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2000 DIGILAW 83 (PAT)

Ram Charan Sao v. State Of Bihar

2000-01-18

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. This criminal appeal has arisen out of the judgment of conviction and sentence passed by Mr. Sudarshan Upadhyay, 1st Addl. Sessions Judge, Chatra In S.T. No. 314/93 whereby the learned Sessions Judge convicted the appellants under Secs. 498-A/304-B/34 of the Indian Penal Code and sentenced them to undergo R.I. for 10 years each under Secs. 304- B/34 of the Indian Penal Code but no separate sentence under Secs. 498A/34 of the Indian Penal Code is awarded against the appellants. 2. The case of the prosecution runs as follows: One Ganesh Sao, father of the deceased, Kanti Devi gave fardbeyan before the police alleging therein that Kanti Debi (deceased) was married with the appellant, Bigan Sao and after solemnisation of marriage, she went to her husbands house. It is further alleged that Bigan Sao demanded a Motor Cycle and a gold chain from the informant and he also threatened that if the demands are not fulfilled, the daughter would be killed. The informant told him that he had no money at the time and thereafter, Bigan Sao started torturing his daughter and also threatening took her back to his house. It is further alleged that the other appellants including Vijay Kumar Gupta and Hari Sao started torturing his daughter. On 17-3-1992, one Gopi Sao came to the informant at about 7 a.m. and informed that all the accused persons had killed his daughter, Kanti Debi by strangulation. On the basis of the fardbeyan the First Information Report was lodged. The police investigated into the case and submitted charge-sheet. All the accused-persons including the appellants appeared in the lower Court and the charges under Sections 3/4/34 of the Dowry Prohibition Act and under Secs. 304/34 and 498-A of the Indian Penal Code were framed against all the accused-persons including the appellants to which they pleaded not guilty. 3. The defence case as claimed is that the appellant have been falsely implicated in this case and they have committed no offence as the Kanti Devi died due to natural death. 4. It may be mentioned here at this stage that the accused Vijay Kumar Gupta and Hart Sao have already been acquitted by the trial Court as they were not found guilty for the offences charged. 5. 4. It may be mentioned here at this stage that the accused Vijay Kumar Gupta and Hart Sao have already been acquitted by the trial Court as they were not found guilty for the offences charged. 5. There is specific allegation in the fardbeyan which was recorded at the earlier stage of time that it was Bigan Sao, the husband, who demanded Motor Cycle and a Gold Chain and he also threatened that if either of these two items had not been given, their daughter could be killed whereas there is omnibus and general allegation against other accused-persons including the appellant Nos. 1, 2 and 3 for torturing the deceased. Admittedly, two accused-persons, namely, Vijay Kumar Gupta and Hart Sao have already been acquitted by the trial Court. 6. As many as 10 witnesses have been examined on behalf of the prosecution in this case of whom PW 8 and PW 10 are formal witnesses. PW 5 is the doctor who held postmortem on the dead-body of the deceased and found the following ante-mortem injury: (i) Gyanosed, mouth semi open fluid trickling from right angle towards rights ear. (ii) Neck were black gray mark as shown in figure at the level below thyrod cartledge was seen on the left side about 2 x 1 cm. in the mid-line transverse about 4 x 1 cm. on right side about 2 x 1 cm. The doctor opined about the cause of death by asphyxia resulting from throttling. He proved the postmortem report Ext. 3. The doctor stated in her cross-examination that there was no symon coming from the mouth of the deceased at the time of post-mortem and he did not find blood in the mouth of deceased. 7 PW 1 is Kaleshwar Sao, the grand-father of the deceased that she (deceased) was subjected to torture due to non-fulfilment of demand of motor cycle and one gold chain. He further deposed that he was sleeping in the house of his own son-in-law when he came to know about the death of Kanti Debi and he went to the place of occurrence and saw the dead-body of Kanti Debt. According to him there was a mark on the neck of the deceased indicating about strangulation. He further deposed in his cross-examination that the demand of motor cycle and a gold chain was made in presence of the accused Vijay Gupta and Ramcharan. According to him there was a mark on the neck of the deceased indicating about strangulation. He further deposed in his cross-examination that the demand of motor cycle and a gold chain was made in presence of the accused Vijay Gupta and Ramcharan. He further deposed that a theft was committed in the house of Ramcharan Sao on the same night. According to him the alleged incidence about committing theft was afterthought as the articles were scattered by the family members of Ramcharan Sao. PW 2, the mother of the deceased is hearsayWitness as she came to know about the death of her daughter. PW 3 Ganesh Sao, the father of the deceased has supported the prosecution case. According to him, there was a demand of motor cycle and one gold chain and due to non-fulfilment of the said demand his daughter was done to death. He stated in his cross-examination that there was no demand at the time of marriage but later on they started demanding the motor cycle and the gold chain. According to him, the accused persons manufactured a false case of theft. He emphatically stated in his deposition that his son-in-law Bigan Sao was demanding the said article. He had seen the scratch mark on the neck of the deceased. According, to him, he had seen the broken window of the house of Ramcharan Sao and one box was found to be lying. 8. PW 6 Jhart Sao, stated that he came to know from Gopi Sao that Kanti Debi was done to death by strangulation. PW 7 Ayodhya Sao also stated that Gopi Sao informed about death of Kanti Devi by strangulation. He is a witness on the inquest report. PW 9 Gopi Sao stated that the deceased Kanti Debi was married with Bigan Sao. According to him there was a dancing party in the fateful night in front of the door of Ramcharan Sao but he was not present at the said dancing party. He was present in his house and according to him, he heard a sound of char-char from the house of Ramcharan Sab but admittedly, he had not gone to that place. He has been declared hostile by the prosecution. He denied about the fact that he had ever informed to the informant about the murder of Kanti Devi by strangulation but he proved his signature on the inquest report Ext. He has been declared hostile by the prosecution. He denied about the fact that he had ever informed to the informant about the murder of Kanti Devi by strangulation but he proved his signature on the inquest report Ext. 4/1 which itself proves his presence at the relevant time and had seen the strangulation mark on the neck of the deceased. 