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2003 DIGILAW 921 (PAT)

Nawal Kishore @ Kallu v. State Of Bihar

2003-08-29

CHANDRA MOHAN PRASAD

body2003
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment of conviction and order of sentence dated 7.02.2007/10.02.2007 of the Additional Court No. II (F.T.C.), Patna in S.T. No. 697 of 1988/39 of 2001 whereby, the appellant has been convicted u/s. 304-B/120-B of the Indian Penal Code and sentenced to R.I. for ten years. 2. The prosecution case vide written report (Ext-1) of the informant Chhotelal Gupta (P.W. 2) as filed before the Officer-ln-Charge, Malsalami Police Station on 27.04.1988 is that he had married his daughter Champa Devi (deceased) to appellant Nawal Kishore @ Kallu of Yamunapur Malki Kutchery in the year 1987. That day (27.04.1988) at 3:30 A.M. he received information that his daughter had been killed. Knowing this he (informant), along with his family members and co-villager went to Yamunapur Mohalla, Malki Kutchery i.e. Sasural house of his deceased daughter and saw that the dead body of the deceased was lying on the Palang in her room. The look of the dead body clearly indicated that she had been strangulated. The informant alleged that previously on 24.08.1988 he had gone to bring his daughter (deceased) from her Sasural to her Maika but the appellant and her father inlaw and mother-in-law had not allowed her to go. It was also stated in the written report that when he (informant) had met his (deceased) daughter she was healthy but looked terrified. On being asked she (deceased) had disclosed that her husband (appellant), father-in-law and mother-in-law were demanding money and they were also mentally torturing her for the demand. He (informant) consoled her (deceased) and said that he was not affluent man but anyhow he will manage some money and will give it to the deceaseds husband (appellant) and her Sasural people. He further submitted that while he was returning from there, his son-in-law (appellant) accompanied him to see him off and at that time, he demanded Rs. 5,000.00 and threatened with dire consequence in case of non-payment. That day (27.04.1988) he enquired from the people of the locality of her (deceaseds) Sasural but they did not disclose anything out of fear saying that they had fear of life if they disclosed anything against him (appellant). 5,000.00 and threatened with dire consequence in case of non-payment. That day (27.04.1988) he enquired from the people of the locality of her (deceaseds) Sasural but they did not disclose anything out of fear saying that they had fear of life if they disclosed anything against him (appellant). Anyhow he (the informant) learnt that his daughter (deceased) had been killed on 26.04.1988 between 2:00 P.M. to 6:00 P.M. He further stated that he had given ornaments, T.V., watch, radio and clothes to the appellant in marriage but the appellant, his father and mother killed the deceased by throttling her due to non-fulfilment of demand of Rs. 5,000.00. On the basis of the written report, FIR (Ext-6) was instituted and the investigation commenced. On completion of investigation, charge-sheet was submitted against the appellant, his father and mother. The father and the mother i.e. father-in-law and mother-in-law of the deceased died during trial and the trial proceeded against the appellant who has been convicted and sentenced as above on conclusion of the same. 3. As many as eleven witnesses were examined by the prosecution. P.W. 1 Mira Devi, the Bhabhi of the appellant has turned hostile and she has not supported the prosecution case. P.W. 2 Chhotelal Gupta is the informant hismelf. P.W. 3 Kalawati Devi is the mother of the deceased, PW 4 Bidya Nath Prasad is the cousin brother of the deceased. P.W. 5 Rambali Choudhary is a tenant in informants house. P.W. 6 Vishwa Nath Prasad, who is the uncle of the deceased has been tendered by the prosecution. P.W. 7 Sangeeta Kumari is the sister of the deceased. P.W. 8 Parmeshwar Prasad is a witness on the point of seizure of Sarhi and wrist watch from deceaseds room. P.W. 9 Naresh Prasad is the witness in presence of whom the inquest report of the dead body was prepared. P.W. 10 Surya Narayan is Advocates Clerk who has proved the wirtings on the post mortem report by Dr. Chandeshwar Prasad, who had conducted the P.M. Examination on the dead body of the deceased. He also stated that Dr. Chandeshwar Prasad was dead. P.W. 11 Punit Ram is the Investigating Officer of the case. P.W. 10 formally proved the P.M. Report in the writings of Dr. Chandeshwar Prasad who is dead. Chandeshwar Prasad, who had conducted the P.M. Examination on the dead body of the deceased. He also stated that Dr. Chandeshwar Prasad was dead. P.W. 11 Punit