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2003 DIGILAW 1138 (PAT)

Kamata Prasad v. State Of Bihar

2003-11-05

INDU PRABHA SINGH

body2003
Judgment I.P.Singh, J. 1. Criminal Appeal Nos. 547 of 2002 and 610 of 2002 arising out of the same judgment are heard together and are being disposed of, by this common judgment. 2. The appellant Kamata Prasad of Criminal Appeal No. 547 of 2002 has been convicted under Sections 304-B, 498-A and 201 of the Indian Penal Code (in short the Code). He was sentenced to undergo R.i. for ten years under Section 304-B of the Code, two years under Section 498-A of the Code and also two years under Section 201 of the Code. However, ail the sentences were ordered to run concurrently. Appellants of Cr. Appeal No. 610 of 2002, namely, Reeta alias Gita Devi, Kameshwar Sah, Rajgrihi Sah and Visheshwar Sah were convicted under Sections 304-B, 498-A and 201 of the Code. They were sentenced to undergo R.I. for ten years under Section 304-B, two years under Section 498-A and also two years under Section 201 of the Code. 3. The prosecution case, in short, is that Bikramganj P.S. Case No. 176 of 1996 was instituted under Sections 304-B, 498-A and 201 of the Code against the appellants. The case was instituted on the basis of written report of the informant, Sitabo Devi (P.W. 3) dated 25.9.1996, stating therein that the informant had performed the marriage of her daughter Kalawati Devi (the deceased) with appellant Kamta Prasad, son of Ram Deyal Sah, resident of village-Ganj Bharasara. P.S. Dinara, Distt-Rohtas in the month of March, 1992. According to the informant, when her daughter went to Sasural, the appellant Kamta Prasad, his mother, namely, Yashoda Devi and brothers of Kamta Prasad, namely, Lalan Prasad, Visheshwar Prasad, Rajgrihi Prasad, Munmun Prasad, Kameshwar Prasad and their wives used to harass her daughter and they did not give food to her and subjected her to torture and harassment. It has been stated that sometimes even she was only allowed to live on water. It has been further stated that her daughter had written a letter to her stating about the torture and cruelty meted by her, photo copy of the said letter was also annexed with the written report. The appellant Kamta Prasad also used to demand motorcycle in dowry and threatened her not to keep her daughter properly till the demand is not fulfilled. The appellant Kamta Prasad also used to demand motorcycle in dowry and threatened her not to keep her daughter properly till the demand is not fulfilled. It has been also stated that all the appellants were torturing and harassing her daughter since March 1992, the time of marriage. It has been stated that when the son of the informant visited Ganj Pharasara during the Tij, the mother of Kamata Prasad told him that Kamta had gone out with his family. Coming to know the aforesaid facts through her son, the informant and her son visited Ganj Bharasara on 24.9.1996 for the verification of the whereabout and in Ganj Bharasara the villagers disclosed her that the accused persons have been performing Sradh of her daughter with her effigy. They have performed the Daswa on 24.9.1996 before them and Terhi has to be performed on 26.9.1996. The informant has also stated that the accused persons have eliminated her daughter and dumped her dead body to some unknown place and did not inform them about the death of her daughter. Her daughter was also blessed with a daughter, who is about three months old. 4. On the basis of the written report, police started investigation and on conclusion of investigation, the investigating officer submitted charge sheet in this case against the appellants. Accordingly, cognizance was taken and the case was committed to the Court of Session for trial. Ultimately, trial concluded with the result as indicated above. 5. The prosecution, in support of its case has examined altogether five witnesses. P.W. 1 is Chandra Shekhar Chaudhary. P.W. 2 is Om Prakash Singh. P.W. 3 is Sitabo Devi, who is the informant of the case. P.W. 4 is Laloo Prasad Gupta, who is the brother of the deceased, Kalawati Devi. P.W. 5 is Radhe Shyam Upadhya, he is the investigating officer of the case. 6. The defence has also examined altogether four witnesses. P.W. 1 is Vinod Chaudhary. D.W. 2 is Govind Ram. D.W. 3 is Rampati Ram and D.W. 4 is Dr. Awadh Bihari Gupta, he has examined the deceased. 7. P.W. 3, the informant and mother of the deceased has fully supported the case of the prosecution, as stated in her written report. The defence has also examined altogether four witnesses. P.W. 1 is Vinod Chaudhary. D.W. 2 is Govind Ram. D.W. 3 is Rampati Ram and D.W. 4 is Dr. Awadh Bihari Gupta, he has examined the deceased. 7. P.W. 3, the informant and mother of the deceased has fully supported the case of the prosecution, as stated in her written report. According to her, Kalawati Devi, daughter of the informant, was married with Kamata Prasad, son of Ram Dayal Sah, resident of village-Gani Bharasara, P.S.-Dinara, District-Rohtas in the month of March. 