Patna High Court
Rameshwar Mahto & Ors vs State Of Bihar on 26 July, 2011
Author: Dharnidhar Jha
Bench: Dharnidhar Jha
Criminal Appeal (SJ) No.1037 of 2006
Against the judgment of conviction dated
30.10.2006and order of sentence dated 31.10.2006 passed by Additional Sessions Judge, Fast Track Court No.I, Gopalganj in Sessions Trial No.392 of 2004/180 of 2006 arising out of Barauli P.S.Case No.79 of 2004, G.R.Case No.869 of 2004.
1. RAMESHWAR MAHTO,
2. ALAKH MAHTO &
3. LALJHARI DEVI.... .... Appellants Versus State Of Bihar.... .... Respondent :
For the Appellants : Sri R.C.Singh & Sri Jitendra Kumar Singh, Advocates.
For the Respondent : Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against judgment of conviction dated 30.10.2006 passed by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court No.I, Gopalganj in Sessions Trial No.392 of 2004 by which the two appellants, Rameshwar Mahto and Laljhari Devi, besides the deceased appellant Alakh Mahto whose appeal has abated on account of his death, were convicted of offence under Section 304B/34 IPC and were directed by the 2 order of sentence dated 31.10.2006 to suffer rigorous imprisonment for ten years each.
2. The prosecution case is based on the fardbeyan of P.W.6 Chaukidar Prabhunath Singh who stated that while he was sitting at his house after having attended to the call of nature early in the morning on 06.06.2004, he picked up the information from his villagers that the deceased Minta Devi had hanged herself and had thereby committed suicide. The informant came to the house of the appellants and found that the doors have been locked from inside and as such he went into the backyard of the house to peep through the window to find that the lady was hanging with a rope tied to a bamboo beam of the roof of the house. Inmates of the house had run away from there.
3. P.W.6 stated that the deceased Minta Devi had been married to appellant Rameshwar Mahto three years prior to the occurrence and was being ill-treated by her husband who used to beat her up also. On account of cruelty heaped upon her the deceased committed suicide.
4. Initially, the FIR of the case, Ext-4 was drawn up for an offence under Section 306 IPC, but it appears from the record that after 3 obtaining an order from the Chief Judicial Magistrate, Gopalganj on 11.06.2004, Section 304B IPC was added up to the FIR. The investigation of the case was entrusted to P.W.8 A.S.I. Rambinod Mishra who stated that after recording the fardbeyan of P.W.6, the officer-in-charge of the police station drew up the FIR and accordingly entrusted the investigation to him. P.W.8 proceeded to the place of occurrence and inspected it and found that the house in which the occurrence had taken place was consisting of six rooms and a courtyard in which a tube-well had also been sank. The room which was in occupation of the deceased was facing north and two windows had been fitted to its walls, one being in the eastern wall, the other window was on the southern side of the room. The investigating officer found the dead body hanging with a piece of rope tied to the bamboo-beam of the room. The other articles, like, an earthen grainery, a wooden chauki were also found there.
P.W.8 held inquest report upon the dead body of Minta Devi and prepared the report Ext-3 and, thereafter, sent the dead body for postmortem examination.
5. P.W.7 Dr.A.K.Kashyap had held 4 postmortem examination on the dead body of Minta Devi and found that there was a ligature mark 1 ½" cm broad present all around the neck except back of neck above hyoid. The eyes were closed, the tongue protruded, small amount of vomitus substance present in mouth. On dissection of the deceased, P.W.7 found fracture and dislocation present at atlanto axial joint, as a result of which the death had occurred on account of the deceased being asphyxiated due to ligature.
6. Witnesses supported the story of ill- treatment of deceased by the appellants and that resulted in submission of the final form sending up the appellants for trial.
7. The defence of the appellants was that the deceased had committed suicide and they had never ill-treated or tortured her.
