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2000 DIGILAW 1159 (PAT)

Jai Shankar Jha And Another v. State Of Bihar

2000-09-26

M.L.VISA, NARAYAN ROY

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Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 11.1.94 and 18.1.94, respectively, passed by the Sessions Judge, Darbhanga, in Sessions Trial No. 109/91 convicting and sentencing the appellants to undergo imprisonment for life under Secs. 302/34, 304B/34 and 120B of the Indian Penal Code (in short, IPC). Appellants have further been convicted under Section 328, IPC but no separate sentence has been passed under this head. 2. The case of prosecution, in short, is that Sudha Devi, daughter of informant Hit Narayan Mishra (PW 3) was married to appellant Jai Shankar Jha about four years before the occurrence and three years after the marriage and about 11 months prior to occurrence after Bidai ceremony, Sudha Devi went to her Sasural and was living there but both the appellants along with co-accused Shri Narain Jha (since dead) who was father-in-law of Sudha Devi started torturing and assaulting her for the reason that she had not brought a television set in dowry. They used to give threatening to Sudha Devi that she must bring a T.V. from her parents otherwise she would not be allowed to live. Once on the occasion of Dashhara before the occurrence Surendra Kumar Mishra (PW 4), brother of Sudha Devi had gone to her sasural and in his presence also both the appellants and co-accused Shri Narain Jha assaulted Sudha Devi with kicks, fists and sticks on the demand of T.V. set. The informant out of fear of his prestige did not make any complaint against the appellants to the police. The further case of the prosecution is that on 6.10.90 at about 11 a.m., both the appellants and co-accused Shri Narain Jha after assaulting Sudha Devi with kicks, fists and slaps administered poison to her and killed her. At the time of occurrence, co-accused Arjun Rai (not appellant ) who is bahnoi (brother-in-law) of appellant Jai Shankar Jha was in the sasural of Sudha Devi and he also had his hand in the murder of Sudha Devi. The informant after hearing the news of murder of his daughter went to the village of her sasural where his fardheyan (Ext. 4) was recorded by ASI, Shiv Nandan Chaudhary. On the basis of fardbeyan of informant, formal FIR (Ext. 5) under Secs. 302, 328, 120B/34 IPC and Secs. 3/4 of Dowry Prohibitation Act was drawn. The informant after hearing the news of murder of his daughter went to the village of her sasural where his fardheyan (Ext. 4) was recorded by ASI, Shiv Nandan Chaudhary. On the basis of fardbeyan of informant, formal FIR (Ext. 5) under Secs. 302, 328, 120B/34 IPC and Secs. 3/4 of Dowry Prohibitation Act was drawn. The police visited the place of occurrence, inquest report on the dead body of Sudha Devi (Ext. 14) was prepared and her dead body was sent for post-mortem examination and viscera of the dead body was sent to Forensic Science Laboratory, Patna, for chemical examination and after receipt of report and after completing investigation charge-sheet under Secs. 302, 328, 120B, IPC and 3/4 of Dowry Prohibitation Act was submitted against both the appellants and co-accused Shri Narayan Jha and Arjun Rai. After taking cognizance case was committed to the Court of Sessions where charges under Secs. 302/34, 304B/34, 120B and 328, IPC were framed against both the appellants and co-accused Shri Narayan Jha and Arjun Rai. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses before the Court below was that Sudha Devi was not happy with her unbalanced marriage with appellant Jai Shankar Jha because she was elder in age than Jai Shankar Jha and for this reason she committed suicide. The Court below after trial found the appellants as well co-accused Shri Narayan Jha and Arjun Rai guilty under Secs. 302/34, 304B/34, 120B and 328, IPC and accordingly, convicted and sentenced them as indicated above. It appears that during the pendency of appeal appellant Shri Narayan Jha died because considering this fact appellant Jai Shankar Jha was granted provisional bail by this Court on 24.7.1995 to participate in the funeral rite of his father. 3. Altogether 12 witnesses have been examined on behalf of the prosecution. Hit Narayan Mishra (PW 3) is the informant. Sheo Shankar Mishra (PW 1) is the Mama (maternal uncle) of deceased Sudha Devi. Rajiv Kumar Mishra (PW 2) is the son of PW 1. Surendra Kumar Mishra (PW 4) is the brother of deceased. Ram Dulari Devi (PW 5) is neighbour of appellants and has been declared hostile. Ramji Singh (PW 6) is the Police Officer who had conducted part investigation of this case. Rajiv Kumar Mishra (PW 2) is the son of PW 1. Surendra Kumar Mishra (PW 4) is the brother of deceased. Ram Dulari Devi (PW 5) is neighbour of appellants and has been declared hostile. Ramji Singh (PW 6) is the Police Officer who had conducted part investigation of this case. Kali Kant Thakur (PW 7) is the Mukhiya of the Panchayat consisting the village of appellants where the informant had sent complaint against the appellants. Sewanand