Patna High Court
Ram Chander Sah And Anr. vs State Of Bihar on 7 October, 2005
Equivalent citations: II(2006)DMC102
Author: M.L. Visa
Bench: M.L. Visa
JUDGMENT M.L. Visa, J.
1. This appeal is directed against the judgment dated 3.4.1992 and order dated 7.4.1992 passed by the Sessions Judge, Darbhanga, in Sessions Trial No. 101 of 1989 convicting and sentencing the appellants to undergo RI for 10 years each under Section 304B, RI for 7 years each under Section 201 of the Indian Penal Code and RI for 6 months each under Section 4 of Dowry Prohibition Act. All the sentences have, however, been ordered to run concurrently.
2. The brief facts giving rise to this appeal that on 9.7.1987 at 6.00 p.m. informant Shiv Prasad Sah (PW 9) went to Nanpur Police Station and got his fardbeyan recorded by SI Tarkeshwar Sharon (PW 10) stating therein that his sister deceased Prem Sheela was married about 4 years before to appellant Ram Chandra Sah. After marriage, appellants started torturing the informant and his family members on account of demand of dowry and for not getting dowry they sent Prem Sheela to her 'naiher' and informed that although they had received wrist watch and radio at the time of marriage but had not received cycle and one tola of gold and unless those articles were given to them they would not come for taking Prem Sheela to her 'sasural'. About one and half years thereafter, Bilayati Sah, father of appellant Ram Chandra Sah came to the house of the informant and made demand for cycle and gold. Father of informant fulfilled the demand of cycle making the promise to fulfil the demand of gold in future after making arrangement of money. Bilayati Sah took Prem Sheela to his house. 6-7 days prior to giving fardbeyan by informant before police, he received information from the nephew of Bilayati Sah that his sister Prem Sheela had died on 22.6.1987. Informant then along with Birendra Kumar Pandy (PW 8), Bihari Sah (not examined) and Awadhesh Sah (PW 7) went to the village of sasural of his sister where he met Bilayati Sah and when he enquired about his sister Bilayati Sah told that she died of vomiting and dysentery. When informant asked from Bilayati Sah why information of this fact was not given to him, Bilayati Sah could not give any satisfactory reply. When the informant moved in the village he came to know that because of non-fulfilment of demand of gold, Bilayati Sah, appellants Ram Chandra Sah and Jarlahia Devi as also other family members committed the murder of Prem Sheela and thereafter cremated her dead body. Informant further stated that one week prior to occurrence Bilayati Sah had sent information to the house of informant that in case, demand of gold was not fulfilled Prem Sheela would be killed.
3. On the basis of fardbeyan of informant formal FIR under Sections 302/ 201, IPC and Section 3/4 of Dowry Prohibition Act was drawn against Bilayati Sah, Ram Chandra Sah, Chhedi Sah, Reban Sah, Bechan Sah and Jarlahia Devi.
4. Police after investigation submitted charge-sheet under Sections 302/34, 304-B, 201, IPC and Section 4 of Dowry Prohibition Act. Thereafter cognizance of the case was taken and the case was committed to the Court of Session where charges under Sections 302/34,201, 304-B, IPC and Section 4 of Dowry Prohibition Act were framed against the appellants and Chhedi Sah, Reban Sah and Bechan Sah. Although charge-sheet was submitted against Bilayati Sah, father of appellant Ram Chandra Sah and husband of appellant Jarlahia Devi but he died before the case was taken up for hearing on charge matter.
5. After trial the Court below found both the appellants guilty under Sections 304-B, 201, IPC and Section 4 of Dowry Prohibition Act and convicted and sentenced them as indicated above. The appellants, however, were not found guilty under Section 302, IPC.
Co-accused Chhedi Sah, Bechan Sah and Reban Sah who faced trial with the appellants were held not guilty and were acquitted.
