IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.153 of 1997
Against the judgment and order dated 7th
June, 1997 passed by Sri Ram Prabodh Singh,
learned Ist Additional Sessions Judge in
Sessions Trial No. 139/93/34/1993.
1. Bishwanath Jha, Son of Late Ramdayal Jha.
2. Kedar Nath Jha, Son of Late Ramdayal Jha.
3. Basuki Nath Jha, Son of Sri Bishwanath Jha.
4. Hira Devi, wife of Bishwanath Jha.
All residents of village - Labani, P.S. - Bahera, District -
Darbhanga.
.... .... Appellants.
Versus
The State Of Bihar
.... .... Respondent.
With
Criminal Appeal (SJ) No. 166 of 1997
Tribhuban Nath Jha, Son of Sri Vishwa Nath Jha, Resident of Village -
Labani, Police Station - Bahera, District - Darbhanga.
.... .... Appellant.
Versus
The State Of Bihar
.... .... Respondent.
-----------
For the Appellants : Mr. Ajay Kumar Thakur, Advocate.
Mr. Imteyaz Ahmad, Advocate.
Mr. Nilesh Kumar, Advocate.
For the Respondents : Mr. Parmeshwar Mehta, A.P.P.
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PRESENT
THE HON’BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. These two appeals Cr. Appeal No. 153 of 1997
and Cr. Appeal No. 166 of 1997 are being heard together and disposed
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of by the common judgment and order as both the appeals arises out of
the same judgment and order dated 7th June, 1997 passed by Sri Ram
Prabodh Singh, Ist Additional Sessions Judge, Darbhanga in Session
Trial No. 139/93/34/93 arising out of Bahera P.S. Case No. 143 of 1995,
G. R. No. 373 of 1992 by which the appellants have been convicted
under Section 304B of the Indian Penal Code and have been sentenced to
undergo rigorous imprisonment for ten years. The appellants have
further been convicted under Section 201 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for three years. The
appellants have further been convicted under Section 498A of the Indian
Penal Code and sentenced to undergo rigorous imprisonment for two
years and further convicted under Section 4 of the Dowry Prohibition
Act and have been sentenced to undergo rigorous imprisonment for one
year with a fine of Rs.2,000/- each and in default of payment of fine they
are further sentenced to undergo imprisonment for six months. However,
it has been ordered that all the sentences shall run concurrently.
2. The prosecution case as alleged in the fardbeyan by Surendra Jha,
the informant and the father of the victim is that the marriage of the
victim (deceased) Yamuna Devi was solemnized with the appellant
Tribhuwan Nath Jha in the year 1990 in the month of May and
Duragaman was performed in May 1992. The further case is that at the
time of Duragaman Biswa Nath Jha, the father of Tribuwan Nath Jha
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demanded T.V. and motor-cycle on which the informant promised to
fulfill the demand in due course after managing the money and then the
Duragaman was performed. It is further alleged that the husband of the
deceased and her in-laws used to subject her to cruelty to fulfill the
demand and used to pressurize her for the same. The further case of the
prosecution is that the victim used to report the subjecting of cruelty and
the informant several times went to the Sasural in this connection and
used to request the in-laws not to subject her to cruelty and even shown
his inability to fulfill the demand. On 21.06.1992 the informant came to
Bahera and then learnt that the accused persons have done the victim to
death by poisoning on 19.06.1992 and disposed of the dead body by
cremating and then he brought Kabita, one year old daughter of the
victim with him.
3. On the fardbeyan of the informant the FIR was lodged and after
investigation the charge-sheet was submitted, cognizance was taken and
then the case was committed to the Court of Session. Thereafter the
charge was framed under Sections 304B, 201, 498 and ¾ of the Dowry
Prohibition Act and after framing of the charge the trial proceeded and
ten witnesses were examined on behalf of the prosecution and five
witnesses were examined on behalf of the defence. After hearing both
the side and considering the evidence of the prosecution and defence the
order of conviction and sentence were recorded as stated above.
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4. Learned counsel for the appellant, however, contended that there
is allegation of demand in the fardbeyan only by the husband and one
Viswa Nath Jha. The other appellants live separately and some where out
side the village in pursuit of their livelihood and at the time of taking the
victim to the hospital also those appellants were not there and there is no
participation of them and they were neither present at the time of death
of the victim nor were instrumental in the death. It has further been
contended that P.Ws. 1, 2 and 3 have stated in their evidence that there is
no demand and the relationship with the victim in-laws were quite
cordial. It has further been contended that the evidence of P.W. 4 is not
reliable as he has been examined for the first time in court and has not
given any statement before the police and the evidence of P.W. 5 suffer
from contradiction regarding the demand and subjecting to cruelty. It has
further been contended that the false case has been instituted to extract
money as the informant, the father of the victim had taken loan from the
accused and this case has been filed so that the accused persons may not
demand the money.
