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2004 DIGILAW 520 (PAT)

Bhagwat Mahto & Anr. v. State Of Bihar

2004-05-07

RAJENDRA PRASAD

body2004
Judgment Rajendra Prasad, J. 1. This appeal is directed against judgment and order dated 16.3.1992 passed in Sessions Trial No. 4 of 1985- 87 by 6th Additional Sessions Judge, Nalanda at Biharsharif, whereby and whereunder learned Additional Sessions Judge found both the appellants Bhagwat Mahto and Tetari Devi @ Sharda Devi @ Sumitra Devi guilty for the charges under Section 304, IPC (instead under Sections 302/34) 201, IPC and also under Section 4 of Dowry Prohibition Act and convicted and sentenced both of them to undergo rigorous imprisonment for seven years under Section 304, IPC, three years rigorous imprisonment under Section 201, IPC and imprisonment for one year under Section 4 of Dowry Prohibition Act. Learned Additional Sessions Judge further ordered that all sentences passed against both the appellants shall run concurrently. 2. As it appears from written report (Ext. 2) of Yugal Prasad, who happens to be father of deceased Madhuri Kumari and examined as PW 7, the prosecution story relates to an occurrence, in which, his daughter Madhuri Kumari was done to death by her in-laws. As per informant, his daughter Madhuri Kumari (deceased) was married to Sudhir Kumar, son of Bhagwat Mahto (appellant No. 1) of village Vijaygarh (Parwalpur) under Hilsa Police Station. In the last month of July, his daughter along with his niece had gone to Angel Girls Training School for appearing at practical examination. The informant was also there. The informant stated that when he had gone out for purchasing articles his son-in-law Sudhir Kumar and his cousin Mahendra Kumar took away his daughter on the same day of practical examination i.e. on 25.7.1983 when the practical examination was postponed and he had given information of taking away of his daughter to Budha Colony police station. Later on the niece of informant came back home but his daughter Madhuri Kumari was detained in her sasural. Daughter of informant was not allowed to appear in the examination on 26.7.1983. Informant alleged that his daughter was not properly treated by her father-in-law Bhagwat Mahto, his wife, his daughter Indu Kumari and Bhaisoor Suresh Prasad, whose wife used to say the daughter of informant to bring Rs. 5,000/- from Naihar towards remaining dowry. Informant stated that no dowry was due and his son-in-law was in service and at the instance of family members he was desiring to marry second time. 5,000/- from Naihar towards remaining dowry. Informant stated that no dowry was due and his son-in-law was in service and at the instance of family members he was desiring to marry second time. Informant further stated that he wanted to bring his daughter back but in-laws of his daughter did not allow informant to bring his daughter back. When informant along with his brother Rajendra Prasad (PW 6) came to Hilsa for coming to Vijaygarh on 19.10.1983 he came to know that in-laws of his daughter Bhagwat Mahto (appellant No. 1), Gurusharan Mahto, Suresh Prasad, Vijay Prasad, Sarjug Prasasd, wife of Bhagwat Mahto (appellant No. 2), daughter of appellant No. 1 Indu Kumari together committed murder of his daughter and burnt the dead body near the village instead taking dead body to ganges and informant was also not given any information about the death. Informant further stated that when he went to Vijaygarh for getting further information one Mangal Kahar (not examined) told him that his daughter Madhuri Kumari was done to death by her in-laws. When the informant wanted to meet his samdhi Bhagwat Mahto (appellant No. 1) he entered into his house and closed the doors from inside and did not become ready to talk to informant. Informant stated that people of nearby village had given information that the daughter of the informant was done to death by her in-laws. 3. On the basis of written report (Ext. 2) Hilsa P.S. Case No. 291, dated 20.10.1983 under Sections 302 and 201 read with Section 34, IPC and under Section 4/5 of the Dowry Prohibition Act, was registered. Investigation of the case was taken up and after investigation charge-sheet under the aforementioned Sections was submitted. Thereafter learned A.C.J.M., Hilsa took cognizance of the offences and also committed the case to the Court of Sessions. Later on the case was transferred to the learned 6th Additional Sessions Judge, Nalanda at Biharsharif for trial. 