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2000 DIGILAW 520 (PAT)

Tribhuwan Mahto v. State Of Bihar

2000-04-03

S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by Shri Arun Kumar, 4th Additional District and Sessions Judge, Gopalganj dated 12.4.1999 in Sessions Trial No. 161/97/11/97 The accused was convicted under Section 304-B and Section 201 and Section 498-A of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years under Section 304-B and three years and two years under Sections 498-A and 201 of the Indian Penal Code. All the sentences were directed to run concurrently. 2. The case of the prosecution, as stated in the complaint petition, which was referred to the police for investigation, is that the complainant had married his daughter Reshmi Devi to the accused appellant in the year 1995. Immediately after the marriage, his daughter went to the house of the accused. At the time of marriage, the complainant had gifted articles worth Rs. 25,000/- to the accused; but the accused was dissatisfied and, therefore, he used to pressure and torture the deceased for bringing further articles from her parents. The deceased informed her father about this kind of pressure upon her several times. Then the complainant himself and his nephew went to the house of the accused and arranged panchaiti and persuaded the accused and his family members not to subject the deceased to any kind of torture. In July of the last year (prior to the filing of the complaint petition on 26.11.1996) the brother of the complainant Baburam Mahto went to the house of the accused and pacified the accused and his father Suresh Mahto and requested them not to torture the deceased. The complainant later learnt that accused-appellant went to Calcutta along with his wife. The complainant was under impression that the accused had gone to Calcutta in the company of his wife and hence, he did not go to the village of the accused to make any enquiry about her. However, on 20.9.1996 the complainant and his bhagina (sisters son) went to the village of the accused to inquire about the welfare of the daughter. Then other accused-persons named in the complaint petition as Birendra, Toofani, Sri Mahto and Chandrika and some others (in all about 10 persons) told him that the accused had gone to Calcutta with his wife. However, on 20.9.1996 the complainant and his bhagina (sisters son) went to the village of the accused to inquire about the welfare of the daughter. Then other accused-persons named in the complaint petition as Birendra, Toofani, Sri Mahto and Chandrika and some others (in all about 10 persons) told him that the accused had gone to Calcutta with his wife. Thereafter, when Tribhuwan Mahto and Suresh Mahto, father of the accused-appellant case back to his village from Calcutta on the occasion of Diwali, then the complainant again went to his daughters sasural to learn about her welfare. On this occasion, Suresh Mahto, father-in-law of the deceased, got nervous in talking with the complainant and fled away from the village the same night. The complainant grew suspicious and made enquiry from villagers who told him that the complainants daughter was killed and the dead-body was thrown into the canal water after being kept in a bag. 3. The complainant returned to his village and thereafter, he went to Calcutta to enquire about his daughter from the accused-appellant and his father Suresh Mahto, but these two persons failed to give any satisfactory reply to his anxious enquiry. The complainant returned from Calcutta and went to P.S. Uchkagaon, but the police refused to entertain any case and thereafter the complainant presented his complaint petition before the Court on 26.11.1996. This complainant was referred to the police for investigation. Then subsequent investigation, submission of charge-sheet, etc. and trial of the accused followed. 4. The prosecution examined 7 witnesses and the accused also examined one witness. PW 7 is the I.O. of the case. PW 6 was declared hostile because he did not utter a single word about the prosecution case. PW 5 was also declared hostile because he also went along with PW 7 so far as the prosecution case is concerned. PW 4 is Harihar Sah. His evidence is that he had learnt from others that Tribunwan Mahto had gone to Calcutta with his father and his wife. In cross-examination by the accused, he has said that he had not himself seen the accused and his wife going to Calcutta. PW 3 is Shiv Prasad Mahto, that is, the complainant himself. PW 2 is Dharamnath Sah. He is a man from the village of the accused. His evidence is to the effect that he knew the accused and his wife Reshmi Devi. PW 3 is Shiv Prasad Mahto, that is, the complainant himself. PW 2 is Dharamnath Sah. He is a man from the village of the accused. His evidence is to the effect that he knew the accused and his wife Reshmi Devi. He had gone as a barati on the occasion of the marriage of the accused with Reshmi Devi. He has further stated that Tribunwan Mahto used to subject his wife to occasional assault after marriage. He has further spoken of the intervention of the father of the deceased regarding this occurrence of assault on his daughter. He still further stated that Tribunwan Mahto, Suresh Mahto and others killed Reshmi Devi in the month of September 1996 and threw her dead-body into a canal. PW 1 is brother of the complainant. So far as the evidence of PWs 1 and 3 is concerned, it is to the effect that the deceased used to complain of her ill-treatment at the hands of her husband and father-in-law on account of non-fulfilment of further dowry demanded. So, they had learnt about her killing from PW 2 Dharamnath Sah. 5. The DW examined on behalf of the accused said that on the occasion of Dussehra, Tribhuwan Mahto had brought his wife to Calcutta to enjoy fair and on a particular date, they had gone out of their house to enjoy Dussehra fair. However, Tribhuwan Mahto returned but his wife did not return. So, there was a report to the police and station diary entry was made in this connection. 