Singh (PW 8), Md. Ayub (PW 10) and Bijayendra Pd. Singh (PW 12) are formal witnesses who have proved sanction order granted by the District Magistrate (Ext. 6). Viscera report (Ext. 7/1) with signature of Deputy Director, Forensic Science Laboratory, Patna, (Ext. 7/2) and work-sheet (Ext. 9) with signature of Senior Scientific Officer (Ext. 9/1) and inquest report (Ext. 14). Atul Kumar Mallik (PW 9) is the doctor who had held post-mortem examination on the dead body of Sudha Devi. Md. Zafrul Hassan (PW 11) is a witness who at the time of post-mortem examination was present and in his presence viscera of the dead body was kept in a glass jar and he had packed the glass jar under the orders of doctor who held autopsy and had received letter from I.O. for sending the viscera to Forensic Science Laboratory for chemical examination and he has proved the endorsement (Ext. 10) of the doctor on this letter. 4. Dr. Atul Kumar Mallik (PW 9) in his evidence has stated that on 7.10.90 he was posted as Tutor in Forensic Medicine Department at Darbhanga Medical College, Darbhanga and on that day at about 11 a.m. he performed post-mortem examination on the dead body of Sudha Devi and found as follows: (i) The face was congested. The nail belts were cymosed and conjunctive was mildly congested. (ii) One bruise 2" × 1/2" was present on left side of face below left eye. Left eye was black. On cutting skin over face and neck, the underlying tissues were found bruised on both sides of cheek and over nose. On opening abdomen cavity the stomach was found to contain 10 c.c. of dark brown thick fluid and its mucosa were highly congested with haemorrhagic patches here and there. All abdominal visceras namely, liver, spleen and kidney were congested. Both lungs, brain and its meninges were congested. On opening abdomen cavity the stomach was found to contain 10 c.c. of dark brown thick fluid and its mucosa were highly congested with haemorrhagic patches here and there. All abdominal visceras namely, liver, spleen and kidney were congested. Both lungs, brain and its meninges were congested. The left lung showed caseation and thybrosis indicating tuberculosis of the lungs. A portion of left lung was sent to the department of pathology. DMCH, Darbhanga for histo-pathological examination for confirmation of naked eye findings and viscera was preserved for sending to Forensic Science Laboratory, Bihar Patna for chemical examination. According to him, injury found on the dead body was ante-mortem, simple in nature and caused by hard and blunt substance and he kept the opinion about the cause of death reserved pending receipt of report of chemical examination of viscera. In Court after going through the chemical examination report of viscera (Ext. 7) he stated that cause of death, in his opinion, was due to poisoning. He has proved the post-mortem examination report (Ext. 8). The report of Forensic Science Laboratory has been marked Ext.7. In an answer to Courts question, he stated that death was within 18 to 36 hours from the time of post-mortem examination and the total effect of poisoning and injury was sufficient in ordinary course of nature to cause death. 5. From the examination of PW 9, it is established that Sudha Devi died of poisoning and the time of death as given by this witness tallies with the time as suggested by prosecution. 6. Hit Narayan Mishra (PW. 3), the informant, in his evidence, has stated that his daughter Sudha Devi was married to appellant Jai Shankar Jha and 3 years after her marriage bidai ceremony was performed and thereafter she started living in her sasural and she was regularly sending letters to him from her sasural and by those letters she used to inform him that her husband, her mother-in-law and nandoi used to torture and assault her on account of a Television. He has further stated that on 6.10.90, he came from Calcutta to his village where at about 12 oclock in the noon his sala (brother-in-law) Sheo Shankar Mishra (PW 1) came to his house and told him that Sudha Devi was ill and requested him to accompany him and he then along with his Sala Sheo Shankar Mishra went to Rambhadrapur, Sasural of Sudha Devi where he reached at about 4.30 pm and there his sala told him that Sudha Devi had been killed by administering poison to her by the members of her sasural and he then went to the house of appellants where he met police and villagers and saw the dead body of Sudha Devi lying in the verandah with marks of injuries on her forehead and also found marks of vomitting of Sudha Devi. His fardbeyan was recorded by police on which he put his signature (Ext. 3). He has proved one letter (Ext. 1) which, according to him, is in the Writing of his daughter Sudha Devi and has further stated tat he had sent a Written application to Kali Kant Thakur, PW 7, Mukhiya of Rambhadrapur Panchayat along with this letter (Ext. 1). He has proved the carbon copy (Ext. 2) of this application with endorsement for receipt of original application by the Mukhiya. He has denied the suggestion of the defence that Ext. 1 is not in the Writing of her daughter Sudha