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2000 DIGILAW 94 (PAT)

Butan Sao v. State Of Bihar

2000-01-19

D.N.PRASAD

body2000
Judgment 1. This criminal appeal has arisen out of judgment and order dated 19-4-1997 and 23-4-1997 passed by Shri D. K. Sinha, Additional Sessions Judge, Hazaribagh in S. T. No. 82/93 by which the appellants have been convicted under S. 304B/34, I.P.C. and sentenced to undergo R. I. for 10 years. They are further convicted under S. 201/34, I.P.C. and sentenced to undergo R. I. for five years. However, both the sentences were ordered to run concurrently. 2. The case of the prosecution runs as follows. The Informant, Lutan Sao gave Fardbayan before the police claiming therein that his daughter, Hemanti Devi alias Budhni Devi was married to Chotan Sao about 4/5 years ago in accordance with Hindu rites and rituals. It is further alleged that the accused persons started demanding a sum of Rs. 2,000.00 as dowry, though the Informant had already paid a sum of Rs. 8,000.00 at the time of marriage. The Informant further claimed that he was informed that his daughter died at village Banka and on such information the informant along with witnesses rushed to the Sasural of his daughter in the village Banka and found his daughter died. He also found froth coming out from her mouth and there was also injury on her forehead and, therefore, the Informant had reason to believe that his daughter was done to death and thereafter thrown into the well by the appellants. There was a Panchayati also held earlier and the appellants assured in the said Panchayati to keep his daughter peacefully and with grace.On the basis of the Fardbayan, the F. I. R. was lodged against all the appellants for the offences under Ss. 304B/34 of the Indian Penal Code. The police investigated into the case and submitted chargesheet against all the appellants. 3. All the appellants produced before the trial Court and the charges for the offences under Ss. 304B/34 and 201/34 of the Indian Penal Code were framed, to which they pleaded not guilty. Witnesses were examined in the lower Court. After going through the evidence on record, the trial Court convicted the appellants and sentenced them to undergo imprisonment in the manner as stated above. 4. 304B/34 and 201/34 of the Indian Penal Code were framed, to which they pleaded not guilty. Witnesses were examined in the lower Court. After going through the evidence on record, the trial Court convicted the appellants and sentenced them to undergo imprisonment in the manner as stated above. 4. Not being satisfied by the impugned judgment and conviction, the appellants preferred the appeal on the ground that the learned trial Court committed error in convicting the appellants though there is no eye witness of the occurrence and there is much contradiction in the evidence of witnesses. It is also claimed that the doctor did not ascertain about the cause of death and the appellants have been falsely implicated in this case, who are already in custody since long. 5. At the very outset, I would like to mention here that there is a specific allegation against all the appellants for committing death of Hemanti Devi alias Budhni and the dead body was found in the well. There is also allegation in the Fardbayan (Ext. 3) that froth was coming from the mouth and there was injury on the forehead of the deceased. There is also specific allegation against all the appellants for demand of a sum of Rs. 2,000.00 in dowry and due to non fulfilment of the said demand the deceased was subjected to torture and cruelty by the appellants. 6. PW-1, PW-2 and PW-3 have clearly stated that the dead body was found in the well which was pulled out with Jhaggar and they had also found injury on the head of the deceased. According to them, there was no dispute in between the deceased and the accused persons at any point of time. PW-4 and PW-6 have been tendered by the prosecution. 7. PW-7 is the Professor, who claimed to have gone with the Informant at the Sasural of the deceased at the relevant time. According to him, he also found injury on the head of the deceased which was caused by some incised weapon. He stated in his cross-examination that the police had also reached to the place of occurrence after half an hour of their arrival at the spot. 8. PW-8 is the brother of the deceased. Hestated that the appellants were demanding a sum of Rs. 2,000.00 in dowry prior to the occurrence. He stated in his cross-examination that the police had also reached to the place of occurrence after half an hour of their arrival at the spot. 8. PW-8 is the brother of the deceased. Hestated that the appellants were demanding a sum of Rs. 2,000.00 in dowry prior to the occurrence. He further stated that the appellants had also threatened that his sister would be killed if the demand is not fulfilled. He further stated in his cross-examination that a sum of Rs. 8,000.00 was paid to the appellants at the time of Tilak and the said amount was paid in presence of the father and brothers of Chatu Sao, but still they were demanding a sum of Rs. 2,000.00 more which could not be paid. He further stated that there was a Panchayati held in which Mukhiya was also present in the said Panchayati. 9. PW-9 is the father/informant of the deceased. According to him, he came to know that his daughter was thrown in the well after committing murder and thereafter he along with witnesses rushed to the spot. He further stated that he found injury on the head of the deceased as well as froth was coming out from her mouth. He stated in his cross-examination that he had paid a sum of Rs. 8,000.00 to Butan Sao in presence of Anwar Hussain (PW-7) and Reyasat Hussain. He further deposed that the appellants were demanding a sum of Rs. 2,000.00 in dowry just after 2-3 months of the marriage and there was also threat given by the appellants that his daughter would be killed if the demand is not fulfilled. The injury found on the head of the deceased was caused by sharp cut weapon. 