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2003 DIGILAW 1248 (PAT)

Satyendra Singh v. State Of Bihar

2003-12-02

CHANDRA MOHAN PRASAD, R.N.PRASAD

body2003
Judgment Ram Nandan Prasad, J. 1. The appellants have preferred this appeal against the judgment and order dated 26/27.4.2000 passed by the 6th Additional District and Sessions Judge, Aurangabad in Sessions Trial No. 347 of 1999 whereby appellant, Satyendra Singh has been convicted for the offence under Section 304-B of the Indian Penal Code and sentenced to undergo rigorous imprison-ment for 14 years. He has further been convicted for the offence under Sec. 201 of the Indian Penal Code and sentenced to undergo rigorous imprison-ment for three years. Appellant, Babu Ram Singh has been convicted for the offence under Sec. 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. 2. The prosecution case, in short, is that one Birja Singh gave his fard-beyan on 18.12.1994 at about 8.15 p.m. that his daughter Kamla Devi was married to Satyendra Singh, the appellant, about one and half years ago. Second marriage took place after five months. At the time of second marriage his sonin- law Satyendra Singh deman-ded a Hero Honda motor-cycle. He assured him to fulfil the demand. After four months of her second marriage he brought his daughter to his house. The people of the village Soni were not coming to his house. They were saying that unless demand of motor-cycle was fulfilled they would not come. His samdhi sent a message to send his daughter-in-law otherwise she would be deserted. On 11.12.1994 Vishwanath Singh of village Soni came to take Kamla Devi to her sasural. Vishwanath Singh disclosed that Satyendra Singh was saying that after fulfilling the demand of motor-cycle he would come to his house. On 12.12.1994 he sent his daughter to the house of his sonin-law. On 18.12.1994 a man of village Soni whom he did not recognise, came at about 5 p.m. and informed that his daughter has been killed by throttling by his son-in-law, his father, his mother and other family members and she has been burnt in the night itself. On getting information he went to village Soni but no one was at the house of his son-in-law. Bhikar Singh met him later on. He disclosed that his daughter fell ill in the night and died and the dead body was burnt in the night itself. On getting information he went to village Soni but no one was at the house of his son-in-law. Bhikar Singh met him later on. He disclosed that his daughter fell ill in the night and died and the dead body was burnt in the night itself. He learnt from the people of the village that Satyendra Singh, Babu Ram Singh, Vishwanath Singh, Bhikar Singh and Somariya Devi have caused death of his daughter by throttling in the night. 3. On the aforesaid fardbeyan, a formal First Information Report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted. On receipt of the charge-sheet cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants for the offence as indicated above. 4. The defence of the appellants was that marriage of appellant, Satyendra Singh, with Kamla Devi took place in the year 1991. His wife, Kamla Devi, died due to ailment. She was admitted in a private clinic of Dr. S.N. Basu on 17.12.1994 and she died on the next day. 5. The prosecution in support of its case examined 12 witnesses out of which PWs 1 to 8 are hearsay witnesses and all belong to village Khaira. PW 9 is informant of the case and he is also hearsay witness with respect to the occurrence. PW 10 proved the material exhibit I, i.e. ash mixed bone, and blouse. Ext. II PW 11 is an advocate clerk, who proved the First Information Report, Ext.3 and fardbeyan, Ext. 4. PW 12, Kapildeo Prasad Singh, proved the case diary paragraph Nos. 1 to 22 and supplemen-tary case diary paragraph Nos. 1 to 57. 6. The defence in support of its case also examined five witnesses. DW 1 is a doctor, who treated the deceased on 17.12.1994. DW 2 has been examined to show that marriage of Satyendra Singh with Kamla Devi took place in the year 1991 and he went to inform about the death to the informant. DW 3 proved the invitation card. Ext. D to show that marriage took place on 11.6.1991. DW 4 proved the deed of partition among the accused persons. DW 5 is an employee of DW 1, who proved the indoor register, Ext. F to show that the deceased was admitted on 17.12.1994. 7. DW 3 proved the invitation card. Ext. D to show that marriage took place on 11.6.1991. DW 4 proved the deed of partition among the accused persons. DW 5 is an employee of DW 1, who proved the indoor register, Ext. F to show that the deceased was admitted on 17.12.1994. 