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2003 DIGILAW 382 (PAT)

Madan Paswan v. State Of Bihar

2003-04-03

CHANDRA MOHAN PRASAD

body2003
Judgment Chandra Mohan Prasad, J. 1. This appeal is directed against the judgment dated 17.10.2001 of the Presiding Officer, Fast Track Additional Court No. II, Patna in Session Trial No. 876 of 1989/1978 of 2001, whereby the appellant has been convicted Under Sec. 304-B of the Indian Penal Code and sec. 4 of the Dowry Prohibition Act and sentenced respectively to undergo R.I. for ten years and one year under the said sections. 2. It appears that including the appellant originally there were four accused persons before the learned trial Judge and they all were charged Under Sections 302/34, 201 and 304-B of the Indian Penal Code and 3/5 of the Dowry Prohibition Act but after trial the other three accused persons were acquitted of all the charges and the appellant was also acquitted of the charge u/s. 201 of the Indian Penal Code, 1860 but he has been convicted and sentenced as indicated above. 3. The prosecution story as set out in the Fardbeyan of the informant Arjun Paswan is that he had married his daughter Meena Kumari (deceased) to the appellant Madan Paswan on 19.5.1986 and the Ruksati was done on 14.2.1989 when Meena Devi (deceased) had gone to her Sasural at Sabajpura with the appellant. It is further said that on 14.3.1989 when the informants son Jitendra Kumar went to meet his sister at her Sasural the appellant and other accused persons who were the father-in-law, mother-in-law and brother-in-law of the deceased did not allow him to meet her and they also abused him, Jitendra Kumar came back to his house and informed his father and mother. Then it is said that on the next day i.e. on 14.3.1989 the informant himself went to meet his daughter at her Sasural but the appellant and other accused persons (who have already been acquitted) did not allow him to meet her and also abused him. The informant stated in the Fardbeyan that his son-in-law Madan Paswan (appellant) was also demanding gold ring, T.V. and vehicle and he had threatened with dire consequences that if the demand is not met, hence, the informant suspected that his daughter had been killed and disappeared and prayed for legal action by the police. On the basis of the Fardbeyan a case was registered by the police and after investigation police submitted charge sheet and the trial was completed. 4. On the basis of the Fardbeyan a case was registered by the police and after investigation police submitted charge sheet and the trial was completed. 4. During the trial the prosecution examined only three witnesses. P.W. 1 is Arjun Paswan informant himself, P.W. 2 is the informants son Jitendra Kumar and P.W. 3 Dhurpati Devi is the mother of the deceased. 5. The accused had examined one defence witness namely Gangesh Paswan (D.W. 1). The defence story is that on 7.3.1989 in the night the deceased Meena Kumari was suffering of Diarrhoea and she was being taken to a doctor for treatment at Dulhinbazar but in the way she died. D.W. 1 has deposed that when she died in the way the dead body was brought to her Sasural in the night and on being informed by Siddhi Paswan father-in-law of the deceased (he) D.W. 1 had gone to inform the informant the deceaseds father in the day time on 8.3.1989 and he had informed him there and asked him to come to Sasural village. He (informant) told him (P.W. 1) to proceed saying that he (informant) is following him. But he did not come till the people of Sasural village had cremated the dead body on 8.3.1989. P.W. 1 Arjun Paswan says in his examination-in-chief that the marriage had taken place on 19.5.1986 and the Ruksati was done on 14.2.1989. At paragraph 2 of his evidence he says that at the time of Ruksati the appellant had demanded a gold ring, T.V. and scooter saying that he will agree for Ruksati only when these things are given to him. But on being persuaded by the Barati he had conceded and he had taken away his daughter on Bidagari to her Sasural house. It is further said that on 13.3.1989 his son Jitendra had gone to meet his sister (deceased) but the appellant and other accused (already acquitted) did not allow him to meet her and they said that unless gold ring, T.V. and scooter is given he would not be allowed to meet her, therefore, Jitendra had returned back and communicated this to the informant. Then the informant further says that on the next day i.e. on 14.3.1989 he himself went to meet his daughter at her Sasural but the accused persons again demanded those articles from him in dowry. Then the informant further says that on the next day i.e. on 14.3.1989 he himself went to meet his daughter at her Sasural but the accused persons again demanded those articles from him in dowry. The informant says that he suspected that his daughter has been killed and he also learnt there thaf5/7 days ago his daughter had been killed by the Sasural people and the dead body was thrown into the river. He (informant) denied suggestion that the deceased had died of Diarrhea and the accused had informed him about the death. 6. P.W. 2 Jitendra Kumar is the informants son had deposed about going to his sister on 13.3.1989 and about refusal of the accused persons not allowing him to meet his sister (deceased) and about the demand of gold ring, T.V. and scooter by the accused persons. He says that he had returned to his house and intimated the happenings to his father (informant). At page four of his cross-examination he (P.W. 2) deposed that he had never visited the Sasural of Meena Kumari before 13.3.1989. He has also deposed that at Sabajpura village there are 15-20 houses and he has not told anybody of that village about the refusal. He has also deposed that his house situates in Wazirpur Panchayat and that the house of the Mukhiya situates at a distance of ten bighas from his house and the house of Sarpanch is situated at distance of one kilometre but he had never informed the Mukhiya or Sarpanch about the happenings. 