10. PW-10, is the Mukhiya, who claims to be present at the time of Panchayati. According to him, there was compromise held in the Panchayati and the appellants assured to keep the deceased gracefully and thereafter the deceased had gone to Sasural. He stated in his cross-examination that no any document has been reduced in writing at the time of the said Panchayati. 11. PW-11 is the doctor, who held post mortem on the dead body of deceased Hemanti Devi aged about 18 years. Opinion regarding cause of death was kept reserved till examination report of viscera. He proved the post mortem report, Ext. 2. 11. PW-11 is the doctor, who held post mortem on the dead body of deceased Hemanti Devi aged about 18 years. Opinion regarding cause of death was kept reserved till examination report of viscera. He proved the post mortem report, Ext. 2. According to him, lacerated wound was found on the head of the deceased which was caused by hard blunt substance. 12. PW-13 proves the chemical report of the viscera, which is Ext. 5. From the viscera report, Ext. 5, it is apparent that "Aldrin was detected in the dark brown fluid". Aldrin is a Chloro-Organic pesticide which is widely used in agriculture for killing pests and it is poisonous.Thus, it is apparent from the report of viscera that Aldrin was detected in the viscera which is poisonous and can be the cause of death of the deceased. 13. PW-8 and PW-9 are very consistent in their depositions that there was a demand of a sum of Rs. 2,000.00 by the appellants as dowry after 4-5 months of the marriage and for which there was also threatening for dire consequence. They had also detected that froth was coming out from the mouth of the deceased. PW-7 and PW-10 are the independent witnesses and they have also supported the prosecution case as regards to the Panchayati and causing injury on the head of the deceased. It is an admitted position that dead body was found in the well which was pulled out by Jhaggar. It is true that there was no eye witness of the occurrence but in such type of cases, it is quite difficult to have an eye witness, when admittedly, Hemanti Devi died in her Sasural in otherwise circumstances. Viscera was also sent for chemical examination and Aldrin was detected, which is poisonous. Thus, it is clear and evident from the evidence on record that Hemanti Devi was done to death by poison and that could only be possible at the hands of the appellants. 14. The learned counsel appearing for the appellants submitted that the Investigating Officer has not been examined in the case due to which accused persons/appellants were caused prejudiced. Thus, it is clear and evident from the evidence on record that Hemanti Devi was done to death by poison and that could only be possible at the hands of the appellants. 14. The learned counsel appearing for the appellants submitted that the Investigating Officer has not been examined in the case due to which accused persons/appellants were caused prejudiced. It is also submitted that there is no independent witness coming forward to support the prosecution case as well as Fardbayan was recorded at 16.30 hours on 13-9-1992 and subsequently formal F. I. R. was drawn up at about 21 hours, but no plausible explanation has been given on behalf of the prosecution for such inordinate delay in reporting the matter. But, it is well settled that non-examination to Investigating Officer did not prejudicially affect the accused as to furnish a ground for acquittal. Moreover, all the witnesses including the independent witnesses are very consistent in their evidence about the demand of dowry and torturing the deceased from before. It was detected that froth was coming out from the mouth and for which viscera was sent for chemical examination and after examination Aldrin was detected which itself gives much force in the prosecution story about thekilling of deceased by the appellants by poisoning. It is apparent that F. I. R. has been lodged with satisfactory explanation. Moreover, it is also settled that mere delay in lodging the F. I. R. by itself is not enough to reject the prosecution case unless there are indications of fabrication. In the instant case, there is no indication of fabrication. 15. In the above facts and circumstances, I find that prosecution has fully establish the charges against the appellants beyond all reasonable doubt and the learned trial Court has rightly convicted the appellants for the offences charged. Thus, I do not find any material to interfere with the conviction of the appellants for the offences charged. 16. So far sentence is concerned, the learned counsel appearing for the appellants submitted fairly that the appellants are in custody since 14-9-1992 and 12-12-1992 and they have already been in custody for more than seven years and they have been sufficiently punished. From perusal of the record, it is clear that all the appellants are in custody for more than seven years in the instant case. From perusal of the record, it is clear that all the appellants are in custody for more than seven years in the instant case. In the above facts and circumstances, I find that the period already undergone by the appellants will be proper and reasonable for the ends of justice in the instant case. Thus, the sentence awarded to the appellants is hereby reduced to the period already undergone by the appellants. 17. It appears that all the appellants are already in custody, hence all the appellants are directed to be released forthwith, if not, wanted in any other case. 18. In the result, the appeal is dismissed with the above modification in sentence only.Appeal dismissed.