6. Altogether 11 witnesses on behalf of the prosecution and 1 witness on behalf of the defence were examined in this case. Shiv Prasad Sah (PW 9) is the informant. Tarkeshwar Sharan (PW 10) is the 10. Awadh Kishore Lai (PW 11) is a formal witness who has proved sanction order (Ext. 4) of District Magistrate granting sanction for prosecution under Section 4 of Dowry Prohibition Act. Sanichar Sah (PW 1) has stated that deceased who was daughter-in-law of Bilayati Sah died of vomiting and dysentery and in cross-examination he has said that there was good relation between Bilayati Sah and parents of deceased. Prabhu Sah (PW 2), Maheshwar Prasad Singh (PW 3), Ram Sah (PW 4), Bindeshwar Sah (PW 5) and Pitamber Sah (PW 6) are tendered witnesses and they all in cross-examination have said that deceased died of vomiting and dysentery. Out of these witnesses Maheshwar Prasad Singh (PW 3) is the homoeopathic practitioner and in course of his examination he has said that he had gone to see the deceased and had seen her dead because of vomiting and dysentery. Awadhesh Sah (PW 7) and Birendra Kumar Pandey (PW 8) are witnesses who had accompanied the informant to the village of 'sasural' of deceased after hearing the news of death of deceased. Awadhesh Sah (PW 7) has said that on Monday he came to know that deceased had died and thereafter he went to the house of Bilayati Sah where he met Bilayati Sah and his son appellant Ram Chandra Sah and on being asked how deceased died they said that she died of vomiting and dysentery and when he and informant enquired from them that why information of her death was not sent to them, they did not get any reply. He has further said that Bilayati Sah had made demand for radio, wrist watch and one tola of gold and although radio and wrist watch were given but gold had remained to be given. In his examination-in-chief he has not even whispered about the torture or any ill-treatment to the deceased by the members of her matrimonial house. Tarkeshwar Sharan (PW 10), IO in his evidence has stated that this witness had not given statement before him that informant had given radio and wrist watch and gold had remained to be given. In para 2 of his evidence PW 7 has said that he came to know about the occurrence from the informant. Birendra Kumar Pandey (PW 8) has said that deceased was known to her and deceased was murdered. He has further said that members of the family of 'sasural' of deceased used to demand dowry and they used to complain that they had not received gold and cycle from the father of the deceased and Bilayati Sah had put a condition that unless his demands were fulfilled he would not take back deceased from the house of her parents to his house. He has further said that when cycle was given to him with promise of giving gold in future, deceased was then went to her 'sasural' but about 10-20 days thereafter she died and after death he came to know that she had been killed and then he along with informant and PW 7 went to 'sasural' of deceased where he met appellant Ram Chandra Sah who disclosed that deceased died of vomiting and dysentery and when he inquired from him that why information was not given to her parent he did not get any reply. In para 8 of his cross-examination he has said that in the village of appellants one boy came and informed him that deceased had been killed. At the same time, he admits that before police he had not made any such statement.