1992. According to her, when her daughter went to Sasural, the appellant Kamta Prasad, his mother, namely, Yashoda Devi and brothers of Kamata Prasad, namely, Lalan Prasad, Visheshwar Prasad, Rajgrihi Prasad, Munmun Prasad, Kameshwar Prasad and their wives used to thrash her daughter and they did not give food to her and subjected her to torture and harassment. It has been also stated that sometimes she was only allowed to take water. It has been further stated that her daughter had written letter to her stating about the torture and cruelty meted by her, photo copy of which has been annexed with the written report. The appellant and husband of the deceased Kamta Prasad also used to demand motorcycle in dowry and threatened not to keep her daughter well in absence of motorcycle. He had also sent a letter to this effect to his in-laws, which was also annexed with the written report. It has been stated that all the appellants were torturing and harassing her daughter since March 1992 from the time of marriage. According to the informant when her son visited Ganj Bharasara taking Tiz gifts the mother of Kamta Prasad told him that Kamta Prasad had gone out with his family (the deceased). Coming to know the aforesaid facts through her son, the informant and her son went to Ganj Bharasara on 24.9.1996 tor the verification of the said fact and in the village they could come to know by the villagers that the accused persons have been performing Sradh of her daughter with her effigy. They have performed Daswa on 24.9.1996 before them and Terhi has to be performed on 26.9.1996. The informant has stated that the accused persons have eliminated her daughter and dumped her dead body to some unknown place and did not inform them about the death of her daughter. They have performed Daswa on 24.9.1996 before them and Terhi has to be performed on 26.9.1996. The informant has stated that the accused persons have eliminated her daughter and dumped her dead body to some unknown place and did not inform them about the death of her daughter. Her daughter was blessed with a daughter, who was about three months old. 8. P.W. 4. Laloo Prasad Gupta, who is the brother of the deceased has also supported the prosecution story. According to him his sister was married with one Kamta Prasad of Vill-Ganj Bharasara. When his sister went to her Sasural, all the appellants started torturing her for motorcycle in dowry. Her sister had sent a letter to her mother stating therein about the demand and torture meted to her by the appellants. He has also stated that the appellant Kamta Prasad, husband of the deceased had also sent a letter to him demanding he motorcycle in dowry which had been annexed with the written report. According to him once he had gone to the Sasural of her sister but the appellants did not allow him to meet her and demanded motorcycle and he had to return unsuccessfully. On the eve of Tij, when he went to Ganj Bharasara, he was told by the mother of Kamta Prasad that Kamta Prasad had gone out of the village with his family. According to him, when he went to village-Ganj Bharasara second time with his mother on 24.9.1996, he came to know that his sister has died and appellants were performing Daswa on that very day by burning the Effigy of his sister and Terhi was to be performed on 26.9.1996. According to him. he then reached the Police Station and the case was lodged. He has also stated that he knows all the appellants. 8A. P.W. 1, Chandra Shekhar Chaudhary has not supported the case of the prosecution and P.W. 2, Om Prakash Singh has been tendered. P.W. 5, Radhey Shyam Upadhya, the investigating officer of this case has also supported the prosecution version. According to him, on 25.9.1996, he was posted as Sub-Inspector of Police in Dinara Police Station. He was entrusted with the investigation of the case. According to him, he started the investigation and recorded the statements of the informant and the witnesses on 26.9.1996. He also visited the Place of occurrence. According to him, on 25.9.1996, he was posted as Sub-Inspector of Police in Dinara Police Station. He was entrusted with the investigation of the case. According to him, he started the investigation and recorded the statements of the informant and the witnesses on 26.9.1996. He also visited the Place of occurrence. He has given full description of the place of occurrence. He raided the house of the accused persons but they were absconding. He arrested other appellants Kameshwar Sah and Raj Girhi Sah and sent them to jail and also executed the process of attachment against the absconding accused persons. Thereafter, he submitted charge sheet against the appellants. 