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2003 DIGILAW 1050 (PAT)

Rajendra Prasad v. State Of Bihar

2003-09-25

B.N.P.SINGH, S.N.JHA

body2003
Judgment B.N.P.Singh, J. 1. Though Asha Lata Kumari alias Guddi wedded to one Arun Kumar, the appellant, had been blessed with a child, her happiness was quite short lived, as it was alleged that shortly a year had passed after her marriage, that the in-laws began to torture Guddi for failure of her parents to make provision of sufficient dowry to them. She at times was driven out of the matrimonial house and had gone to her parents. She had Complained to them about her sufferings and torture. Information of tragic end of Guddi allegedly by strangulation was communicated to the parents by one Madhusudan Prasad Singh (P.W. 2), pursuant to which mother of the deceased having got information confirmed about sad demise of her daughter, took recourse to public authority and set the criminal law in motion by filing a written complaint before the Officer Incharge of Hilsa Police Station. As usual, investigation commenced during which the Police officer entrusted with onerous task of investigation recorded statement of witnesses. visited place of occurrence and on conclusion of investigation, laid charge sheet before the Court. At trial that followed, the State examined seven witnesses who are father of the deceased, Police Officer, Judicial Officer and also host of other witnesses who somehow or the other expressed their familiarity with the incident. Defence too examined four witnesses ostensibly to counter accusations attributed to the appellants about their complicity and killing of the deceased. State had also sought to bring on record a letter allegedly written by Rajendra Prasad to the father of the deceased. 2. Defence of the appellants was that Guddi died natural death in her in-laws house as she died due to diarrhoea and it was in course of treatment that she breathed her last for which we have noticed that defence had also chosen to examine some witnesses. Trial court, however, on negativing plea of innocence of the appellants recorded finding of guilt and convicted the appellants under sections 304, 498A and 201 of the Indian Penal Code (IPC) and though the appellants were sentenced to suffer life imprisonment for their conviction under section 304B IPC, no separate sentence was awarded to them for their conviction either under section 498A or 201 IPC. 3. 3. Since manifold contentions were raised at Bar on behalf of the appellants to assail the findings recorded by the court below, we propose to discuss testimony of witnesses with brevity to appreciate the contentions raised. Uma Chand Prasad (P.W.1), father of the deceased states that Guddi had been tortured by the in-laws for his failure to make provi sion of sufficient dowry to them and whenever she came to her parents house, she expressed her woes to them. After he was informed about the incident, by Sunil Kumar, his nephew, he had visited village Hasanpur where Guddi was married, when a large number of persons of the village had confirmed killing of Guddi by the appellants. Credibility of this witness can best be judged on narration made by none else but this witness alone. Guddi was residing with her husband at Patna for last two years. On his own showing, he had no occasion to visit her residence. But, for his knowledge about suffering of Guddi, the witness says that she used to write letters to them. As for information received from Guddi herself, the witness says that about 2-1/2 years preceding May, 1998, when the witness was examined in Court, she had complained about her relation having got strained with her husband. The witness in no uncertain terms would acknowledge Guddi having not complained about demand made by her in-laws in her letter which she had written to her parents. However. this witness states that letters written by Guddi reflected that she had sufferings in her in-laws house. Though the witness states to have made over those letters to the Investigating Officer during investigation, allegedly written by Guddi to him, a xerox copy of which had also been given to the senior Police Officer, the Investigating Officer would negate such assertions made by the witness about receipt of any letter allegedly written by Guddi made over to him by her parents. Though the witness had knowledge about suffering of Guddi in in-laws house, he acknowledged that he had not taken recourse to public authority, though he visited at times, village Hasanpur where Guddi was married and had also made inquiries about her suffering from persons, but no details of his visit to village Hasanpur was available with him, and on these premises contentions were raised on behalf of the appellants that though father was most concerned person about suffering of his daughter, his evidence suffered vital infirmities which did not make him credible. 4. The other witness examined by the State about suffering of the deceased and also about some sort of information having been rendered to the mother of the deceased about killing of Guddi, was Madhusudan Prasad (P.W.2). This witness, as he states, had been to village Hasanpur where his sister was married, on 27.9.1997, when on hearing alarm emanating from the house of Rajendra Prasad, he visited his house. He found Asha Lata alias Guddi lying dead with tongue protruded, and black scar on the neck. The appellants toowere standing there with suspicious postures who took the dead body, the same night for cremation. This witness too states about torture allegedly meted out to Guddi by the in-laws for failure of her parents to make provision of sufficient dowry to them, Though he visited village Hasanpur many a times, he had his meeting with Asha Lata only once when she did not make any complaint to him about her suffering or torture meted out to her in-laws. But It could gauge that Asha was not happy in her matrimonial house. We may state that happiness or sorrow of a person is a state of mind which may be for various reasons, and if Asha looked unhappy, that did not necessarily mean that it was for the torture meted out to her by the in-laws and that too for failure of her parents to make provision of sufficient dowry to them. 5. Even mother of the deceased stated that Madhusudan Prasad Singh (P.W. 2) had visited village Hasanpur many a times but he too did not carry any message to the parents about suffering of Guddi, even though he happened to be their relation. 