7. Shiv Prasad Sah (PW 9), the informant, is the brother of deceased. He has said that deceased was married about 4 years prior to occurrence to appellant Ram Chandra Sah and his father had given a wrist watch and a radio at the time of marriage and demand for cycle and one tola gold could not be fulfilled and when his sister went to her 'sasurul' she was being tortured on account of non-fulfilment of demand of aforesaid' articles and after a month his sister was brought to his house by her 'sasural' people who put the condition that they would take back the deceased with them only on fulfilment of their demands. He has further said that one and half year thereafter a cycle was given and about gold his father made promise that lie would make arrangement of giving gold in future and thereafter Bilayati Sah took his sister to his house and some days thereafter from the nephew of Bilayati Sah he came to know that his sister had died. He then along with PWs 7 and 8 went to the 'sasural' of his sister where he met Bilayati Sah and when he inquired about his sister Bilayati Sah told him that she died of vomiting and dysentery and when he inquired why information was not given to him he did not get any reply. He has further said that when he moved in the village for collecting more information he came to know that because of non-fulfilment of demand of gold made by appellants his sister had been killed by them and Chhedi Sah, Reban Sah and Bilayati Sah by pressing her neck and appellants and their aforesaid companions cremated the dead body. He has further said that one week prior to occurrence Bilayati Sah sent information that if his demand was not fulfilled deceased would be killed. In para 3 of his evidence informant has said that after receipt of information of death of his sister he went to the village of her 'sasural' on the same day and returned back to his village at about 8-9 p.m. and he consulted his father who advised him to ascertain the real fact and thereafter he took 6-7 days for collecting the information. He clearly stated that he made inquiry from 15-20 persons but he could not give name of any one of them. Admittedly, he is not an eye-witness on the point of pressing the neck of deceased by appellants and their companions. In his evidence, he has simply stated that he came to know in village that his sister had been killed by strangulation. As stated above, he has not named anybody who put claim as eye-witness on the point of strangulation. There is nothing in his evidence to suggest the cause of death of deceased.
8. The Court below in its judgment has not found the appellants guilty under Section 302, IPC as there is no evidence against them of committing murder of deceased but still Court below has held them guilty under Sections 304B and 201, IPC and Section 4 of Dowry Prohibition Act because appellants happen to be husband and mother-in-law of the deceased. So far Section 304B, IPC is concerned, for holding a person guilty under this section it must be proved that death of deceased is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.
9. In the present case, witnesses 1 to 6, all have stated that deceased died of vomiting and dysentery. They are witnesses produced by the prosecution. On the point of these witnesses the Court below has observed that learned APP in this case has not acted properly in examining and tendering witnesses in casual manner and if it was so that witnesses did not make any statement in support of prosecution story in their statements before police they should not have been cited as witnesses for the prosecution and if they were produced to witness box and failed to support the prosecution story they should have been declared hostile and should have been cross-examined by prosecution to discredit them but instead of doing so, prosecution has taken its stand in casual manner and PWs 2, 3, 4, 5 and 6 have been tendered and in their cross-examination they have supported the defence version. It is further observed that because these witnesses belonged to the village of accused so they made statement favourable to accused in this case. These observations of Court below are not according to the settled principles of law. If charge-sheet witnesses are examined by prosecution their evidence has to be considered according to law. If they do not support the case of prosecution naturally the benefit will go to accused. Besides the evidence of PWs 1 to 6 it is the own case of informant and PWs 7 and 8 that when they went to 'sasural' of deceased they were told by family members of her 'sasural' that she died of vomiting and dysentery. There is nothing on record to show that deceased died of burn injuries or in circumstances which were not normal. In view of this fact the conviction of appellants under Section 304B cannot be upheld. About conviction of appellants under Section 201, IPC I find that Court below in para 16 of its judgment has observed that evidence regarding causing disappearance of the evidence of murder by cremation of dead body is also not positive in nature and, therefore, accused Chhedi Sah, Reban Sah and Bechan Sah cannot be held guilty under Section 201, IPC but for the present appellants it has observed that they will be deemed to have caused disappearance of evidence of murder because cremation is admitted. There is nothing on record to show that present appellants took part in the cremation of dead body of deceased because Court below itself has not found the allegation of murder of deceased by appellants proved. So far conviction under Section 4 of Dowry Prohibition Act, except the evidence of informant, I find that no other witness has stated, that because of non-fulfilment of demand of dowry deceased was put to toiture.
10. Considering the entire evidence on record, I find that prosecution has not been able to prove its case against the appellants beyond all reasonable doubts and judgment and order of conviction and sentence against the appellants cannot be upheld.
11. In the result, this appeal is allowed, judgment and order of Court below convicting and sentencing the appellants is hereby set aside and appellants who are on bail are discharged from the liability of their bail bonds.