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2001 DIGILAW 912 (PAT)

Sheoji Sah v. State Of Bihar

2001-09-25

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The sole appellant has preferred this appeal against the judgment and order dated 14.6.1995 passed by 1st Addl. Sessions Judge. Sitamarhi in S.T. No. 115/94 whereby the appellant has been convicted for the offence under Secs. 302 and 304-B. IPC and sentenced to undergo imprisonment for life for the offence under Sec. 302, IPC. No separate sentence has been awarded for the offence under Sec. 304-B. IPC. The appellant has further been convicted for the offence under Sec. 498-A. IPC and sentenced to undergo rigorous imprisonment for two years. The appellant has further been convicted for the offence under Sec. 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for two years. Sentences were ordered to run concurrently. 2. Moti Lal Sah gave a written report on 16.7.1993 at about 11 a.m. to the Officer-in-Charge of Sitamarhi PS stating inter alia therein that his daughter Bibha Devi was married five years ago with one Sheoji Sah son of Jagernath Sah according to the Hindu rites. After marriage his son-in-law Sheoji Sah made demand of Colour T.V. and if Colour T.V. is not given he threatened to marry again. The demand was also made from his son Gunjan Kumar. When his son-in-law met him he also made such demand and threatened that if demand is not fulfilled he will kill his daughter. He was not in a position to fulfill his demand and as such his daughter Bibha Devi was being assaulted by him Bibha Devi also made such complaint to him. He next met father-in-law of his daughter and made complaint about the demand. He replied that if demand is not fulfilled he will marry his son with another girl. On 15.7.1993 one chaukidar of Bargania PS came and informed that his daughter Bibha Devi has been burnt to death. On information he went to Sitamarhi where he learnt that after post-mortem dead-body has been taken for cremation. He also went to cremation ghat and participated in cremation of his daughter. There was heavy rain and as such he could not go to Police Station. His claim is that his daughter has been burnt to death alter pouring K. Oil by his son-in-law Sheoji Sah, his Samdhi Jagarnath Sah and his wife Malkinia Devi because of non-fulfillment of demand. 3. There was heavy rain and as such he could not go to Police Station. His claim is that his daughter has been burnt to death alter pouring K. Oil by his son-in-law Sheoji Sah, his Samdhi Jagarnath Sah and his wife Malkinia Devi because of non-fulfillment of demand. 3. On the aforesaid fardbeyan a formal First Information Report was drawn, investigation was taken up and on completion of investigation chargesheet was submitted against three persons i.e., appellant his father and mother. On receipt of charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above, however, acquitted Jagarnath Sah and Malkinia Devi. 4. The defence of the appellant was that he had been falsely implicated in the case only on suspicion. No demand of colour T.V. was made. Bibha Devi was cooking meat on stove. The stove burst and she died in accidental fire. His house was also burnt in the same incident which was extinguished when the Fire-brigade came. 5. The prosecution in support of its case examined 12 witnesses, out of whom PWs 1, 2, 5, 6 & 7 are hearsay witnesses on the question of committing murder. PW 8 is the informant and he is also hearsay witness. PW 3 is boy aged about five years. He claimed to be eye-witness to the occurrence. PW 4 has been tendered. PW 9 is the Investigating Officer. PW-10 is Doctor who held post-mortem over the dead-body. PW 11 is Constable who gave information to the police on 15.7.1993 on whose statement U.D. case was registered. PW 12 proved the case diary. 6. From the aforesaid analysis it is evident that PW 3 is the only eyewitness to the occurrence. PW 8 is father of the deceased and is informant PW 1 is grand-mother of the deceased. PW 2 is Bhagina of the informant. PW 5 is mother of the deceased. PW 6 is neighbour of the appellant. PW 7 is brother-in-law of the informant. They are not eye-witnesses to the occurrence. However, their evidence is that Bibha Devi was married with the appellant. After marriage the appellant made demand of colour T.V. and due to non-fulfillment of demand he used to assault and torture the deceased. PW 3 is son of the deceased aged about five years. PW 7 is brother-in-law of the informant. They are not eye-witnesses to the occurrence. However, their evidence is that Bibha Devi was married with the appellant. After marriage the appellant made demand of colour T.V. and due to non-fulfillment of demand he used to assault and torture the deceased. PW 3 is son of the deceased aged about five years. The trial Court put questions to test the understanding of the witness. The trial Court has given certificate that witness is capable to understand. The question was put to PW 3 and he had given reply. The witness in his evidence said that his father the appellant, had tied the hands and legs of his mother poured K. Oil and thereafter she died. No, specific question was put about setting fire but the witness stated that his father killed his mother. The witness further stated that while his father was tying the legs and hands of the deceased, he raised alarm but no one came. Subsequently the witness stated that he started weeping. At the relevant time the mother was not making any protest. The witness stated that house was not burnt but accepted that Fire-brigade had come. The witness further stated that when fire was extinguished he saw his mother dead in the court-yard. On specific question the witness stated that his mother was burnt to death. 