5. Learned counsel for the State, however, contended that the
witnesses have supported the prosecution case and so far the evidence on
demand and subjecting cruelty is concerned, it is the father of the victim
who is the best witness and he has supported the prosecution case both
about the demand and subjecting cruelty and there is nothing in his
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evidence to disbelieve and though the defence claim that the victim was
taken to a doctor for her treatment for her illness but the said doctor is an
Ayurvedic doctor and has not given the cause of death either in his
report which was Ext. A nor prescription has been proved nor it has been
stated either in his certificate nor in the evidence about the cause of
death of deceased and further no post-mortem examination has been
done and the dead body has been disposed of without post-mortem
having been conducted and hence having regard to the circumstance
since the marriage solemnized within seven years of the occurrence and
there is allegation of demand and subjecting cruelty and evidence to that
effect and death is in suspicious circumstance and hence the prosecution
has proved the case beyond reasonable doubt and it is for the defence to
prove his innocence and the defence having failed to discharge its onus
and hence the order of conviction and sentence recorded by the learned
lower court is sustainable.
6. Perused the records in the light of the submissions made by the
parties. However, there is allegation that the marriage was solemnized in
the year 1990 and the occurrence took place in the year 1992 and there is
allegation of demand and subjecting cruelty. However, in the evidence of
P.W. 7 the informant has supported the prosecution case that the
marriage was solemnized and at the time of Duragaman a demand was
made by the husband Biswa Nath Jha and there is allegation for demand
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and subjecting cruelty and the informant has supported the prosecution
case in his evidence and has stated that the victim was abused and
assaulted and has stated that on 21.06.1992 then learnt that his daughter
has been done to death and it is apparent from the evidence of P.W. 7 the
informant. However, P.W. 4 and 5 are the two brothers of the victim
have come to support the prosecution case but their evidence has been
challenged on the ground that P.W. 4 has not been examined before the
police though this witness has stated before the police that his statement
was recorded by the police but the I.O. P.W. 9 has stated that in his
evidence Ram Prakash Jha has not given any statement during the
investigation. However, P.W. 1 and 2 are the seizure list witness and
have come to support and has stated that he saw the victim Yamuna Devi
dead and was rolling in pain and she was taken to hospital. However, the
witnesses 1, 2 and 3 have stated in their cross-examination that the
accused person used to love and give affection to the victim and there
was no demand. But this evidence in cross-examination is contrary to
the evidence of P.W. 7 the informant and there is no reason to disbelieve
the evidence of P.W. 7 who had special knowledge. However, P.W. 3 is
the out-sider. He has come to support that about the death of the
Yamuna Devi and her suffering and taking to the hospital. However, the
defence has also adduced five witnesses and D.W. 1 is the doctor who is
said to have treated the victim. The said D.W. 1 is the Ayurvedic
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Medical Practicenor and however, proves Ext. A, that he treated the
deceased. However, certificate Ext. A granted certificate by the D.W. 1
who claims to have treated the deceased only mentioned in Ext. A that
he treated but no mention what treatment was given. However, in his
entire evidence and certificate there is no mention of the disease neither
the cause of death nor the prescription has been proved and has stated
that the victim was brought at 8:00 A.M and died at about 10:00 A.M.
7. However, having regard to the evidence of the defence it is
apparent that the cause of death has not been ascertained and there was
no post-mortem examination though they have stated that Naihar people
of the victim have come. However, taking into consideration the entire
evidence there is no specific evidence regarding the participation of the
in-laws of the victim and there is evidence that they lived out side and
some are in service out side the place of occurrence, village and even the
evidence regarding the demand and subjecting cruelty against the
appellants than the husband is not specific.
8. Hence, having regard to the facts and circumstances the appellants
of Cr. Appeal No. 153 of 1997 who are in-laws of the victim are
concerned their participation or implication of the crime apparently
appears to be doubtful and hence further the learned lower court did not
consider the aspect about their specific participation and convicted the
appellants of Cr. Appeal No. 153 of 1997 and hence having regard to the
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facts and circumstances I find and hold that since there is no specific
evidence regarding the participation of appellant of Cr. Appeal No. 153
of 1997 and further the evidence that they are working out side, the order
of conviction and sentence recorded against the appellants of Cr. Appeal
No. 153 of 1997 is hereby set aside.
9. However, so far the husband is concerned since the marriage was
solemnized and there is evidence against the husband about the demand
and subjecting cruelty and from the set of evidence it appears that it was
the husband who had taken the victim to the hospital and the death of the
deceased was in suspicious circumstance as neither the post-mortem nor
the cause of death has been ascertained and the dead body was disposed
of and hence the death is in suspicious circumstance. Hence, Cr. Appeal
No. 166 of 1997 is hereby dismissed.
10. Cr. Appeal No. 153 of 1997 is allowed and the conviction and
sentence recorded against the appellants of Cr. Appeal No. 153 of 1997
is set aside and the Cr. Appeal No. 153 of 1997 is allowed.
(Gopal Prasad, J.)
Patna High Court, Patna.
Dated, the 21st July, 2011.
N.A.F.R./Kundan.