6. From the total evidence on record, it is apparent that so far as the marriage of the deceased with the appellant is concerned, it was very well admitted. The fact that the deceased was living at the house of her sasural where the alleged occurrence of her tracelessness or killing occurred was also admitted. Now, the point is whether the accused-appellant shall be fixed with the liability of killing his wife. The fact that the deceased was living at the house of her sasural where the alleged occurrence of her tracelessness or killing occurred was also admitted. Now, the point is whether the accused-appellant shall be fixed with the liability of killing his wife. In this connection, it was pointed out to me by the appellants lawyer that the strained relationship was not proved because the accused had gone to his father-in-law to see him when he was operated upon for his eyes ailment, but this criticism is off the mark, because PW 3 Shiv Prasad Mahto clearly said that he was operated upon for his eye defect six months after the marriage of his daughter in Gopalganj hospital. This is at paragraph 21 of his evidence. Admittedly, the deceased was married in the year 1995 and this mar iage must have taken place during marriage season because both the parties are admittedly Hindus. So, six months after the marriage comes to December 1995. The occasion of illtreatment to the deceased might have taken place after six months or so and hence simply because the accused went to see his father-in-law in the hospital, that will not give any inference that relationship between the two families was not at all strained. 7. The evidence was next criticised on the ground that the complainant stated that he had sent his brother (PW 1) to Calcutta whereas PW 1 denied that he went to Calcutta. This discrepancy, however, is not going to affect the prosecution case on vital point because admittedly according to the case of the accused himself, the deceased went to Calcutta along with him. Moreover, loss of memory also may be attributed to this kind of discrepancy because witnesses were examined in the year 1997. 8. Another aspect of discrepant evidence has been pointed out by the appellants lawyer to the effect that PW 3 stated at paragraph 13 that he had learnt from Dharamnath Sah in October, 1994 about the killing of the victim, but the case itself was filed in September. But this criticism is also not going to click because the case was filed in November 1996 as the complaint-petition disclosed (25.11.1996). 9. But this criticism is also not going to click because the case was filed in November 1996 as the complaint-petition disclosed (25.11.1996). 9. So from the evidence on the record, it boils down to the fact that the deceased was at her sasural when the alleged occurrence took place and the fact that there was strained relationship between the two families or between the husband and the wife on account of further dowry demand is well supported by the evidence of PWs 1 and 3. There is no escape from this inevitable evidence on the record. 10. The next circumstance to consider in respect of the case is that the deceased was last seen in the company of the husband, whether at Calcutta or whether at village home. The plea of the accused that his wife became traceless when they had gone to visit the mela has not been supported by unimpeachable evidence because neither S.D. entry has been brought on the record nor specific date when the accused and his wife went out from their home at Calcutta has been given in the evidence of DW 1. The accused also in his statement under Section 313 of the Code of Criminal Procedure failed to give the exact date and not only that he had also failed to give when Dussehra festival occurred in the year 1996. So, there was no definite evidence regarding the fact that Dussehra festival took place during a particular period from which it can be inferred that of course, the deceased had gone to Calcutta in the company of her husband to visit mela. In such a circumstance, it is for the accused alone to explain the fact of tracelessness of the deceased. In such a circumstance, there shall be no escape from the conclusion that the deceased might have been killed and her dead-body must have been disposed of in order to conceal the evidence of murder. 11. As a result of the aforesaid discussion on the evidence on record and the circumstances, I do not think, there is any legal flaw in the findings of the lower Court in order to invite any interference by this Court. This appeal is accordingly dismissed and the order of conviction and sentence is hereby confirmed.