7. The appellants have been convicted for the offence under Secs. 304-B and 201 of the Indian Penal Code. To bring the case under the ambit of Sec. 304-B necessary ingredients are that the incident of murder must have taken place within seven years. The death was not in normal circumstances. Soon before the death she was subjected to cruelty, and harassment for demand of dowry and if these ingredients are brought on the record by the prosecution Sec. 113-B of the Evidence Act comes into play. It deals with presumption as to dowry death and says that when the question is whether a person has committed dowry death of a woman and if it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person has caused dowry death. If the prosecution succeeds in establishing the aforesaid ingredients then the burden shifts on the accused persons to establish themselves as innocent. However, if the prosecution fails to establish those ingredients to bring the case within the purview of Sec. 304-B of the Indian Penal Code then presumption u/s. 113-B of the Evidence Act shifts to the prosecution and it has to establish the case beyond all reasonable doubts. Keeping in mind the well settled rule of law we proceed to examine the evidence on record. 8. PW 9 is informant. His evidence is that his daughter Kamla Devi was married to Satyendra Singh. After five months of the marriage second marriage took place. At that very time his son-in-law, Satyendra Singh made a demand of motor-cycle and he promised to fulfil the demand. After five months of the second marriage her daughter returned to his house. Vishwanath Singh came to take his daughter to her husband place and she went with him to her husband house. One person after five days informed that her daughter has been killed by her husband and his family members. After five months of the second marriage her daughter returned to his house. Vishwanath Singh came to take his daughter to her husband place and she went with him to her husband house. One person after five days informed that her daughter has been killed by her husband and his family members. He went to village Soni where he learnt that her husband and his family members have killed his daughter. In the First Information Report itself nothing has been stated that his daughter was ill- treated/harassed by the son-in-law or his family members. PW 9 in his evidence also does not say about harassment by son-inlaw or his family members. However, in cross examination the witness stated that demand of motor cycle was made to his wife and his wife disclosed about the demand. His wife has not been examined in the case. Therefore, it is evident that demand was not made to PW 9 by his son-in-law. With respect of allegation of killing also the witness is not an eye-witness and has deposed that when he went to village Soni he learnt from the villagers that his daughter has been killed by his son-in-law and his family members. The witness did not disclose the name of such persons who disclosed about the killing at village Soni. It further appears that the witness did not disclose the name of the person who came to inform him about the death of his daughter. Therefore, on examina-tion of his evidence it appears that the witness is hearsay on the point of killing as well as the demand. 9. PWs 3, 4, 5, 7 and 8 are hearsay witnesses. They are not claiming that they had seen the commission of offence or any demand was made in their pre-sence. They deposed that the members of the informants family were weeping and as such they went there and learnt from them that Kamla Devi was killed by her husband and his family members for not giving motor-cycle as demanded by her husband. 10. PW 1 is younger sister of the deceased. She deposed about the marriage of Kamla Devi with the appellant, Satyendra Singh, and also with respect to second marriage. She said that at the time of second marriage Satyendra Singh, the husband of Kamla Devi made a demand of motor-cycle. Her father assured him to give motor-cycle later on. 10. PW 1 is younger sister of the deceased. She deposed about the marriage of Kamla Devi with the appellant, Satyendra Singh, and also with respect to second marriage. She said that at the time of second marriage Satyendra Singh, the husband of Kamla Devi made a demand of motor-cycle. Her father assured him to give motor-cycle later on. Kamla Devi came from her sasural after a few months to her parents house. She told her to fulfil the demand of motor-cycle otherwise she would be killed. Dilip Kumar, PW 2 after return also stated to the aforesaid effect. Her father had gone to village Soni and he returned back and disclosed about the incident. At the time of marriage Kamla was reading in class VII. One person of village Soni came and