Ram is the Investigating Officer of the case. P.W. 10 formally proved the P.M. Report in the writings of Dr. Chandeshwar Prasad who is dead. The P.M. Report mentioned the following ante mortem injuries on the dead body of the deceased: (1) Pressure abrasion mark over right side of the neck running horizontally from mid-front region to backwards upto nape of neck 6"x1/2" at the level just below the thyroid cartilage with deeper impression over neck below the angle of the jaw on left side pressure abrasion of size 3.1/2"x1/2" running horizontally from mid line. The pressure mark was not prominent on mid front region and back of neck. (2) Abrasion over left elbow on its back with swelling over the joint 2.1/2" x 1/2" and left hand cyanosed-nails bluish. (3) Abrasion with bruise over right palmer aspect of the hand at the base of right thumb 2"x1". (4) Abrasion over right thigh with bruise over 4"x1.1/2" area over mid front of thigh. 4. The P.M. Report further mentions that on dissection and internal examination, the area of pressure abrasion when dissected revealed white glistering hand with light ecchymosis and the deeper tissues and vessals and the wall of trachea on right side found ecchymosed. The left side of the neck was also found ecchymosed in the deeper tissues. Thyride bone was found intact, Trachea was congested and constused blood and blood stained mucus and forth. Lungs congested, liver congested. Heart both chambes empty. Bladder empty, stomach contained semi-digested rice diet about 6 oz. 5. The doctor opined that the death was due to asphyxia as a result of pressure on the neck as found above and the death had been cuased within 6 to 48 hours. Thus according to the findings in the P.M. Examination report the deceased had died due to strangulation. 6. Learned counsel for the appellant argued that in this case the doctor has not been examined by the prosecution but there is explanation for it as deposed by P.W. 10, who proved the P.M. Report, that the doctor had died so he could not be examined. 6. Learned counsel for the appellant argued that in this case the doctor has not been examined by the prosecution but there is explanation for it as deposed by P.W. 10, who proved the P.M. Report, that the doctor had died so he could not be examined. The doctor was a public servant who had prepared the P.M. Report in course of performing his duty and, therefore, the contents of the P.M. Report can be looked into while considering the cause of death in absence of the examination of the doctor who had died. P.W. 11 Punit Ram is the I.O. of the case. He deposed that on 26.04.1988 at about 3:00 A.M. he received telephonic message that at Jamunapur Malpur Kutchery wife of Nawal Kishore @ Kallu had been killed. On this information the I.O. recorded in the Station diary and along with other Police Personnels proceeded for spot and he reached there at 4:00 A.M. He found the informant Chhotelal Gupta present there. The informant also gave him writen report (Ext-1) on which he wrote his (P.W. 11 s) endorsement (Ext-5) and thereafter the FIR of the case (Ext-6) was instituted. He further deposed that he took up the investigation and inspected the P.O. which was the living room of the deceased in her Sasural house. He found that red colour Sarhi was hanging from the wooden beam of the house but there has no kind of mark on the beam. He also found the articles in the room well arranged. The I.O., further deposed that he did not find any mark on the Sarhi indicating commission of suicide by means of it. He further deposed that he seized the Sarhi and a lady wrist watch from the room and he also prepared a seizure-list (Ext-8). At Para-7 of his evidence the I.O. stated that he had recorded the statement of Mira Devi (P.W.1) who had stated before him that on 26.04.1988, between 12:00 Noon to 2:00 P.M., the father-in-law and the mother-in-law and Nawal Kishore @ Kallu (husband of the deceased) were present in the house and that Nawal Kishore had beaten his wife (deceased) and was quarreling with her. She further deposed that she was living separate and that in the morning the appellant had come to the house and had spoken that his wife had died and thereafter he had gone away. 7. She further deposed that she was living separate and that in the morning the appellant had come to the house and had spoken that his wife had died and thereafter he had gone away. 7. P.W. 1 Mira Devi is the Bhabhi of the appellant. She has turned hostile and deposed in her examination-in-chief that the deceased had committed suicide. On her attention being drawn by the A.P.P. towards the previous Police statement as proved by the I.O. she deposed that she had not given any such statement. It appears that this witness being Bhabhi of the informant is trying to suppress the real version and she has turned hostile in order to help the appellant. 