4. Learned 6th Additional Sessions Judge, Nalanda framed charges against as many as seven accused persons, namely, Bhagwat Mahto (appellant No. 1), Gurusharan Mahto (acquitted), Suresh Prasad (acquitted), Vijay Prasad (acquitted), Tetari Devi (appellant No. 2), Indu Kumari (acquitted) and Sarjug Prasad (acquitted) under Sections 302/34, IPC, under Section 201, IPC and also under Sections 4/5 of the Dowry Prohibition Act, and thereafter trial of the case was taken up. 5. 5. Learned 6th Additional Sessions Judge, Nalanda at Biharsharif in his judgment and order dated 10.1.1992 found and held co-accused Gurusharan Mahto, Suresh Prasad, Vijay Prasad, Indu Kumari @ Usha Devi and Sarju Prasad not guilty of any of the offences charged and so acquitted them and also discharged them from their liabilities of bail bonds. However, learned Additional Sessions Judge found and held Bhagwat Mahto (appellant No. 1) and Tetari Devi (appellant No. 2) guilty under Sections 304, IPC, (instead under Sections 302/34, IPC), 201, IPC and also under Section 4 of Dowry Prohibition Act, and convicted both of them thereunder as mentioned in paragraph 1 of this judgment. 6. In order to prove and establish its case the prosecution examined as many as eight witnesses, besides filed and proved written report (Ext. 2), formal FIR (Ext. 4), order of District Magistrate sanctioning prosecution under Dowry Prohibition Act, (Ext. 5) and signature of witnesses on seizure list marked Ext. 1, 1/1 and also endorsement on written report marked Ext. 3. 7. As it appears from statement of appellants recorded under Section 313, Cr PC and also the trend of cross-examination the defence denied the charges and pleaded innc cence and false implication by the informant who wanted to marry his niece with Sudhir Kumar which was refused by appellant No. 1. 8. Out of eight witnesses examined by the prosecution, PW 1, Ramjatan @ Jatan Ram though proved his signature on seizure list yet stated that his statement was not taken by darogaji. This witness was declared hostile and was cross-examined by the prosecution and also by defence. In his cross-examination he denied any seizure of burnt piece of dead body, blouse, sari and half burnt piece of bamboo. 9. PW 2, Bijendar Singh also stated his ignorance as to the occurrence and so he was declared hostile and cross-examined by prosecution and defence both. There is nothing in his statement so as to help prosecution. 10. PW 3, Sanjay Kumar proved his signature on seizure list marked Ext. 1/1 but in his cross-examination stated that he has signed seizure list at his house and no seized article was before him. 11. PW 4, Sant Singh, stated that deceased Madhuri Kumari was wife of Sudhir Kumar, son of Bhagwat Mahto (appellant No. 1). He further denied his signature on the seizure list. 1/1 but in his cross-examination stated that he has signed seizure list at his house and no seized article was before him. 11. PW 4, Sant Singh, stated that deceased Madhuri Kumari was wife of Sudhir Kumar, son of Bhagwat Mahto (appellant No. 1). He further denied his signature on the seizure list. This witness was declared hostile and cross-examined by prosecution and defence both. There is nothing in his statement so as to help prosecution, rather this witness appears to have stated that deceased Madhuri Kumari died. 12. PW 5, Birendra Singh stated that no search in the house of accused Bhagwat Mahto (appellant No. 1) was made in his presence. This witness was also declared hostile and cross-examined by both prosecution and defence. In his cross-examination he denied that he had stated before police that Bhagwat Mahto (appellant No. 1) had killed his daughter-in-law. He also denied his statement before police that any search was made in his presence. 