Patna High Court
Kishleshwar Upadhyay & Ors vs State Of Bihar on 21 December, 2010
Author: C.M.Prasad
Bench: Chandra Mohan Prasad, C.M.Prasad
CRIMINAL APPEAL No.181 OF 2005
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Against the judgment dated 26th February 2005 & the order
dated 28.2.2005 passed by the Addl. Sessions Judge
cum-F.T.C.III, Rohtas at Sasaram in Sessions Case
No. 266 of 1996, Trial No. 451 of 2003.
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1. Kishleshwar Upadhyay.
2.Arun Upadhyay, Both s/o Ramakant Upadhyay.
3.Lillabati Devi wife of Ramakant Upadhyay.
4.Ramakant Upadhyay s/o Deo Nath Upadhyay.
All residents of village Baishpura P.S.Karhagar (Sidhi)
District Rohtas. -------------------------Appellant.
Versus
The State Of Bihar------------------------------- Respondent.
For the appellants : Mr. Krishna Prasad Singh, Sr. Advocate.
Mr. Mithilesh Kumar Singh, Adv.
For the State : Mr. Ajay Mishra, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. C.M.Prasad,J This appeal is directed against the judgment of conviction dated 26th February 2005 and order of sentence dated 28th February 2005 of the Additional Sessions Judge cum-F.T.C.III, Rohtas at Sasaram passed in Sessions Trial No. 266 of 1996/451 of 2003, whereby the appellants have been convicted u/s 304(B) and 201 IPC and respectively sentenced to undergo R.I. for 10 years and R.I. for 2 years.
2. Deceased Meera Devi was sister of informant Kanhaiya Pandey (P.W.3). The prosecution commenced with the fard-beyan of informant Kanhaiya 2 Pandey which was recorded on 27th December 1994 at 4:00 P.M. at Sirhi Police Out Post by S.I. B.P. Yadav (P.W.2), whose evidence has been subsequently recorded u/s 391 Cr.P.C. under the direction of this Court.
3. The informant alleged in his fard-beyan (Ext-1 & 2) that he had married his sister (deceased) aged about 18 years, about 4 years ago to appellant Kishleshwar Upadhyay and that she had gone to her matrimonial home (Sasural) in the month of December 1993, after performance of Gauna rituals and thereafter she was living there. He described the cash money, ornaments and one buffalo as given in gift at the time of marriage, but he alleged that after the marriage, the Sasural people of the deceased started demanding one motor-cycle and a colour T.V. It was also alleged that whenever he (informant) and his family members used to go to deceased's Sasural for meeting her and bringing her to her Maika, her (deceased's) mother-in-law, father- in-law, husband and Dewar did not allow them to meet her (deceased) and that they also used to abuse them. The informant further alleged in his fard-beyan that he learnt from his co-villagers that the Sasural people of the 3 deceased used to torture her and did not provide her proper food and also used to beat her. He also alleged that he learnt through rumor that on 17th December 1994, the Sasural people of the deceased caused the death of his sister (deceased) by way of torturing and that they also clandestinely cremated the dead body and that any information about the death and cremation was not given to deceased's Maika family. It was also alleged in his fard-beyan that after learning about the occurrence, the informant along with his family members went to deceased's Sasural and there they learnt form the co- villagers that the appellants had tortured and killed the deceased due to non-fulfilment of the demand of dowry. The appellants had pleaded not guilty of the charges and their defence was that the deceased had died a natural death of the ailment of tuberculosis.
4. Altogether four witnesses were examined during trial. Subsequently, under orders of this Court, the two I.Os, namely, Vinay Kumar Singh, S.I. and Vinod Prasad Yadav, S.I. were examined. Out of the witnesses, P.W.3 Kanhaiya Pandey is the informant himself, P.W.1 Santosh Kumar Pandey and P.W.2 4 Tileshwari Devi are respectively the brother and the mother of the deceased. P.W.4 Mukesh Kumar Sinha is a formal witness who proved the writings on the fard- beyan marked Ext-2 and the writings of the I.O. from Para-1 to 73 of the case diary which was proved as Ext-
3. Vinod Kumar Yadav, S.I. (again numbered as P.W.2) was the I.O. of the case. Vinay Kumar Singh (again numbered as P.W.1) was the formal I.O. who had submitted the charge-sheet on obtaining permission from senior Officer.
