CRIMINAL APPEAL No.762 OF 2007
With
CRIMINAL APPEAL NO. 649 OF 2007
Against the judgment and order, dated 18.6.2007 and 19.6.2007 passed by Shri
Indu Bhushan Prasad, Addl. Sessions Judge, F.T.C. 3, Madhepura in S.T. No. 116
of 2005.
Cr. Appeal No. 762 of 2007 :
Pappu Kumar, son of Chandeshwari Yadav,
Cr. Appeal No. 649 of 2007:
1.
Amrika Devi, wife of Chandeshwari Yadav,
2. Chandeshwari Yadav, son of Late Moti Prasad Yadav, all three residents of
Murliganj Ward No.11, Middle Chowk, PS Murliganj, Dist. Madhepura ..
Appellants.
Vs.
The State of Bihar.
For the appellants : Mr. Kanhaiya Prasad Singh, Sr. Advocate, Mr. Uday Chand
Prasad, Mr. Manoj Kumar and Mr. Binod Kumar Singh, Advocates.
For the State : Mr. Rajendra Nath Jha, Addl. P.P.
P R E S E N T
THE HON’BLE JUSTICE SMT. SHEEMA ALI KHAN
S.A.Khan,J. Both these appeals arise out of the same judgment and
hence they have been heard together and are being disposed of by this
common judgment.
The appeals relates to an offence under sections 304B,
498A, 494 and 201 of the Penal Code for which the appellants have
been convicted to undergo R.I. for 10 years each under Section 304 of
the Indian Penal Code, 3 years with Rs. 3000/- fine under Section 498 A
of the Indian Penal Code and R.I. for 2 years with fine of Rs. 2000/-
each under Section 494 of the Indian Penal Code.
This is one of those cases where the informant who is
father of the victim lady Shyama Devi has resiled from his earlier
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statements made in the F.I.R. and given a complete go by to his own
case. In the circumstances this court will now discuss the evidence
which have come on record.
Out of nine prosecution witnesses in this case, six
witnesses i.e. PWs 1, 2, 4, and 5 cousin brothers of the informant, and
PW 6 have been declared hostile. This court now has to consider the
evidence of PW 3, PW 7, and the Investigating Officer of the case, PW
8, the doctor who has proved the signature on the post mortem report
(Ext. 4).
PW 3 Madan Murari Yadav father of victim lady states
that in the evening before the occurrence he was informed on telephone
by his son-in-law Pappu Yadav that his daughter has died. He further
states that his daughter was married to Pappu Yadav ten years back. It is
further stated that this witness says that when he went to the house of
his son-in-law, he found that his daughter was lying dead and
immediately thereafter the police arrived at the spot and arrested the
father-in-law and the mother-in-law. According to him the F.I.R. was
not read out to him and he was made to sign on a document which was
already prepared and written by the Investigating Officer. In the cross
examination PW 3 states that his daughter had good relation with her
husband and in-laws and that there was never any demand of dowry or
money from the in-laws or the husband of the victim lady.
In view of the aforesaid statements PW 3, not much can
be said with respect to the manner of the occurrence. The I.O. was
examined as PW 7 who supports the case that he had recorded in the
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case diary and also supports the F.I.R. This witness also states that he
got the victim’s body sent for the purpose of performing post mortem.
Ext. 4 indicates that the victim lady died of strangulation. Although the
doctor who had performed the post mortem has not been examined
nevertheless the report has been formally proved.
Learned counsel appearing on behalf of the appellants
submits that in view of the statements of the informant in court that the
marriage took place ten years back and that there was no demand of
dowry, that he was informed regarding the death of his daughter and
that his daughter was never tortured or subjected to harassment by her
husband and in-laws. Thus the ingredients of section 304B and 498A
are not made out against the appellants.
It appears from the evidence of PW 3 for some reason or
the other he has resiled from his statement in the F.I.R. The trial court
has convicted the appellants on the basis of the F.I.R. which, in my
view, the court could not have done in view of the settled law that the
F.I.R. is not a substantive piece of evidence. The F.I.R. can be used only
for two purposes, either to corroborate the prosecution case or to point
out contradictions in the case set up by the informant.
Section 498A of the Indian Penal Code specifically
provides that a husband or a relative of the husband of a woman
subjects such woman to cruelty shall be punished for imprisonment for
a term which may extend to 3 years or with find. Cruelty has also been
defined in the said Section as any wilful conduct which would drive a
woman to commit suicide and harassment of a woman with a view to
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coercing her or any relation of such person to meet the unlawful
demand for any property or valuable security. In this case the informant
resiled from the statement and has led no evidence to show that there
was cruelty, harassment or any demand made by the husband or the
relatives of the husband. Having failed to lead evidence to show that
the victim was subjected to cruelty or harassment, the question that
would then arise is whether the ingredients of Section 304B of the
Indian Penal Code have been satisfied in the facts of this case. The
main features of the evidence before the Court is that the marriage took
place 10 years earlier to the occurrence. There was no demand of
dowry and that the informant informed of his daughter death. In order
to attract application of Section 304B, the essential ingredients are as
follows:
1. An unnatural death of a woman within 7
years of marriage.
2. That soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband.
3. Such cruelty or harassment should be in
connection with any demand for dowry.
4. It has also been held by some Courts that
even when circumstances are created by
the husband or by the in-laws of the
deceased compel her to choose death as
the only way out the provisions
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The facts reveal that in fact in this case the ingredients of
Section 304 B are not attracted.
After perusal of the evidence and the provisions of law as
pointed out by the counsel, there is still one aspect of the matter which
cannot be ignored by the court and that is that the victim lady died an
unnatural death. The post mortem report indicates that she died due to
strangulation. True it is that the witnesses have not come up with a case
which may lead to this court to hold that the death was due to dowry.
However, they have not been able to show or to indicate that the death
was natural one. Learned counsel submits that the doctor has not been
examined in Court and so the appellant could not get an opportunity to
cross examine him with respect to injury/post mortem report and as
such the Court cannot conclude that the death was an unnatural one.
Therefore, this court finds that although a case is not made out under
section 304B of the Penal Code, may be cognizable offence was
committed.
Learned counsel for the appellants submits that the
appellants cannot be convicted for any offence for which charge has not
been framed and as such it would not be proper for this court to convict
them for any offence without following the procedure as laid down in
the Code of Criminal Procedure. I agree with the submissions made on
behalf of the appellants. It would be open for the State to take steps in
this direction and restart the trial by framing charges under Section 302
of the Indian Penal Code, although I do feel that it will not meet with
much success in view of the nature of the evidence and the attitude of
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the witnesses in this case.
For the reasons discussed above, the judgment and order
dated 18.6.2007 passed in Sessions Trial No. 116 of 2005 arising out of
Murliganj P.S. Case No. 44 of 2004, GR Case No. 351 of 2004 are set
aside and appellants Pappu Yadav and Chandeshwari Yadav who are in
custody are directed to be set at liberty forthwith if not wanted in any
other criminal case. Amrika Devi who was on bail during the pendency
of her appeal is discharged from the liabilities of her bail bonds.
In the result, these appeals are allowed.
(Sheema Ali Khan, J.)
Patna High Court,
April 2, 2009,
NAFR / haque