Criminal Appeal (SJ) No. 333 of 2007
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Against the judgment and order of conviction and sentence dated
2.2.2007 and 3.2.2007 passed by Shri Narendra Bahadur Singh,
Additional Sessions Judge, Fast Track Court No. I, Gopalganj in S.T.
No. 177 of 2006/ 20 of 2006.
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Shahid Ansari, son of Jan Mohammad Mian, resident of village –
Ojhawalia, P.S. – Kateya (Janta Bazar), District – Gopalganj
……………… Appellant
Versus
The State of Bihar ………… Respondent
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For the Appellant : Shri Ram Kishore Singh, Advocate
For the State : Shri Ashwini Kumar Sinha, APP
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PRESENT
THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA
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Dharnidhar Jha, J. The solitary appellant, the husband of the deceased
Shamtara Devi, appeals to this Court against his conviction ordered by
the learned Additional Sessions Judge-cum-Presiding Officer, Fast
Track Court – I, Gopalganj by his judgment dated 2.2.2007 in
Sessions Trial no. 177 of 2006 / 20 of 2006. After being convicted of
offences under section 304B IPC and section 4 of Dowry Prohibition
Act the appellant, by order of sentence passed on 3.2.2007 was
directed to suffer RI for ten years under section 304B IPC. The court
below further directed the appellant to undergo RI for one year as also
to pay a fine of rupees five thousand on account of being convicted for
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the offence under section 4 of Dowry Prohibition Act. In case the
appellant had defaulted in paying up the fine, he had to suffer SI for
four months.
2. There is no dispute in the fact that Shamtara was married
to the appellant on 9.2.2001 and that she had, on the very next day,
gone with the appellant to reside there. All of a sudden, on 1st
September, 2003, the informant Nabab Ansari (P.W.8) was receiving
a telephonic information that his sister Shamtara had been burnt to
death. P.W. 8 along with P.W. 4 and other family members went to
the house of the appellant to find that the burnt dead body of Shamtara
was very much lying inside a room. He stated that the accused persons
were not present and further that villagers told him and others that his
sister had been burnt to death by the present appellant and his other
family members.
3. On the basis of the fardbeyan of P.W. 8, the FIR of the
case was drawn up and the investigation was undertaken. The I.O. has
not been examined but, what appears from the lower court record and
the evidence is that the police held inquest upon the dead body and
prepared the report (Ext. 1) and thereafter, sent the dead body for
holding postmortem examination by P.W. 9 Dr. Shashi Kumar Gupta,
who did not find any external or internal injury except that almost the
whole of the body had been burnt extensively, as such, the doctor
P.W. 9 found the burn up to 90%. The death, in the opinion of P.W. 9
was on account of flames of fire, which caused burn injuries to the
deceased.
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4. Investigation was partially closed against the appellant,
keeping the same pending against the other accused persons and
charge sheet was submitted against him, which ended in the impugned
judgment.
5. The defence of the appellant, as appears from the trend of
cross-examination, was that the appellant and his family members
were earlier resident of village Baghauni but, after the marriage of the
deceased they shifted to another village Ojhwalia. The deceased was
not inclined to go to the new place Ojhwalia, but she was persuaded to
go there and, lastly, she, on account of being depressed, set herself
on fire.
6. Nine witnesses were examined by the prosecution and
three by the defence. The prosecution evidence is very uncertain as
regards the allegation that the appellant or other accused persons were
demanding a colour television or a motorcycle. In fact, the mother of
the deceased examined as P.W. 5, did not even speak a word about a
motorcycle or a colour television being demanded. Likewise, the other
brother of the deceased (P.W. 7) or the father of the deceased (P.W. 6)
were also not stating anything in their examination in chief as regards
the demand and the torture of the deceased on that account.
Whichever witnesses were supporting the demand of colour television
do not appear having their first hand information. So far as the
deceased and the solemnization of the marriage is concerned, the
father (P.W. 6) stated in paragraph 6 of his evidence that right from
the arrival of the Barati up to the Bidai of the bride, everything was
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solemnized or had happened in a congenial atmosphere and it was a
happy marriage. Same is the evidence of P.W. 7 Shamshad Alam. He
has also stated that the marriage was solemnized in a congenial
atmosphere and the deceased had gone to her matrimonial house
happily. His evidence in paragraph 7 further indicates that whenever
she came back to her parent’s house, she appeared happy and enjoying
the married life and never complained of anything against the
appellant or his family members. This is in the evidence of witnesses,
as may appear from the evidence of P.W. 5, the mother of the
deceased in paragraph 3 as also her father (P.W.6) in paragraph 5 and
his brother (PW 7) that after the appellant had constructed their new
house to shift to village Ojhwalia from Baghauni, the deceased was
quite unhappy and was not at all desirous of joining the appellant or
his other family members in his new house at Ojhwalia. P.W. 6, the
father of the deceased had stated that the father of the present
appellant, namely, Jaan Mohammad had implored and requested him
immensely to allow his daughter to join them at the new place after
the Bidai of the deceased and the deceased was not inclined to go to
the new house of the appellant and after much persuasion by her father
she went to the appellant’s house at Ojhwalia.
7. Relationship between the parties appeared cordial. This
also appears from the evidence that there was no acrimony or ill will
between the parties on account of any reason. The marriage had been
solemnized happily, the deceased was living with the appellant in his
house quite happily, she was not complaining against any one nor did
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she appear complaining about their in-laws or the husband that they
were, firstly, demanding any dowry article and, secondly, were ill
treating her with cruelty. What appears to me from the evidence of
witnesses, I have just discussed, is that the deceased was probably not
inclined to live at the new place amidst the new environment and she
was, probably, persuaded or may be that she was forced by her parents
and other family members to join his family in the new house, that she
had gone in depression and possibly, could have ended her life by
setting her at fire. This possibility appears very much lurking out of
the evidence and in that view, the learned trial judge was simply
missing this important aspect of the case so as to going to convict the
appellant for the offence for which he has been sentenced by him.
8. In the result, the appeal succeeds. The judgment of
conviction and order of sentence is hereby set aside. The appellant is
in custody, he shall be released forthwith if not wanted in any other
case.
(Dharnidhar Jha, J.)
Patna High Court,
The 23rd August, 2011,
NAFR/Anil/