5.The appellant-accused had examined 2 defence witnesses. D.W.1 was Kamla Devi and D.W.2 was Bhagwan Dubey. D.W.1 deposed that he was educated upto Class-VI and that she had worked as a Nurse in the Nursing Home of Dr. Vinay Kumar Singh from January 1994 to October 1994, though she admitted that she had not taken any training for nursing. She proved one prescription in the writings of Dr. Vinay Kumar Singh which was marked Ext-A. She also proved the writings on the medical certificate by that Doctor which was proved as Ext-A/1, though she stated that the documents were not written in her presence. This witness 5 simply proved the writings on the medical prescription and the certificate but did not know about the nature of ailment nor did she say that she had ever personally nursed the deceased during any treatment. The perusal of Ext-A and Ext-A/1 shows mentioning the name of the patient as Smt. Meera Devi and it further mentions treatment about the deceased's pulmonary tuberculosis and the period of treatment is mentioned as 10th December 1994 to 16th December 1994. The doctor who is said to have treated the deceased of the ailment has not been examined by the defence and any reason has not been assigned for his non-examination. D.W.2 Bhagwan Dubey has deposed that the deceased has died of disease but has not disclosed the nature of ailment. This witness has also stated that the husband, mother-in-law, father- in-law and Dewar of the deceased were getting her treated of the disease but he was unable to say as to when and on what date they had taken her for the first time or the last time for treatment. Thus this witness was not himself concerned with the treatment of the deceased nor he has any specific knowledge about the nature of ailment nor the specific kind or type of treatment given 6 to the deceased and he simply came to depose that the deceased was being got treated by the appellants.
6.The informant (P.W.3) deposed that his younger sister Meera (deceased) was married to Kishleshwar Upadhyay (appellant) in the year 1991. He stated about the cash, ornament and buffalo which were presented at the time of marriage. He further deposed that the Gauna ritual was done in the year 1993 and the deceased had gone to her Sasural. He further deposed that at the time of Gauna, the appellants had demanded a motor-cycle and colour T.V. but he could not be able to fulfil the demand. He further deposed at Para-2 & 12 of his evidence that whenever he and his family members went to deceased's Sasural, they were allowed to meet her, but after much difficulty and on the intervention of co-villagers. At Para-10 he further deposed that whenever he went to deceased's Sasural, the appellant- accused persons asked them to go away and that they could stay there only for 2 to 4 hours, though he admitted that during that period they were provided food and water. At Para-2 of his evidence, he also deposed that the deceased had told him that in case the articles demanded 7 in dowry is not given, she might be killed. This witness also deposed that the appellants-accused persons used to beat the deceased and stop her food but any specific instance of such act has not been mentioned by this witness. He also deposed at Para-2 & 7 that he had learnt about the occurrence, i.e. the causing of dowry death of the deceased from Baidya Nath Tiwary and Madan Dubey, but these two persons have not been examined. At Para-12 of deposition of this witness he stated that his father was suffering of paralysis.
7. P.W.1 Santosh Kumar Pandey is the brother of the deceased. He deposed that the deceased was married to Kishleshwar Upadhyay (appellant) in the year 1991 and after performing Gauna rituals, she went to her Sasural in village Biashpura on 10th December 1993. He also deposed that after the marriage, appellants started demanding one motor-cycle and a colour T.V. but his family was unable to fulfil the demand. He further deposed at Para-2 that whenever he went to deceased's Sasural, the appellants abused him and that he could meet the deceased but at the intervention of the co- villagers. He also deposed that his sister (deceased) had 8 told him that if the demand of motor-cycle and colour T.V. is not fulfilled, deceased's Sasural people may kill her. He also deposed at Para-3 that his relative had informed him that the appellants had killed the deceased. He further deposed at Para-4 that on receiving information, he along with his brother (P.W.3) and co- villagers Kamlesh Pandey, Narsingh Pandey and others had gone to deceased's Sasural but any family members of the Sasural was not found there and he had learnt from the co-villagers Mudrika Singh, Chunchun Dubey and others that the deceased's Sasural people had killed her and had cremated her dead body. This witness says to have learnt it from the said co-villagers, but none of them has been examined to say those facts.