8. During the course of the trial eight witnesses were examined who were mostly closely related persons from her paternal side. P.W.1 Bachhi Devi was the wife of one of the brothers of the deceased whereas P.W.2 Bachha Mahto was her brother. Two other Bhabhis of the deceased were examined as P.Ws.3 and 4 whereas the other brother of the deceased Jaglal Mahto, examined as P.W.5, did not support the prosecution story and 5 was declared hostile. P.W.6 the informant Chaukidhar also came to support his story. P.W.7, as just pointed out, was the doctor who held postmortem examination on the dead body and prepared the postmortem examination report whereas P.W.8 A.S.I. Rambinod Mishra had investigated the case.
9. On consideration of the evidence of the prosecution, the learned trial Judge passed the impugned judgment.
10. While supporting the appeal, it was contended by Sri R.C.Singh, the learned counsel appearing on behalf of the appellants that it might be a case of impulsive commission of suicide on account of reasons which could not constitute an offence either under Section 304B or under Section 306 IPC. The learned counsel took me through the evidence of the witnesses to point out that it was consistently available to the learned trial Judge from the evidence of the witnesses that the deceased was peeved and aggrieved by the acts of the appellants specially that of Laljhari Devi as the utensils which had been presented to her by her parents had been given by appellants Laljhari Devi and Alakh Mahto to their daughter at the occasion of her marriage 6 and the deceased had repeatedly lodged protest. The evidence indicated that the appellants had attempted to persuade her to bear with it, but the evidence also indicated the probability that the deceased might have been assaulted and as such there were a couple of Panchayaties held. The evidence indicated, it was contended, that there was an offer from the bridal-side that the appellant Rameshwar Mahto quit the wedlock so that the lady Minta Devi could marry another man which was stoutly opposed by the appellants so much so that he threatened the family members of the deceased to be shot dead. It was contended that considering these circumstances there could be a probability indicating that the deceased had gone into depression and might have committed suicide.
11. Commission of suicide by a lady may also be covered by the term 'death' which might have occurred within the seven years of the statutory period indicated by Section 304B IPC because that death could never be assumed to be natural and has always to be held to be under circumstances not natural. Therefore, if a lady dies under circumstances which are not natural it could be a 'death' which could be covered by that 7 term which is spoken of by Section 304B IPC. But that could never be the end of the matter. Other important ingredients constituting the offence under Section 304B IPC, like that the lady was treated with cruelty and that cruelty was accruing out of the greed of the accused persons due to which they were demanding dowry. If the ingredients of deceased being treated with cruelty as also the other ingredient of placing the demand for dowry and on that account the death occurring unnaturally are all established by acceptable admissible evidence then only the offence under Section 304B IPC could be constituted. Even if there could be a case in which the ingredients of the offence which are fully established by facts brought on record, the defence could have a very probable case indicating that in spite of the proof of the facts by the prosecution the balance of probability was tilting towards the defence version and in that eventuality, the well known principle of criminal jurisprudence shall have to be affected by which the probability of the defence version could be held available to the court which might be shaking the foundation of the prosecution case whereby entitling the 8 accused to an order of acquittal due to the reasonable doubt arising out of the probability of the defence version. In that case the statutory presumption which might be available to the court under Section 113B of the Evidence Act may not be raised or if raised the very tilt of the balance of probability in favour of the defence shall dislodge the inference to be drawn statutorily and the court shall have to acquit the accused by giving him benefit of doubt.