9. Learned counsel for the appellants has submitted that the deceased died due to ailment of Appendicitis and there is no evidence that soon before her death she was tortured and harassed by the accused persons. It has been also submitted that the information about her death was given to the informant. It has been also submitted that the deceased Kalawati Devi was living with her husband and no such occurrence took place and she died of natural death, as D.W. 4 Dr. Awadh Bihari Gupta has stated in his examination. P.W. 4 has examined the deceased and has supported this fact. As such, conviction under Sections 304-B, 498-A and 201 of the Code against the appellants is not sustainable in the eye of law. 10. In this case. altogether five prosecution witnesses have been examined out of which P.W. 1 has not supported the case of the prosecution and P.W. 2 has been tendered but P.Ws. 3 & 4 who are mother and brother of the deceased have fully supported the case of the prosecution. They are the most competent witnesses to prove the marriage of the deceased, the demand Of dowry by the appellants including the husband of the deceased and also to say whether the deceased was subjected to cruelty and harassment for non fulfilment of the dowry demand. P.W. 3 Sitabo Devi mother of the deceased has stated in her deposition that her daughter was not even provided with food properly. She has also stated that for eight days, her daughter was not given anything to eat. According to her it was all because motorcycle was not given to the appellant Kamta Prasad. P.W. 3 Sitabo Devi mother of the deceased has stated in her deposition that her daughter was not even provided with food properly. She has also stated that for eight days, her daughter was not given anything to eat. According to her it was all because motorcycle was not given to the appellant Kamta Prasad. She has also stated that her daughter wrote a letter to her about the torture meted to her and even the information of death was not sent to her. P.W. 4 brother of the deceased has also supported the version of the P.W. 3 his mother. As such, it is a case of unnatural death of woman within seven years of her marriage. It has been also proved that there was demand of dowry and for non fulfilment of the same, the deceased was being tortured by her husband. In the facts of the case, it is a dowry death and Section 113-B of the Law of Evidence will be applicable in this case where the burden of proving the circumstance of death is on the accused. Otherwise it would be presumed that it was dowry death committed by the accused persons. Though four defence witnesses have been examined including D.W. 4 Dr. Awadh Bihari Gupta who had examined the deceased. He has stated that the deceased died in course of treatment due to Appendicitis. He has also stated that he had issued certificate of the said fact which had been exhibited in Trial Court. According to him, he had given the information to the Police but there is nothing on record to show that any information had been given about the death of the deceased to the Police, even no information of her death was given to her mother (P.W. 3). That apart, the accused persons had performed Daswa and Terhi by burning effigy of Kalawati Devi, the deceased, which goes to show the nefarious motive and conspicuous character and intention of the accused persons. Not only that this also goes to contradict the stand of defence about her death due to ailment and falsify the evidence of defence witnesses. The Court below after appreciation of evidence so adduced convicted the appellant Kamta Prasad, husband of the deceased. under Sections 304-B and 498-A and also under Section 201 of the Code. Not only that this also goes to contradict the stand of defence about her death due to ailment and falsify the evidence of defence witnesses. The Court below after appreciation of evidence so adduced convicted the appellant Kamta Prasad, husband of the deceased. under Sections 304-B and 498-A and also under Section 201 of the Code. However, since the demand of motorcycle was by the appellant Kamta Prasad which was useful for him, as such the appellant Kamta Prasad was mainly responsible for the demand of dowry and torture on that account. There is no specific role of other appellants in this regard and it is the husband who was responsible for safeguarding the interest of his wife which also he failed to do. As such. in such circumstances, when there is no specific role attributed against other accused persons and the allegation has not been proved against them, it could safely be held that the husband Kamta Prasad was solely responsible for demand of dowry of motorcycle and for which he got his wife tortured and eventually she died a unnatural death in mysterious situation. As such, the appellant Kamta Prasad is only liable for the offence punishable under Sections 304-B, 498-A and 201 of the Code. Thus. the conviction and sentence passed by the Court below under the aforesaid Sections against the appellant Kamta Prasad is upheld. 11. However, as there is no specific allegation or direct evidence of torture and demand of dowry against the other accused persons, they are acquitted of charges under Sections 304-B and 498-A of the Code. However, it appears that they had helped the appellant Kamta Prasad in disposing of the dead body of the deceased Kalawati Devi, as such, they are very much liable for the offence punishable under Section 201 of the Code. Accordingly, their conviction and sentence passed under Section 201 of the Code imposed by the Court below is upheld. 12. In the result, Criminal Appeal No. 547 of 2002 filed on behalf of appellant Kamta Prasad is dismissed. Criminal Appeal No. 610 of 2002 filed on behalf of appellants Rita alias Gita Devi, Kameshwar Sah, Raj Grihi Sah and Visheshwar Sah is partly allowed.