8. P.W.2 Tileshwari Devi is the mother of the deceased whose evidence was recorded on 12th November 2002. She deposed that the deceased was married to Kishleshwar Upadhyay (appellant) 11 years ago and after 2 ½ years of the marriage, Gauna was performed and the deceased had gone to her Sasural. She further deposed at Para-2 that at the time of marriage appellant Kishleshwar Upadhyay and the other 9 appellants had demanded a colour T.V. and motor-cycle, but due to poverty she could not be able to fulfil the demand. She also deposed that whenever her sons Kanhaiya (P.W.3), Santosh (P.W.1) and Sunil (not examined) went to meet the deceased, the Sasural people of the deceased did not allow them to meet her. She also continued to depose at Para-2 & 5 that the appellants used to torture the deceased due to non- fulfilment of demand of dowry and that they used to drive her away from the Sasural house, but despite that she remained there. She also deposed at Para-3 that she had learnt from her sister's son Baidya Nath Tiwary that the appellants had caused the dowry death of her daughter (deceased) and had cremated the dead body. Baidya Nath Tiwary has not been examined by the prosecution. She also deposed that her sons along with 4- 5 villagers had gone to the deceased's Sasural and they had learnt there that the appellants had killed the deceased and they had disposed of the dead body. At Para-5 of her evidence, she has denied to have stated before the I.O. that the residents of village Baishpura had informed her that Meera had died of pain in 10 abdomen.
9. The I.O. Vinod Kumar Yadav (numbered as P.W.2 again) had conducted the investigation into the case. He had recorded the fard-beyan of the informant. He also deposed to have recorded the statement of the informant (P.W.4) as well as witnesses Santosh Kumar Pandey (P.W.1) and Tileshwari Devi (P.W.2). He visited the Sasural house of the deceased and had inspected the room and had found Chauki, Khatia and Palang in the room in which the deceased was living but besides this, he did not find any other thing noticeable there. At Para- 6 of his evidence, he stated that the co-villagers of deceased's Sasural village had told him that the deceased was being treated of the ailment of tuberculosis but name of any co-villager has not been disclosed and he has also stated that he did not contact the doctor in order to verify about the information about the treatment of the deceased. He further deposed at Para-7 that through registered post he had received photo copy of the prescription and the certificate of Dr. Vijay Kumar Singh regarding treatment of the deceased, but he had not done anything for verifying the truth of the facts mentioned in 11 the prescription and the certificate. At Para-10, 12 & 14 of his evidence, he stated that Santosh Kumar Pandey (P.W.1) and Tileshwari Devi (P.W.2) had stated before him that on 18th December 1994 residents of village Baishpura had told them that the deceased had died of sudden pain in abdomen.
10. From the evidences brought by the prosecution it is established that the deceased was married in the year 1991 and she died in her Sasural in the year 1994, thus, the death had occurred within 4 years, i.e., within 7 years of marriage. It has come in the evidence that after the marriage, Gauna of the deceased was done on 10th December 1993 on which date she had gone to her Sasural and started living there and thereafter she died there in December 1994. The P.Ws. 1 and 3, brothers and P.W.2 mother of the deceased have stated that after Gauna of the deceased, the appellants started demanding motor-cycle and colour T.V and that due to non-fulfilment of the demand, the deceased was being tortured. These witnesses further stated that when the brother of the deceased used to go to deceased's Sasural to meet her, they were allowed to meet but with 12 much difficulty and intervention of the co-villagers there. They have also stated that the deceased had expressed that if the demand of motor-cycle and colour T.V. is not fulfilled, she might be killed in her Sasural. This witness has also stated that the appellants killed the deceased due to non-fulfilment of demand of dowry but their knowledge is stated to be based on the information given by their relative Baidya Nath Tiwary and the residents of deceased's Sasural village Baishpura but any of such persons has not been examined by the prosecution.