8. P.W. 2 Chhotelal Gupta (informant), the father of the deceased deposed that he had married his daughter to the appellant and that in the early morning of 27.04.1988 Police informed him that his daughter had been killed. Hearing this he (the informant) along with his brother Vishwanath Prasad (P.W. 6) nephew Munna Prasad, wife of Kalawati (P.W. 3) and daughter Poonam Devi and Sangita (P.W. 7) went to deceaseds Sasural house and found that the people had assembled there and Police was also present. He further deposed that when he entered into the room of the deceased he found that deceaseds dead-body was lying on the Palang. He found scratch mark on the neck which indicated that the deceased had been stragulated. He (informant) suspected that the appellant and the father-in-law and the mother-in-law of the deceased had killed her. He continued to depose at Para-3 that the appellant and other members of the family were demanding money and they were torturing her for the same. He also deposed at Para-4 that two days prior to the occurrence i.e. on 24.08.1988 he had gone to deceaseds Sasural for bringing her to her Maika from there but the appellant and other accused did not allow her to go. He also deposed that the deceased had complained him that the appellant and others were demanding money and they were torturing her due to non-fulfilment of demand of dowry, whereupon he had stated that he had already given enough to them and he was not an affluent man, anyway he will arrange some money and give it to them. He also deposed that the deceased had complained him that the appellant and others were demanding money and they were torturing her due to non-fulfilment of demand of dowry, whereupon he had stated that he had already given enough to them and he was not an affluent man, anyway he will arrange some money and give it to them. He further alleged that when he departed from deceaseds Sasural the appellant had accompanied him in order to see him off and at that time he demanded Rs. 5,000.00 from him. He (the informant) told that he was a poor man and he was not in a position to pay so much money whereupon the appellant had threatened him that he will see the consequence of non-fulfilment of demand and thereafter he (appellant) had returned from there. The informant says that he returned to his house and had informed his wife of the matter. 9. At Para-5 of his deposition the informant further deposed that his wife had also disclosed that earlier also while the deceased was at her Maika the appellant had come there and had demanded money from his (informants) wife for a bike and that when money was not given to him the appellant had forcibly taken the deceased with him (informant) from her Maika. The informant further deposed at Para-6 that he got the writen report (Ext-1) written by his brother Vishwanath Prasad and then after signing the same he had given it to the Police. He further deposed that after the P.M., the dead body of the deceased had been given to him and he had cremated the same. He denied the defence suggestion that on the day of occurrence the nanad of the deceased had been operated in the Hospital and on the date of occurrence, the appellant, father-in-law and mother-in-law of the deceased were in the Hospital. Thus, the suggestion that on the date of occurrence, the appellant was in the Hospital has been denied by the informant. The defence has not proved any material either oral or documentary to substantiate the suggestion. Thus, the suggestion that on the date of occurrence, the appellant was in the Hospital has been denied by the informant. The defence has not proved any material either oral or documentary to substantiate the suggestion. No doubt at Para-6 of deposition Mira Devi (P.W. 1) who is a hostile witness has stated that on the day of occurrence the appellant was in the Hospital but this evidence of hostile evidence in absence of any oral and documentary evidence is not of any importance for proving this fact. Thus, the informant supports the story of prosecution on all the material aspects of the case. 10. P.W. 3 Kalawati Devi, mother of the deceased deposed that in the early morning at about 3-4 O clock she received information from Police that her daughter had been killed and, thereafter, she along with her husband, Bhaisur and daughters and Baijnath had gone to deceaseds Sasural and had found the dead body of the deceased lying there. She further deposed that about 1-2 months ago while the deceased was in her Maika the informant had come there and had demanded Rs. 5,000.00 for a bike and investment in business and that while she had refused to pay