7. PW 9 is the Investigating Officer. His evidence is that on 15.7.1993 Vibhuti Sharma, Havildar, gave information at about 12.40 p.m. about fire in the house of the appellant in which Bibha Devi died, on the basis of which he registered U.D. Case No. 13/93. He inspected the place of occurrence and found the dead-body in the court-yard. He prepared inquest report and sent the dead-body for postmortem. On 16.7.1993 at 11 a.m. the informant gave written report on the basis of which formal First Information Report was drawn. He gave detailed narration of the place of occurrence and stated that he found the dead-body of Bibha Devi in the court-yard. Smell of K Oil was coming out. However, he learnt that Firebrigade had come and fire was extinguished. He recorded the statement of witnesses including PW 3 and stated that PW 3 did not say before him about puring K. Oil on the body of Bibha Devi nor he stated that the appellant tied her legs and hands. 8. Smell of K Oil was coming out. However, he learnt that Firebrigade had come and fire was extinguished. He recorded the statement of witnesses including PW 3 and stated that PW 3 did not say before him about puring K. Oil on the body of Bibha Devi nor he stated that the appellant tied her legs and hands. 8. Post-mortem was held by PW 10. He found burn injury to the extent of 95% on the person of the deceased. He also found digested food in the stomach and smell of K. Oil on the dead-body and opined that injury was caused by flame of fire and death was due to the injury found oil the person of the deceased. 9. PW 11 is Havildar. In his evidence he stated that at about 120 clock while he was returning from the Police Station he learnt about the fire. He went there and found that house was burning. People were trying to extinguish fire. Fire-brigade also came and extinguished the fire. When he entered the house he found the dead-body of a lady having burn injury. 10. From the evidence as discussed above it is evident that PWs. 1, 2 5, 6, 7 & 8 were not witness to occurrence but they have categorically stated with respect to demand and also torture by the appellant. PW 3 is the only eye-witness to the occurrence. He is child witness aged about five years. In the court the witness stated that hands and legs of his mother were tied by the appellant. He poured K. Oil and set fire causing death of the deceased. The Investigating Officer, PW 9 however, stated that aforesaid fact was not stated before him. Since the witness is child, there is chance of omission but merely because of such omission the evidence of witness cannot be discarded. In our view such evidence is also corroborated by the evidence of the Investigating Officer as the Investigating Officer who in his evidence before the court stated that he found smell of K. Oil coming out from the dead-body. The Doctor who held postmortem over the dead-body also stated that smell of K. Oil was coming out from the dead-body. In our view such evidence is also corroborated by the evidence of the Investigating Officer as the Investigating Officer who in his evidence before the court stated that he found smell of K. Oil coming out from the dead-body. The Doctor who held postmortem over the dead-body also stated that smell of K. Oil was coming out from the dead-body. It is case of the defence that she died in accidental fire i.e., while she was cooking the stove had burst and fire had caught the body but the Investigating Officer did not find any sign of damaged stove at the place of occurrence. In that view of the matter, the defence case does not appear to be probable. 11. The trial Court has convicted the appellant for the offence under Secs. 302 and 304-B, IPC but sentenced the appellant for the offence under Sec. 302, IPC only which, in our opinion. is not correct because of the fact that ingredient of Sec. 304B. IPC has been brought on record by the prosecution. From the discussion made above, it is evident that there was demand and torture because of nonfulfillment of demand and subsequently because of the same reason she was killed and as such conviction of the appellant for the offence under Sec. 302. IPC is converted into under Sec. 304-B. IPC. The case is based on the evidence of sole eye-witness PW 3. In the evidence there is some laches as indicated above. However, it has been pointed out by the learned counsel for the appellant that appellant is in jail for above 8 years. In our opinion, justice would be met if the sentence awarded is reduced to the period already undergone. 12. Accordingly, the appellant is convicted for the offence under Sec. 304-B. IPC and sentenced to the period already undergone. The appeal is dismissed with modification as indicated above. The appellant is in jail and as such he is directed to be released forthwith if not required in any other case.