Devi. From Ext. 1 which is the letter of deceased addressed to her father, I find that she has first given reference of her earlier information of torture. The deceased again stated that her husband and her mother-in-law both were torturing her on demand of T.V. set and for some time when her mother-in-law left for her naihar during that period, she was spared from the assault but when her mother-in-law came back the assault to her again resumed on the demand of dowry made by both the appellants and she was kept confined in a room under lock for three days. I find no reason to hold that this letter corning from the custody of informant is not in the pen of deceased. Kali Kant Thakur (PW. 7), who is Mukhiya of Rambhandrapur Panchayat, supporting the evidence of informant has stated that the informant had sent a Written complaint along with the original letter (Ext. 1) of his daughter. I find no reason to hold that this letter corning from the custody of informant is not in the pen of deceased. Kali Kant Thakur (PW. 7), who is Mukhiya of Rambhandrapur Panchayat, supporting the evidence of informant has stated that the informant had sent a Written complaint along with the original letter (Ext. 1) of his daughter. He in his evidence has stated that he had received the complaint (Ext. 2) sent by informant through his son along with original letter (Ext. 1) of his daughter and he after making endorsement on both these documents returned the original after keeping the photo copies. From Ext. 2 which is a complaint of informant addressed to this witness I find that the informant has clearly stated that appellants were torturing his daughter and assaulting her on demand of T.V. 7. Rajiv Kumar Mishra (PW 2) is the son of Sheo Shankar Mishra (PW 1) who happens to be the sala of informant and in this way this witness (PW 2) is the cousin of deceased. He has said that village Rambhadrapur which is the sasural of deceased is situate about 5-6 laggas from his village and he used to go to the sasural of deceased and about 15-16 months ago he found that there was no bangle in the wrist of deceased and when he asked the deceased about it she told that she was assaulted by her husband and in that assault her bangles were broken and when he returned back to his house he told this fact to his mother. Two days thereafter he again went to the Sasural of deceased carrying bangles which were given to him by his mother for deceased and he found co-accused Shri Narayan Jha sitting at the darwaja of his house and door of the house was closed and some sound was coming from the house and when he after opening the door entered the house the inmates of the house were surprised to see him and he found that both the appellants and co-accused Arjun Rai were standing there and Kamali Devi was carrying something in a glass and appellants Jai Shankar Jha and co-accused Arjun Rai were assaulting the deceased after pressing her mouth but the deceased anyhow managed to get her mouth freed and told him that she was being assaulted by those persons on account of demand of T.V. and thereafter, appellant Jai Shankar Jha again pressed the mouth of deceased and ordered to catch hold of him and he then fled away from there and came to his house. He then narrated the incident to his father. His evidence has been supported by his father Sheo Shankar Mishra (PW 1) who has said that on hearing about the incident from his son he went to the house of appellants where he saw the dead body of deceased lying there and on seeing him appellant Jai Shankar Jha and co-accused Arjun Rai fled away. He has further stated that he then went to the house of informant and brought him to his house where he narrated the incident to the informant and thereafter they both came to the sasural of deceased where fardbeyan of informant was recorded. In his cross-examination, he has stated that in his presence also the deceased was assaulted on a number of occasions and demand of T.V. from informant was made. He and his son, both, have been cross-examined at length but nothing has been elicited from them to disbelieve their evidence. 8. In his cross-examination, he has stated that in his presence also the deceased was assaulted on a number of occasions and demand of T.V. from informant was made. He and his son, both, have been cross-examined at length but nothing has been elicited from them to disbelieve their evidence. 8. Surendra Kumar Mishra (PW 4), brother of deceased, has stated that on the last time on 26-27.9.90 he had gone to the sasural of the deceased and had seen that appellant and co-accused Shri Narayan Jha assaulting her and co-accused Arjun Rai was instigating for assault and deceased was assaulted by fists and slaps and when he enquired from her sister she told that as T.V. was not given to them they were torturing her. He has stated that he then went to Calcutta to inform his father about the incident. 