money, the Appellant had forcibly taken the deceased with him to her Sasural. She also deposed that at that time the deceased was not willing to go with the appellant saying that the appellant used to demand money and beat her for the same. He further deposed that while the informant had forcibly taken the deceased with him, her (P.W. 3s) husband (informant) was not there but her tenants were present there and that subsequently when her husband came she had told it to him. She also deposed at Para-4 that about 8 days prior to the occurrence when her husband had gone to deceaseds Sasural the appellant had demanded money and had also threatened with dire consequences if money was not paid to him. She stated that her daughter was killed by the appellant due to non-fulfilment of the demand of money. There is nothing in the cross-examination of this witness to discredit her testimony and she has corroborated the informant on all material points. She stated that her daughter was killed by the appellant due to non-fulfilment of the demand of money. There is nothing in the cross-examination of this witness to discredit her testimony and she has corroborated the informant on all material points. P.W. 4 Baidyanath Prasad is also the cousin brother of the deceased who has deposed that he used to visit his sister (deceased) at her Sasural and that whenever he met her he deceased had asked to communicate her father about the demand of money made by the appellant. He also deposed that the deceased had disclosed before him that she was being tortured due to non-fulfilment of demand of money and she used to request him for taking her to her Maika. Thus this witness says about the demand of money and the torture committed on the deceased for non-fulfilment of the demand of money which this witness had learnt from the deceased who was facing the torture before her death. 11. P.W 5 Vishwanath Prasad is the brother of the deceased but he has been tendered by the prosecution and this witness has said nothing either in his examination-in-chief or cross-examination. 12. P.W. 7 Sangita Kumari is the sister of the deceased. She deposed that the deceased was married to the appellant in the year 1984. He further deposed that one month prior to the occurrence while the deceased was at her Maika, the appellant had come there and he had demanded Rs. 5,000.00 from her mother and had also abused her and the deceased for the money. She continued to depose that when her mother expressed her inability in paying the money saying that she had no money with her the appellant had assaulted the deceased and had forcibly taken her from her Maika to her Sasural. Thus this witness says that the appellant was demanding money and due to non-payment of it he even assaulted the deceased in her Maika and forcibly took her away from Maika to her Sasural and after some time dowry death was caused. 13. Thus this witness says that the appellant was demanding money and due to non-payment of it he even assaulted the deceased in her Maika and forcibly took her away from Maika to her Sasural and after some time dowry death was caused. 13. P.W. 5 Rambali Choudhary, who is a tenant in informants house has deposed that about one month prior to the occurrence while the deceased was at her Maika, her husband i.e. the appellant had come there and had demanded money and bike from deceaseds mother and that when deceaseds mother told that she had no money at that time and requested the appellant to wait for half to one month, the appellant threatened that the consequence of non-payment would be dire and thereafter he had forcibly taken the deceased from her Maika to her Sasural. This witness further deposed that the dowry death of the deceased was caused at her Sasural. The evidence of this witness shows that the appellant had demanded money and due to nonpayment of the money he had threatened his mother-in-law with dire consequence and thereafter he forcibly took away the deceased from her Maika to her Sasural where her dowry death was caused. 14. P.W. 8 Parmeshwar Prasad is a witness on the point of seizure of one red colour Sarhi and Lady Ricoh watch from the room of the deceased. This witness identified his signature (Ext-2) on the seizure-list and he stated in his cross-examination that Darogajee had called him from road and obtained his signature. 15. P.W. 9 Naresh Prasad is the witness in whose presence inquest report of the deceased was prepared. He stated that Police had prepared inquest report. He identified his signature (Ext-3) on the inquest report. 