12. Evidence of P.W.1 to P.W.4 all close family members of the deceased being brothers and wives of the brothers of the deceased indicate that the marriage was happily performed. There was no acrimony between the parties on account of any demand or non-fulfilment of the demand. The lady, as may appear from the evidence of P.W.1 from the cross-examination on 25.05.2010, was living very happily in her matrimonial house and had never complained of any ill-treatment when she had come to visit her family members in her parents' house. She was very much willing to return to her matrimonial home to join her husband. She, indeed, appears informing P.W.1 and others that she was being respected and looked after well by her inlaws. In spite of these 9 pleasing circumstances which the lady was enjoying in her matrimonial house, there was one disturbing instance in her matrimonial life which has been consistently pointed out by the witnesses examined by the prosecution. It has been narrated by all the witnesses that she had got quite some valuable utensils from her parents. Those utensils were probably given by the appellants to their daughter at the time of her marriage and that was protested by the lady. In spite of the marriage of the daughter of the appellants 3 and 3 being solemnized and she having been sent off to her matrimonial house, the deceased Minta Devi does not appear forgetting the act of transfer from her of utensils to the daughter of appellants Alakh Mahto and Laljhari Devi. She was, time and again, racking up the issues with the appellant Laljhari Devi who was very polite in attempting to convince her that now it had happened, she should forget and learn living with the situation obtained, but what I find coming out of the evidence is that the probability was that the lady was very insistent upon the issue and she was seriously carrying it into her hearts. May be that it had become a matter of annoyance to the 10 appellants as a result of which the lady might often have been assaulted by her husband. Evidence of witnesses may point out that due to the ill-treatment and on account of the assaul of the deceased, a couple of Panchayaties had also been convened and as may be told by P.Ws.1, 2 and others, there was serious offer from the bridal side to appellant Rameshwar Mahto to quit the wedlock. The witnesses also said that the appellant Rameshwar Mahto was irritated on the offer to quit the wedlock so that the family members, like, the brother and others of the deceased could have got her married to another man so much so that he was threatening them to be shot dead. Thus, what appears from the evidence is that the lady was greatly discomforted and was also feeling uneasy on account of continuing in the wedlock with appellant Rameshwar Mahto on account of the two instances.
13. I have just discussed that the human nature is to either get the wishes fulfilled or in case the wishes are not getting fulfilled then we often got depressed. Ladies are especially known to be very possessive of their belongings. They hold their belongings to core of their hears. It could be very painful for them if they 11 are forced to part with their belongings specially those which are given to them as presents by their parents. A situation of parting with the belongings and further circumstance of ignoring her objection and earning the wrath of the family members due to lodging legitimate protest could have deeply depressed her and as such it might be a surprising circumstance that finding herself not getting out of the wedlock and the surrounding she had been forced to live in the circumstances prevailing in her life, she might have chosen to get away from the unhappy life.
14. I have already pointed out that even in a case which is proved by the prosecution to the hilt if the defence succeeded in probablizing not most of the facts of its defence but a few of it, then it has succeeded in creating a doubt in the prosecution story which entitles the accused to the benefit of it. This proposition was laid down in K.M.Nanavati Vrs. State of Maharashtra, AIR 1962 SC 605 and which has also been held by me by placing reliance on the above case in Vivekanand Mishra Vrs. State of Bihar 2008(2)PLJR
765. As a result of the lack of evidence on the proof of the ingredients of demand for dowry and 12 treatment of the lady with cruelty. This court feels that the offence under Section 304B IPC was not established to the hilt.
15. It was contended by Sri Ajay Mishra, learned A.P.P. for the State that in spite of the offence under Section 304B not being established by the prosecution, the appellants could be held responsible for creating circumstances around the deceased so as to forcing her to end her life by suicide and as such this court should convert their conviction from Section 304B to Section 306 IPC. I have discussed in detail the evidence and the circumstances which arise out of it. I have also discussed the principles of criminal justice and specially that on which the principle of giving benefit of doubt is fundamentally based upon. The argument of Sri Mishra that circumstances were there, appear really weighty and it could not be easy for any court to discard them, but once the balance of probability appears tilting towards the defence theory that on account of finding herself under difficult circumstances, specially, due to not getting out of the wed-lock to which she was uncomfortably tied with Rameshwar Mahto, the lady might have chosen to end her life. This court finds the 13 probabilities tilted in favour of the defence and on that account the court finds it unable to uphold the submissions of Sri Mishra.
16. What this court finds is that there was lack of evidence and the charges appear disproved. The defence version was more probable and on that account the appellants deserved to be acquitted after being extended the benefit of doubt. The appeal is allowed. The conviction of the appellants under Section 304B/34 IPC and the sentences passed upon each of them is hereby set aside. Appellant Laljhari Devi is on bail. She shall stand discharged from the liabilities of her bond. So far as appellant, Rameshwar Mahto is concerned, he is in custody. He shall be released forthwith, if not wanted in any other case.
( Dharnidhar Jha,J.) Patna High Court, Dated, the 26th day of July, 2011, Brajesh Kumar/AFR