9. No any other witness has been examined on behalf of the prosecution as all the accused were examined under Sec. 313, Cr. P.C. and they have denied the allegation. 10. Four witnesses have also been examined from the side of the defence. DW 1 is the formal witness who proved the cash-memo. According to .him. Hart Sao is the resident of Hazaribagh and he was not present at the place of occurrence. He was present at his shop situate at Hazaribagh but he admitted in his cross-examination that son of Hari Sao also used to sit in the shop in absence of his father. DW4 claimed that there was a hulla of chor from the house of Ramcharan Sao and he had visited the house of Ramcharan Sao and found the articles scattered but it appears that he has not been crossexamination by the prosecution and as such his evidence cannot be taken into account. 11. All the witnesses examined by the prosecution are very much consistent in their deposition about the demand of motor cycle and a golden chain specifically by the husband, Bigan Sao as alleged in the fardbeyan which was recorded at the earlier opportunity of time. The doctor who held post-mortem on the dead-body of Kanti Debi also found the cause of death by strangulation. It is an admitted position that Kanti Debi (deceased) died in the house of her husband. 12. The learned Counsel appearing on behalf of the appellant submitted that all the appellants have been falsely implicated in this case and the learned Court below has committed error in convicting the appellants when the theft was committed in the house of Ramcharan Sao in the same night as well as there is no eye-witness of the occurrence and so Kanti Debi (deceased) might have been done to death by the miscreants who committed theft in the house when resisted and objected by the deceased. It is further submitted that there is allegation about demand of motor- cycle and a golden chain but no such information about the said demand was given to any police official or other officials or there is no document to substantiate such story. It is further argued that there is a vital contradiction in the evidence of the witnesses which falsified the whole story of the prosecution in the manner as alleged. 13. It is evident from the fardbeyan itself that Bigan Sao demanded a motor cycle and a golden chain and he had also threatened that she (deceased) would be killed if either of the two items is not given. The witnesses have also supported the prosecution case about torturing the deceased prior to the occurrence and PW 3, the informant, emphatically stated that it was Bigan Sao who was pressing hard for the demand to be fulfilled. It is quite apparent that the deceased Kanti Debi was married just 10/11 days ago of the occurrence and Bigan Sao started demanding motor cycle and a golden chain just after five days of the marriage when he had brought the deceased to the house of the informant. It is true that there was minor discrepancy in the deposition of the witnesses which are inevitable and for which the whole prosecution case cannot be thrown away when there is over-whelming evidence against the appellant Bigan Sao for committing murder of the deceased Kanti Debi by throttling. Minor discrepancy regarding minute details of incidence including the sequence of events and overt act are possible even in the version of truth full witnesses. It is obvious in the case of dowry death when the deceased admittedly died in her Sasural and all the members of sasural are involved in the occurrence and so there is no question of eye-witness in such type of cases. The victim remains alone there even the neighbours are not expected to support the case of the prosecution in the presence of the accusedpersons who are the permanent neighbours and relations. Thus the submissions of the learned Counsel have got no substance and that cannot be sustained. 14. Accused Vijay Kumar Gupta and Hart Sao have already been acquitted by be trial Court. It may further be noted here that the trial Court did not find the case true for the offence under Secs. Thus the submissions of the learned Counsel have got no substance and that cannot be sustained. 14. Accused Vijay Kumar Gupta and Hart Sao have already been acquitted by be trial Court. It may further be noted here that the trial Court did not find the case true for the offence under Secs. 3 and 4 of the Dowry Prohibition Act and all the accused-persons including the appellants were acquitted for the said offences. Apparently, there is no specific allegation against the appellant Nos. 1 to 3, namely, Ramchanin Sao, Bhola Sao and Nirmala Devi for demand of dowry as well as there has no specific evidence come forward that these three appellants had ever tortured the deceased. Thus, it is evident that the learned trial Court committed error in convicting the appellant Nos. 1 to 3 i.e. Ramcharan Sao, Bhola Sao and Nirmala Devi for the offences charged. Thus, I find that the prosecution has miserably failed to establish the charges against the appellant Nos. 1 to 3 beyond all reasonable doubts and they are entitled for the benefit of doubt. Accordingly appellant Nos. 1, 2 and 3 are not found guilty and they are acquitted and set at liberty and their appeal is hereby allowed. These appellants are already on bail and as such they are also discharged from their bail bonds. 15. So far as appellant No.4, Bigan Sao is concerned, there is overwhelming evidence against him for demand of Dowry and torturing the deceased and also for committing the murder of Kanti Debi by strangulation which is evident from the medical evidence as well. Thus, I find that the learned Court below has rightly convicted the appellant No. 4 Bigan Sao for the offence charged. In the result, the appeal against appellant No. 4, Bigan Sao is hereby dismissed. The judgment of conviction, and sentence against Bigan Sao is confirmed. Appeal disposed of accordingly.