7. P.W. 3 Dhurpati Devi is the mother of the deceased. She says in her evidence that three years after the marriage the Gouna of her daughter (deceased) was done and she had gone to her Sasural. She further says that 15 days after Gauna her son Jitendra Kumar had gone to meet his sister at her Sasural house at Sabajpura but he was not allowed to meet her. She also says that the appellant had demanded scooter, T.V. and gold ring saying that unless these things are given any meeting would not be allowed there. She also said that subsequently her husband (P.W. 1) had also gone to Sabajpura village and he had learnt that the accused persons had killed her daughter (deceased) and had disposed of her dead body in the river. She also said that subsequently her husband (P.W. 1) had also gone to Sabajpura village and he had learnt that the accused persons had killed her daughter (deceased) and had disposed of her dead body in the river. Admittedly the P.W. 3 has learnt these happenings from her son who has visited the Sasural house and those evidence have been discussed above. At paragraph 2 of the cross-examination the mother (P.W. 3) says that between the period of marriage and Gauna her son-in-law (appellant) had never come to her house. At paragraph 4 she deposes that her daughter (deceased) had not sent any letter to her from her Sasural. At paragraph 6 at her cross-examination she deposes that at the time of marriage her son-in-law (appellant) had not demanded anything. 8. The appellant has been convicted u/s. 4 of the Dowry Prohibition Act for demanding dowry and he has also been convicted u/s. 304-B being responsible for dowry death. Now this has to be considered whether the prosecution has been able to prove the charges beyond shadow of doubt to the hilt of the accused. 9. Originally four accused persons were charged for these offences including the offences Under Secs. 302/34 and 201 of the Indian Penal Code but the learned trial Judge has felt insufficiency of the evidence regarding the other accused persons and they were acquitted. The appellant was also acquitted of the charge Under sec. 201 of the Indian Penal Code, 1860 . 10. The learned Counsel for the petitioner argued that the evidence brought by the prosecution is not sufficient evidence and has not been able to prove the charges. He has also argued that there are serious infirmities and contradictions in the evidence of the witnesses. 11. Firstly the charge u/s. 4 of the Dowry Prohibition Act is taken up for discussion. The prosecution alleges that the accused had demanded dowry. The learned Additional Public Prosecutor submitted that there is specific allegation on the appellant that he had demanded gold ring, T.V. and scooter in dowry. As to the evidence brought by the prosecution the father of the deceased (P.W. 1) says in his examination-in-chief that at the time of Ruksati gold ring, T.V. and scooter was demanded by the appellant Madan Paswan but on being persuaded by the Baratis the Ruksati was performed. This shows that the demand was not insisted. As to the evidence brought by the prosecution the father of the deceased (P.W. 1) says in his examination-in-chief that at the time of Ruksati gold ring, T.V. and scooter was demanded by the appellant Madan Paswan but on being persuaded by the Baratis the Ruksati was performed. This shows that the demand was not insisted. The learned APP argued that no doubt the demand was not insisted at that time but it has continued at subsequent time. But the learned Counsel for the petitioner points out to the portion of the evidence of the witnesses which indicate a different situation. The learned Counsel refers to the evidence of Dhurpati Devi (P.W. 3) the mother at paragraph 2 that from the period between the marriage and Gauna her son-in-law (appellant) had never visited her (P.W. 3) house. Thus, this appellant had never visited his Sasural any time after marriage. There is no story that P.W. 1 met the appellant at any other place. Therefore, in these circumstances there does not remain any occasion for any demand of dowry by the appellant. 12. P. Ws. 1 and 2 have said about the demand of the articles i.e. gold ring, T.V. and scooter by the accused persons when they had visited the deceaseds Sasural. They have said that when they had gone to meet Meena Kumari the accused persons had demanded these things in dowry. But it is the admitted position which appears in the evidence of the P.W. 1 that on 14.3.1989 when he visited the village Sabajpura he had learnt there that the daughter had already been killed 7 days ago. The learned Counsel for the petitioner argued that when the P.Ws. 1 and 2 had gone to Sabajpur to meet Meena Kumari (deceased) she was no more and she had already died a week ago. So it does not sound natural that the accused would have demanded dowry when the daughter-in-law was no more. The learned APP replied that the accused were trying to suppress the occurrence of death and they tried to take dowry even after suppresing the death. However, this does not natural. P.W. 2 (brother of the deceased) had deposed at paragraph 4 that he had visited the deceased Sasural on 13.3.1989 for the first time and before that he had never gone there. However, this does not natural. P.W. 2 (brother of the deceased) had deposed at paragraph 4 that he had visited the deceased Sasural on 13.3.1989 for the first time and before that he had never gone there. Thus there does not appear any occasion for any demand of dowry before 13.3.1989 because the P.W. 2 had never visited the deceased Sasural before that time. 13. Besides this there are other circumstances of discredit the prosecution