11. The defence has taken a plea that the deceased had died of sudden pain in her abdomen as a result of the disease which she was suffering of. The defence proved Ext-A and A/1 which are the prescriptions and certificate said to have been granted by one Dr. Vijay Kumar Singh. The prescription and the certificate mention that the deceased had been treated in the Doctor's clinic of the disease pulmonary tuberculosis from 10 December 1994 to 16th December 1994 and thereafter she was discharged from the clinic with advice to continue the medicine in the prescription. It has to be 13 mentioned here that the prescription has been brought on the record but the Doctor who had treated the patient has not been examined to say about the disease and the treatment. In such view of the matters, it is difficult to place full reliance on the prescription and the certificate (Ext-A and Ext-A/1, as brought by the defence.
12.The learned counsel for the appellants argued that the death of the deceased had not occurred in the circumstances other than normal but she had died a natural death due to tuberculosis. But this has to be considered here that the death of the deceased had not occurred in the hospital or the clinic during the treatment and the P.M. of the dead body was also not done to establish the cause of death. The defence claim is that she had died of tuberculosis. Any kind of treatment for such disease has not been proved by examining the doctor and simply the prescription showing treatment of such disease has been brought on the record.
13. Even on considering the prescription and the certificate it indicates treatment of tuberculosis from 10th December 1994 to 16th December 1994 i.e. for 6 days only and thereafter the deceased had died. There is 14 no prescription indicating any treatment of such disease prior to 10th December 1994. Thus, according to the prescription, there was treatment for 6 days and thereafter the death had occurred. In the prescription any kind of gravity of the disease is not mentioned in order to indicate the death due to disease in a short period. Tuberculosis is a disease in which prolonged treatment takes place. In the instant case, even if the defence plea is considered for argument sake, it does not stand to reason to accept the defence plea that the deceased had died a natural death due to ailment of tuberculosis within a short period of treatment of 6-7 days only, without there being any report of previous treatment of such disease and the prescription showing any seriousness of the deceased so as to indicate the happening of death shortly after the period of treatment. In such view of the matters, there is no ground to accept the defence plea and it has to be held that the death had occurred under the circumstances other than normal.
14. Learned counsel for the appellants referred to the evidence of the I.O. (P.W.2, Para-10, 12 and 14) where he had stated that the residents of village 15 Baishpura village had informed them that the deceased had died due to pain in abdomen, though these two witnesses, namely, P.Ws.1 at Para-7 and P.W.2 at Para- 5 have denied to have given such statement before the Police. It was argued that these witnesses have suppressed these facts while deposing in court and earlier they had stated before the I.O. that they had learnt that the deceased had died due to pain in abdomen. It has to be considered here that even if it is accepted for argument sake that these witnesses had given such statement before the I.O. it does not make any difference inasmuch as such statement does not contain the personal knowledge of P.Ws. 1 & 2 of such fact, but they are said to have learnt it from the villagers of village Biashpura. Any villager has not been named. Therefore, such statement is based on complete hearsay material and it cannot be relied on for any purpose.
15. Learned counsel for the appellants referred to the evidence of P.W.1 at Para-6 that during the time of occurrence, there was no electric supply service in the appellants' village. On the basis of this evidence, the learned counsel argued that the appellants are said to 16 have demanded a motor-cycle and a colour T.V. and it was submitted that supply of electricity is necessary for running a colour T.V., therefore, it was argued that due to there being no electric supply in the village it is not believable that the appellants had demanded any colour T.V. as stated by the witnesses. The learned A.P.P. replied that portable colour T.V. can operate on battery also. He also submitted that there is categorical and consistent evidence of P.W.1, 2 & 3 that colour T.V. and motor-cycle was being demanded as dowry.