informed about the death. On information her father alone had gone to village Soni. The same evidence is of PW 2 the brother of the deceased. He stated in his evidence about the death of Kamla Devi, his sister. His evidence is that Kamla Devi was a literate lady. She used to write letters to him but the witness did not say that she ever made any complaint of misbehaviour by her husband and his family members. However, the witness stated in his cross examination that his father on information alone had gone to village Soni and learnt about the killing by the accused persons. However, the witness did not disclose the names of the persons from whom he learnt about the killing nor disclosed the name of the person who came to inform about the death. The witness, however, stated in cross examination that he had gone to village Soni with his sister. There the accused persons had made a demand of motor- cycle and his sister had also asked him to fulfil the demand otherwise she would be killed. The witness stated that the aforesaid fact was disclosed to his father PW 9. Surprisingly, PW 9 has not stated a word about the aforesaid disclosure by PW 2. Therefore, in such a situation, the evidence of PW 2 has got no substance. 11. Moreover, the deceased was a literate lady and PW 2 has admitted that she used to write letters to him but she never informed about the torture, harassment or ill-treatment by her husband and his family members. Therefore, in such a situation, the evidence of PW 2 has got no substance. 11. Moreover, the deceased was a literate lady and PW 2 has admitted that she used to write letters to him but she never informed about the torture, harassment or ill-treatment by her husband and his family members. The fact is that there is no evidence on the record that the deceased ever made a complaint of torture, harassment or ill- treatment by her husband or his family members. Making the demand is not sufficient to bring the case under Sec. 304-B of the Indian Penal Code. There must be cruelty or harassment soon before the commission of crime for non-fulfilment of dowry. This ingredient is lacking in this case. The prosecution in fact could not be able to establish the required ingredients of Section 304-B of the Indian Penal Code. Therefore, in such a situation, presumption under Sec. 113-B of the Evidence Act will not operate against the appellants. 12. Now we proceed to examine the case whether prosecution has succeeded in establishing the case against the appellants. Obviously, there is no eye- witness to the occurrence. The wit-nesses examined are hearsay. Most of the witnesses stated that they learnt about the death from the people of village Soni. However, no person of village Soni was examined in support of its case. Some of the witnesses have deposed that they heard rumour about the occurrence. There is no direct evidence rather evidence brought on record is hearsay one. Learned counsel for the prosecution has pointed out that it is an admitted position that the deceased Kamla Devi was living with the appellants at the relevant time. Therefore, the appellants have to explain the death of Kamla Devi. In this regard it would be evident from the materials on record that suggestion was given to almost all the witnesses that she was ill and died because of illness. The suggestion was denied by the witnesses. The defence, thus, has adduced evidence in support of its case. DW 1 is a doctor. His evidence is that the deceased Kamla Devi was suffering from diarrhoea and she was admitted in his clinic on 17.12.1994. She was treated. However, she died on 18.12.1994 at 9 a.m. Indoor register has been proved and brought on the record. Death certificate has also been brought on record. DW 1 is a doctor. His evidence is that the deceased Kamla Devi was suffering from diarrhoea and she was admitted in his clinic on 17.12.1994. She was treated. However, she died on 18.12.1994 at 9 a.m. Indoor register has been proved and brought on the record. Death certificate has also been brought on record. The prescription has also been brought on the record. Therefore, it is evident that the defence has discharged its obligation in explaining the death of Kamla Devi. 13. Thus, on consideration as discussed above, we find that the prosecution has failed to establish its case and as such the order of conviction cannot be upheld. Accordingly, the appeal is allowed. The judgment and order of conviction and sentence are hereby set aside. Appellant No.1. Satyendra Singh, is in jail and as such he is directed to be released forthwith if not required in any other case. Appellant No. 2, Babu Ram Singh, is on bail. He is discharged from the liability of the bail bonds.