5. Even mother of the deceased stated that Madhusudan Prasad Singh (P.W. 2) had visited village Hasanpur many a times but he too did not carry any message to the parents about suffering of Guddi, even though he happened to be their relation. Response of this witness to many questions put by the defence eloquently suggests that though he claimed to have visited house of Guddi twice, he was not even conversant with the physical feature of her house. One most glaring infirmity which has crept in his evidence and which makes him incredible was that though he claims to have visited house of Guddi in the night of 27.9.1997, when he saw Guddi dead with tongue protruded and black scar on the neck and he returned to his village, the following day, it was not before 30.9.1997, that he informed mother of the deceased about her death. He did not even take recourse to public authority, and that apart he had not even informed villagers about death of Guddi for three days and all these goes against natural conduct of a person who was none else but a relation of the deceased. The claim of Madhusudan Prasad had to be rejected for other reasons too. The Investigating Officer says that this witness did not make any parallel statement before the Police during investigation about his presence in the night of the incident in village Hasanpur or he having seen Guddi dead with his naked eyes with tongue protruded and a black scar on the neck, and appellant standing there with suspicious posture. 6. Now we may advert to the evidence of Smt. Girija Devi (P.W. 3) who happens to be none else but the mother of the deceased and she says that appellant Arun Kumars behaviour towards Guddi was not fair who had been torturing her and had also driven her out from house for their failure to make provision of sufficient dowry to them, and had eventually killed her. On her own showing, Asha Lata remained in her in-laws house for one year and she had been visiting her parents house off and on but no detail of dates was available with the witness when she had been to her parents house to make complain about her .suffering. 7. On her own showing, Asha Lata remained in her in-laws house for one year and she had been visiting her parents house off and on but no detail of dates was available with the witness when she had been to her parents house to make complain about her .suffering. 7. Though the mother says that her husband too had been visiting Asha Lata regularly in her in-laws house but the husband does not claim so, as we have seen him stating that he met Asha Lata only once when she had not made complain about her suffering to him. She could not say as to when Asha was driven out of the house of the in-laws. 8. We have noticed witness stating that after marriage, Guddi remained with her parents for 1-1/2 years and thereafter she remained with her husband at Patna for more than a year. Girija Devi, mother of the deceased never visited residence of Guddi at Patna there being no occasion for Guddi for communicating her woes to her mother, as witness states that no member of her family ever visited residence of Guddi at Patna. Had there been complaint of torture by Guddi to her, parents were expected to have visited her house to explore possibility of restoration of good feeling between the spouse and also for redressal of her grievance but as the witness says, none of her family member ever visited house of Guddi for about two years. The witness could not speak about details of date when any demand for dowry was made by the in-laws. Even when the witness was informed about killing of deceased on 30.9.1997, it was only after four days. that she informed her husband and that too goes against natural conduct of the mother of the deceased. The Investigating Officer says that this witness had not made parallel statement before him about in-laws being not cordial to Guddi who had driven her out of their house. 9. We may take notice of evidence of Paras Nath Prasad (P.W. 5) and Sunil Kumar (P.W. 7) also, as both of them claimed to have visited house of Munshi Prasad in the night of 27.9.1997 when on alarms emanating from house of Rajendra Prasad, they visited his house, found Guddi dead with protruded tongue and black scar on neck. 9. We may take notice of evidence of Paras Nath Prasad (P.W. 5) and Sunil Kumar (P.W. 7) also, as both of them claimed to have visited house of Munshi Prasad in the night of 27.9.1997 when on alarms emanating from house of Rajendra Prasad, they visited his house, found Guddi dead with protruded tongue and black scar on neck. Evidence of these two witnesses appears to be in line with Madhusudan Prasad. Paras Nath Prasad (P.W. 5) did not identify Niranjan Prasad though he claims to have seen this appellant, in his house in the night of the incident. Though this witness claims to have visited house of the appellants four times, he was not even conversant with the physical features of her house, and similar was the case with Sunil Kumar (P.W. 7). Though Rajendra Prasad happens to be his relation, it is quite unusual to find that he did not stay in his house and preferred to stay in the house of Munshi Prasad with whom he was not even conversant from before. The witness acknowledges that they had no concern with Munshi Prasad nor had any business with him. It was only on 27.9.1997 that he had become familiar with Munshi Prasad with whom he had stayed. Narrations made by this witness eloquently suggest that he had no occasion to be at the house of Munshi Prasad in the night of incident, and as such narrations were made by this witness only to show his familiarity with