16. The learned A.P.P. submitted that P.W.1 at Para-2 and P.W.3 at Para-3 have stated that the deceased had conveyed to them that she would be killed if the demand of dowry was not fulfilled. Learned counsel for the appellants submitted that this is a general and vague statement and it does not express any specific participation at the hands of any specific accused- appellant.
17. At the end, it has to be considered that P.Ws. 1, 2 & 3 who are brothers and mother of the deceased have named the appellants stating that they had demanded motor-cycle and colour T.V. Thus, there is 17 evidence that all the appellants were involved in the demand of motor-cycle and colour T.V. but only this much is not sufficient for holding all of them liable for the offence punishable under Section 304(B) IPC. The further acts required for holding the accused liable under Section 304(B) IPC is that they were also equally involved in the torture and harassment to the deceased leading to causing of dowry death as defined u/s 304 (B) IPC. In this context there is evidence that the deceased's husband, namely, Kishleshwar Upadhyay and other persons had committed torture in the manner that they were not allowing the deceased's brother to see her and that they could be able to meet her after much efforts and at the intervention of villagers. But considering the evidence as a whole, it appears that so far the appellants, other than the deceased's husband Kishleshwar Upadhyay, are concerned there is no specific evidence to show as to what part was played by the appellants, other than Kishleshwar Upadhyay in such occurrence. The responsibility of the appellant Kishleshwar Upadhyay, the husband of the deceased cannot be denied and he was always responsible for the welfare and protection of the 18 deceased, his wife. Any act of torture or harassment to the deceased at the hands of any one cannot be said to be possible when the husband, appellant Kishleshwar Upadhyay had extended all kinds of protection and help to the deceased. The act of not extending help and protection to the deceased makes the husband liable to a greater extent when such acts are committed on the wife. Therefore, I find that the husband, namely, appellant Kishleshwar Upadhyay has to be held responsible for the torture and harassment caused to the deceased before her death. So far other appellants, namely, Arun Upadhyay (Dewar), Lillabati Devi (mother-in-law) and Ramakant Upadhyay (father-in-law) are considered, their participation in the torture and harassment to the deceased appears to be doubtful, hence they are entitled to benefit of doubt.
18. In view of the facts and circumstance and the evidence, I find that the prosecution has not been able to prove its case beyond doubt against the appellants (1) Arun Upadhyay, (2) Lillabati Devi and (3) Ramakant Upadhyay therefore, by way of giving benefit of doubt, they are acquitted of the charges. So far appellant 19 Kishleshwar Upadhyay, the husband of the deceased is concerned, prosecution has been able to prove that he was involved in demanding motor-cycle and colour T.V. as dowry and due to non-fulfilment of demand, the deceased was subjected to torture and harassment at his hands and in connection to that the deceased had died under circumstances, other than normal. Considering the presumption as under Section 113(B) of the Evidence Act, appellant Kishleshwar Upadhyay is held to have committed dowry death punishable under Section 304(B) IPC. It has also come in evidence that this appellant cremated or disposed of the dead body without any information to the deceased's parents or brother. This appears to have been purposely done in order to screen him from the offence and to conceal or destroy the evidence, therefore, appellant Kishleshwar Upadhyay is also held guilty to be punishable under Section 201 IPC. So far the quantum of punishment is concerned, the learned trial court has awarded a sentence of R.I. for 10 years under Section 304(B) IPC and R.I. for 3 years under Section 201 IPC. In view of nature of the offence, the sentences are reasonable and justified. Both the 20 sentences will run concurrently.
19. In the result, the appeal is allowed in part in the manner that appellants (1) Arun Upadhyay, (2) Lillabati Devi and (3) Ramakant Upadhyay are acquitted of the charges and they are discharged from the liability of their bail bonds and that the order of conviction and sentence, as passed by the trial court with regard to the appellant Kishleshwar Upadhyay is sustained. Patna High Court, (Chandra Mohan Prasad, J) st Dt. 21 December,'10.
N.A.F.R. Jay/