charge on the appellant that he demanded dowry. P.W. 2 says in his evidence at page 4 that his house is situated in Wazirpur Panchayat and the house of Mukhiya is situated at a distance of 30 bighas and Sarpanchs house is situated at one kilometre but none of them were ever informed about the occurrence. In village people are closely connected with each other and they share the problem and sentiment of one another. The informant says that dowry was demanded. No villager of the informants village has been examined to support. The prosecution story nor even the responsible person like Mukhiya and Sarpanch were ever contacted or complained. These circumstances are not in favour of the prosecution case. 14. While awarding the conviction u/s. 4 of the Dowry Act the learned trial Judge did not consider the above discussed infirmities in the prosecution case. On considering the above discussed infirmities I find that evidence brought by the prosecution is not sufficient to prove the story of demand of dowry, therefore, the charge u/s. 40 of the Dowry Act is still not proved and appellant acquitted of this charge. 15. Now the charge u/s. 304-B has to be considered. The learned trial Judge has cited in his judgment the authority of the Hon ble Supreme Court in the case of Kans Raj V/s. State of Punjab & Ors., 2000 (5) SCC 207 . 15. Now the charge u/s. 304-B has to be considered. The learned trial Judge has cited in his judgment the authority of the Hon ble Supreme Court in the case of Kans Raj V/s. State of Punjab & Ors., 2000 (5) SCC 207 . At page 217 of this authority the Hon ble Supreme Court has laid down that for seeking a conviction u/s. 304-B against a person for the offence of dowry death the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within seven years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death. 16. Discussing the evidence of the prosecution witnesses the learned trial Judge believed that all the five elements as shown in the cited authority are proved by prosecution hence he convicted the accused. 17. But the learned Counsel for the petitioner relying on the same authority argued that the evidences of the witnesses have not been properly considered and they are not sufficient to prove the elements as mentioned in the cited authority and required to be proved by the prosecution. Firstly the learned Counsel argued that no doubt the death has taken place within seven years of marriage but there is no evidence to prove that the death of the woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances. Learned Counsel also argued that the element of subjecting the deceased to cruelty or harassment soon before her death in connection with demand of dowry is also required to be proved but there is no material to prove it. It has already been considered earlier that there is no satisfactory evidence to prove the demand of dowry. 18. Now the question of cruelty or harassment to the deceased soon before her death has to be considered. It has already been considered earlier that there is no satisfactory evidence to prove the demand of dowry. 18. Now the question of cruelty or harassment to the deceased soon before her death has to be considered. The prosecution witnesses have said in their manner that gold ring, T.V. and scooter were demanded but practically there is no evidence on this point that the appellant had ever caused any kind of cruelty or harassment to the deceased in connection with the demand. Therefore, this requirement for basing a conviction u/s. 304-B is not at all proved. The learned APP argued that there is allegation that when the father and brother of the deceased had gone to meet her they were not allowed to meet her and this itself constitutes cruelty. It has already been discussed above that when the father and brother had gone to meet the deceased she had already died a week ago and further there is no other evidence that during her life-time she was ever subjected to any cruelty or harassment, therefore, the submission of the learned APP does not make any difference. In this case the defence story is that the deceased had died of diarrhoea and a defence witness has also been examined by the accused who has said that the deceased had died of diarrhoea. D.W. 1 has also said that they were taking the deceased to the doctor in a different village as there were no doctor in the village but the deceased died in the way so the deceased father was informed and the dead body was cremated. The deceaseds father and mother have alleged that the deceased was killed at the hands of the accused and the dead body was disposed of in the Punpun river but no corroborating witness has been examined nor any villager of the informant or appellant has been examined by the prosecution to show that the death was caused by burn or bodily injury or had occurred otherwise than under the normal circumstances. Therefore, this element is also not found proved by the prosecution. Thus on the basis of the discussion made above the charge Under Sec. 304-B has not been proved by the prosecution hence the appellant is acquitted of the charge. 19. Therefore, this element is also not found proved by the prosecution. Thus on the basis of the discussion made above the charge Under Sec. 304-B has not been proved by the prosecution hence the appellant is acquitted of the charge. 19. On the basis of the facts and circumstances discussed above, I find that the prosecution has not been able to prove the charge u/s. 304-B of the Indian Penal Code, 1860 and sec. 4 of the Dowry Prohibition Act. Therefore, the appellant is. acquitted of these charges. 20. In the result, the appeal is allowed. The judgment of conviction and order of sentence passed by the Trial Court are set aside. The appellant who is in jail is directed to be set at liberty forthwith if not wanted in any other case.