16. During hearing, learned counsel for the appellant argued that in this case, though the witnesses had said that the appellant had demanded money for doing some business and for purchasing bike hence it was argued that the demand is not a demand of dowry. It was submitted that the demand was not in consideration of the marriage but for some other purpose like purchasing bike and doing business. It was submitted that the demand was not in consideration of the marriage but for some other purpose like purchasing bike and doing business. No doubt the demand is said to have been made for that purpose but the fact remains that the appellant always demanded money in the capacity of being husband and due to his marriage with the deceased and that he also threatened with dire consequence in case of non-fulfilment of demand of money. This indicates that the demand was made due to marriage of the appellant with the deceased and the parents of the deceased were also threatened and pressurised for the demand. 17. The evidence of the witnesses established that shortly before the occurrence the appellant had gone to deceaseds Maika and had demanded money from deceaseds mother and had also threatened with dire consequence in case of non-fulfilment of the demand and that when money was not paid the deceased was forcibly brought from the Maika to her Sasural and there her death was caused. The medical evidence is indicative of the fact that the death was caused not under normal circumstance. The evidence of deceaseds father (P.W. 2) also shows that two days prior to the occurrence when he had gone to bring his daughter (deceased) from her Sasural he had found that the deceased was terrified and she had communicated to him (P.W. 2) about the demand being made by the appellant and other family members. 18. The evidence of P.W. 2 also shows that while he left the deceaseds Sasural the appellant had accompanied him to some distance in order to see him off and at that time the appellant had demanded Rs. 5,000.00 and when he (P.W. 2) expressed his inability in paying the money the appellant had threatened that he will see the consequence of non-fulfilment of the demand and he had returned. Just after two days the deceaseds father learnt that the deceased had been killed and he came to deceaseds Sasural and found the dead body of the deceased with injuries which were indicative of the fact that the deceased had been strangulated. 19. Just after two days the deceaseds father learnt that the deceased had been killed and he came to deceaseds Sasural and found the dead body of the deceased with injuries which were indicative of the fact that the deceased had been strangulated. 19. During hearing, learned counsel for the appellant argued that in this case the doctor has not been examined to prove the injuries on the deceased as mentioned in the P.M. Report in order to show that the death had occurred in other than normal circumstance. But this has already been stated earlier that the doctor had died so he could not be examined. The doctor had performed the P.M. Examination in performance of his official duty. Therefore, P.M. Report can be looked into and the details of the injuries found on the deceased have already been discussed in earlier Paras. 20. Learned counsel for the appellant even argued that the deceased had committed suicide and that it was not a case of death under abnormal circumstance. 21. In this context, learned A.P.P. argued that even if the story of suicide is believed for argument sake it will still mkae out a case of dowry death in view of the fact that the deceased had been tortured and harassed for non-fulfilment of demand of dowry soon before her death and the death had occurred not in normal circumstance. In view of the injuries in the P.M. Report it is difficult to believe that the deceased had committed suicide and it is clearly indicating the fact that the death of the deceased had occurred not in normal circumstance. 22. Thus hearing and considering the facts and circumstances of the case i find that the prosecution has been able to prove that the death of the deceased had occurred not in normal circumstance within 7 years of her marriage and that the deceased had been tortured and harassed before her death in connection with demand of money which death is not less than dowry death. In such view of the matters i feel that the prosecution has been able to prove the charge u/s. 304(B) of the Indian Penal Code against the appellant. Therefore, the conviction as passed by the Trial Court is upheld. In such view of the matters i feel that the prosecution has been able to prove the charge u/s. 304(B) of the Indian Penal Code against the appellant. Therefore, the conviction as passed by the Trial Court is upheld. So far the quantum of sentence is concerned, in the facts and circumstances of the case, it is just and proper, hence, the sentence is also upheld. 23. In the result, the appeal fails.