient (Punam Devi) he had issued the prescription (Exhibit-A). D.W. 1 Dr: Jay Binod Gupta appears to be an independent witness not related to the appellants and, as such, there is no reasonable ground to believe that he would have falsely deposed in favour of the appellants and, so, on the basis of his evidence it can be safely held that the deceased Punam Devi had been brought to the clinic of D.W. 1 one day prior to her death for the treatment of Gastro enteritis i.e., diarrhoea and vomiting and not for the treatment of consuming poison. The evidence of P.Ws. 1, 2, 3, 4, 5 and 6 also supports the evidence of D.W. 1 that deceased Punam Devi died due to diarrhoea and vomiting, and, therefore, on the basis of the evidence of D.W. 1 coupled with the evidence of P.Ws. 1, 2, 3, 4, 5 and 6 it can be safely held that Punam Devi had died due to diarrhoea and vomiting and not due to consuming poison. I, therefore, hold that the prosecution has miserably failed to prove that Punam Devi had died due to consuming poison on account of torture done by the appellants for non-fulfilment of demand of dowry.
22. One more aspect which makes the prosecution case very doubtful is that according to the prosecution version the informant had got the knowledge of death of Punam Devi on 1.7.1990 and then on the next day he along with his two sons (P.Ws. 8 and 9) went to the sasural of Punam Devi. According to the evidence of P.Ws. 7, 8 and 9, on 2.7.1990 they all came to know that Punam Devi died due to consuming poison because of the fact that the appellants used to torture her for non-fulfilment of demand of dowry but even then the informant did not file any case any where prior to 8.7.1990. This shows that there is a delay of about seven days in lodging of the FIR and for this delay the informant has simply said that he fell in grief and started thinking. In my view, it is not a satisfactory explanation for the delay in lodging the case. The defence has suggested to P.W. 7 that as on the day of Sharadh he had put a proposal to appellant Ram Bahadur Sah for the second marriage of Shiv Nath Prasad with his youngest daughter but appellant Ram Bahadur Sah refused to agree with the proposal and then the informant lodged this false case. In the background of this case coupled with the delay in lodging of the FIR the defence taken by the appellants appears to be more probable and acceptable.
23. On the basis of the above discussions and the materials available on record, I have come to the conclusion that the prosecution has failed to prove the charges levelled against the appellants under Sections 498-A, 304-B and 201/34 of the Indian Penal Code against the appellants and, as such, I hold that the conviction of the appellants under Sections 498-A, 304-B and 201 of the Indian Penal Code is bad in law and must be set aside.
24. In the result, this Criminal appeal is allowed and order of conviction and sentence passed against the appellants under Sections 498-A, 304-B and 201/34 of the Indian Penal Code is hereby set aside and the appellants are acquitted of the charge under Sections 498-A, 304-B and 201/34 of the Indian Penal Code.
25. Appellant Shiv Nath Sah is in jail custody and, as such, he is ordered to be set at liberty forthwith if not wanted in any other case. Rest appellants are on bail and, as such, they are discharged from the liabilities of their respective bail bonds.
Indu Prabha Singh, J.
26. I agree.