9. Ramji Singh (PW 6), who is a police officer, in his evidence has stated that in the month of October 1990 he was posted as officer-in-charge of Patore Outpost and he took charge of investigation of this case on 8.10.90. He has proved the fardbeyan (Ext. 4) and formal FIR (Ext. 5). He has further stated that on 13.10.90 he received post-mortem examination report, arrested co-accused Arjun Rai, recorded statement of Surendra Kumar Mishra and informant had handed over to him a photo state copy of letter of deceased and he then on 29.11.90 handed over the charge of investigation to another police officer. 10. From the evidence adduced on behalf of prosecution, I find that prosecution has established that demand of a T.V. set was made by the appellants from the deceased and on account of non fulfilment of their demand the deceased was being tortured and assaulted by them. There is no denial of the fact that deceased was married to appellant Jai Shankar Jha 4 years prior to lodging of the FIR by informant. The medical evidence coupled with the viscera report (Ext. 7) and the evidence of Md. Ayub (PW 10) and Md. Zafrul Hassan (PW 11) who have deposed on the point of taking out of viscera from the dead body of deceased, preserving it in a glass jar for sending it to Forensic Science Laboratory, Patna, work-sheet (Ext. 9) prepared at the time of chemical examination of viscera, etc. establishes the fact that deceased died of poisoning. Zafrul Hassan (PW 11) who have deposed on the point of taking out of viscera from the dead body of deceased, preserving it in a glass jar for sending it to Forensic Science Laboratory, Patna, work-sheet (Ext. 9) prepared at the time of chemical examination of viscera, etc. establishes the fact that deceased died of poisoning. The case of defence that deceased herself committed suicide because she was not happy with her marriage to appellant Jai Shankar Jha on account of uneven age cannot be accepted in view of positive evidence led on behalf of the prosecution and in absence of any proof to this effect by the defence. No doubt, out of two defence witnesses examined on behalf of defence, Raja Mishra (DW 2) has said that at the time of marriage the deceased was aged about 17 years whereas appellant Jai Shankar Jha was aged about 13 years but in cross-examination he has admitted that appellant Jai Shankar Jha happens to be the son of his sala and he cannot say even the date of birth of his own son and he never got any opportunity to see the horoscopes of deceased and appellant Jai Shankar Jha. He is highly interested witness and his evidence in absence of any basis of assessment of age of appellant cannot be accepted. Other witnesses is on the point of alibi of co-accused Arjun Rai who is not appellant in this appeal. So I find that death of deceased took place within the period of 4 years from her marriage and evidence on record shows that the death of deceased was under the circumstances other than normal ones and the prosecution has also proved that deceased was being tortured on account of demand of a T.V. as dowry. 11. In this case, I find that appellants besides Secs. 304B/34, IPC have been convicted under Secs. 302/34, 120 B and 328, IPC. On the point of sentence, I find that both the appellants have been sentenced to undergo imprisonment for life under Secs. 302/34, 304B/34 and 120B, IPC impliedly meaning thereby that for each head the appellants have been sentenced to undergo imprisonment for life. There is no direct evidence that appellants administered poison to the deceased resulting into her death. On the point of sentence, I find that both the appellants have been sentenced to undergo imprisonment for life under Secs. 302/34, 304B/34 and 120B, IPC impliedly meaning thereby that for each head the appellants have been sentenced to undergo imprisonment for life. There is no direct evidence that appellants administered poison to the deceased resulting into her death. No doubt, PW 2 Rajiv Kumar Mishra in his evidence has stated that on the date of occurrence he had seen the appellants assaulting the deceased and at that time appellant Kamali Devi was carrying something in a glass but has not said that she was carrying poison and any one of the appellants administered poison to the deceased. In this view of the matter, conviction of appellants under Secs. 302 and 328, IPC is not sustainable and it is therefore set aside. But so far charge under Sections 304B/34, IPC against both the appellants is concerned, I find that the same has been proved by prosecution beyond all reasonable doubts and both the appellants have been rightly held guilty under this head and their conviction and sentence under Secs. 304B/34, IPC requires no interference by this Court. 12. In the result, this appeal with the modification as indicated above is dismissed. The bail bonds of both the appellants are cancelled. Appellant Kamali Devi is directed to surrender before the Court below to serve out the sentence. Appellant Jai Shankar Jha was granted provisional bail and it is presumed that he must have surrendered. If so, he will serve out the sentence passed against him otherwise the Court below will procure his attendance accordance according to law so that he may also serve out the sentence passed against him. 13. Narayan Roy, J. I agree.