the killing of Guddi in in-laws house. Though this witness had talks with many persons in the house of Guddi when he visited there, he could not name them nor could name the persons who knocked the door of Guddi and got it opened. Though the witness claims that he went to inform Girija Devi on 30.9.1997, none of her family members were available in the village, but no where evidence of Sunil Kumar or Girija Devi would suggest whereabout of Girija Devi or her family members during the period 28.9.1997 to 29.9.1997. As for Sunil Kumar also, though we have noticed witness stating that he visited village Hasanpur 2-3 times, no details of date was available with him. This witness too was not conversant with physical features of the house of the appellant. As for Sunil Kumar also, though we have noticed witness stating that he visited village Hasanpur 2-3 times, no details of date was available with him. This witness too was not conversant with physical features of the house of the appellant. Though Munshi Prasad happens to be his class mate, he acknowledges that he visited his house only once and similar reason would apply in his case also for his visiting house of Munshi Prasad to make him a witness about death of Guddi in the night of incident. Though this witness stayed in the house of Munshi, he was not conversant with any family members of Munshi Prasad. Though he met many persons in the village, he could not name any one of them from whom he could get knowledge about the incident. 10. Evidences placed on the record do suggest that witnesses were also examined by Judicial Magistrate under section 164 of the Code of Criminal Procedure but simply their examination by the Judicial Magistrate did not make any assurance about credibility of the witness, as it may be only with purpose of ascertainment of their assertion made by the witness during investigation by the Police. 11. As we have noticed, one letter was also sought to be introduced at the trial by the prosecution allegedly writter by Rajendra Prasad. This letter was brought on the record simply because the defence had cross examined the witnes on this issue, and as was stated by the Investigating Officer, this letter was new made available to him by parents of the deceased, and it was for the first time trial that prosecution sought to introduce this letter, genuineness of which was every open to question. There has been not finding of any expert, that the writing allegedly that of Rajendra Prasad wa compared with the admitted signature the writer. 12. Apart from those defence witnesses who were examined by the witness, even the Investigating Officer acknowledged that a number of witnesses including Lakhan Prasad, Krishna Prasad Shankar Prasad, Sachchidanand Prasad and Lallu Prasad had stated about death of Guddi in her in-laws house due to diarrhoea. As was stated by the Investigating Officer no witness of villag Hasanpur ever stated about killing of Guddi by the in-laws for failure of parents to make provision of sufficient dowry. 13. As was stated by the Investigating Officer no witness of villag Hasanpur ever stated about killing of Guddi by the in-laws for failure of parents to make provision of sufficient dowry. 13. Though the husband was posed to explain circumstance of his wifes death, but yet initial burden was on the prosecution to bring home the guilt beyond reasonable doubts. We are quite conscious that to bring the case under the mischief of Section 304B IPC, it must be shown by the prosecution that there had been torture of the deceased relating to demand of dowry and that must be before her death. We may profitably refer to a decision of the Apex Court reported in the case of Satvir Singh and others vs. State of Punjab and another (2001)8 SCC 633 in which following observations were made by the Apex Court :- "It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death." 14 We are constrained to hold that there has been no explicit evidence on the record about period when such demands were made by the in-laws or even there being any proximity between death of Guddi and torture allegedly meted out to her for failure of the parents to make provision of sufficient dowry to them. Though evidence of witnesses has suffered vital infirmity which we have just noticed, in view of these ingredients having not been satisfied, we are afraid that the finding of guilt recorded by the court below, finding appellants guilty under section 304 B IPC can be sustained. As for their conviction under section 498A IPC, we have noticed that evidence in that regard had not been clinching to persuade one to believe about harassment caused to Guddi by the in-laws at a particular time. As for their conviction under section 201 IPC, barring some narrations made by two witnesses that the appellants took the dead body of the deceased after death, there has been no other good evidence that it was with oblique object. It may be a lapse on part of the in-laws that they might not have informed the Police about her death but that was not sufficient to saddle the appellants with the consequence for which they were made answerable at trial. 15. Having bestowed our anxious and deepest consideration to the evidences placed on the record, we are of the view that findings recorded by the court below cannot be sustained in law and in that view of the matter, we set aside the conviction and also sentence awarded to the appellants by the trial court. Since appellants Rajendra Prasad, Nanki Devi, Niranjan Prasad, Rekha Devi and Paras Thakur in Cr. Appeal No. 463 of 1999 are on bail, they are discharged from the liability of their bail bonds. Since appellants Rajendra Prasad, Nanki Devi, Niranjan Prasad, Rekha Devi and Paras Thakur in Cr. Appeal No. 463 of 1999 are on bail, they are discharged from the liability of their bail bonds. Since appellant Arun Kumar happens to be in custody in Cr.Appeal No. 481 of 1999, we direct that he be set free forthwith, if not wanted in any other case. Both the appeals, in the result, succeed. S.N.Jha, J. 16 I agree.