13. PW 8, Rajendra Prasad, who happens to be uncle of deceased Madhuri Kumari, stated that deceased Madhuri Kumari was his niece whose fathers name Yugal Prasad (PW 7). He further stated that Madhuri Kumari was married to Sudhir Kumar, son of Bhagwat Mahto (appellant No. 1) of village Vijaygarh in the year 1979 and her second marriage (Gauna) was also solemnized. Madhuri Kumari used to live in her sasural and also in her naihar. Madhuri Kumari was student of Angel Girls Training School, Patna (Lodhipur). Her practical examination was scheduled in 1983 after summer for which Madhuri Kumari had gone to Patna from her naihar. Her father Yugal Prasad and sister Nirmala accompanied her for examination. The practical examination was scheduled on 26th instant at Patna. Father of Madhuri Kumari went out for purchasing articles for practical examination when Sudhir Kumar came there and took Madhuri Kumari and Nirmala to his home Vijaygarh. Cousin of Sudhir Kumar was also with him. The examination which was scheduled on 26th instant was postponed to 27th instant. Madhuri Kumari did not appear in the examination scheduled on 27th instant as she did not come Patna from Vijaygarh. Nirmala came her home from Vijaygarh. This witness further stated that sasural people did not maintain good relation with Madhuri Kumari and they used to ask Madhuri Kumari to bring Rs. 5,000/-. Madhuri Kumari did not appear in the examination scheduled on 27th instant as she did not come Patna from Vijaygarh. Nirmala came her home from Vijaygarh. This witness further stated that sasural people did not maintain good relation with Madhuri Kumari and they used to ask Madhuri Kumari to bring Rs. 5,000/-. After Madhuri Kumari was brought to Vijaygarh from Patna she lived at Vijaygarh when in the night of 17.10.1983 Bhagwat, Gurusharan, Sarjug, Vijay and other family members of Bhagwat Babu pressed neck of Madhuri Kumari, murdered her and burnt her dead body near his house. On 19.10.1983 this witness and Yugal Prasad reached Hilsa. In way to Vijaygarh they met nearby people at Hilsa market, from whom they came to know that Madhuri was murdered on 17.10.1983 and her dead body was burnt. Thereafter knowing this, this witness and Yugal Prasad went to Vijaygarh at the doors of Sudhir Kumar. This witness stated that seeing them Bhagwat Mahto (appellant No. 1) closed his doors and even this witness waited doors were not opened. He further stated that one Mangal Kahar told this witness that in the night of 17.10.1983 family members of Bhagwat Babu committed murder of Madhuri and burnt her dead body. Thereafter knowing all these, this witness came to Hilsa police station and lodged a case. This witness failed to identify accused Vijay present in the Court and also shown his ignorance as to other co accused present in the Court. 14. This PW 6, appears to have been cross-examined. In his cross-examination he stated that darogqji had not asked him and he stated in the Court for the first time. He further stated that his brother Yugal had told them that Madhuri did not appear in the examination on 26th instant and that Madhuri Kumari had gone to Patna for appearing in the practical examination and that Madhuri was taken by her husband Sudhir Kumar. This witness further stated that Mangal Kahar had met him at Vijaygarh but he had never informed any police official of his meeting with Mangal Kahar. He further expressed his ignorance as to whether this case was investigated by C.I.D. However, he denied that Madhuri died of illness and that she was cremated at Patna and that he had proposed marriage of Nirmala with Sudhir Kumar and as Sudhir Kumar did not become ready this false case was instituted. 15. He further expressed his ignorance as to whether this case was investigated by C.I.D. However, he denied that Madhuri died of illness and that she was cremated at Patna and that he had proposed marriage of Nirmala with Sudhir Kumar and as Sudhir Kumar did not become ready this false case was instituted. 15. PW 7, Yugal Prasad is informant and father of Madhuri Kumari. He stated that Madhuri was his daughter who was married to Sudhir Kumar, son of Bhagwat Mahto of Vijaygarh in the year 1979. Her second marriage (Gauna) was also solemnised. Her daughter was undertaking teachers training in Angle Teachers Training School, Lodhipur at Patna. Her practical examination was scheduled in the month of July, 1983. After theoritical examination her daughter had come to this witness. This witness had taken her daughter to Patna for practical examination when Nirmala @ Siamati (niece) had also gone to Patna. This witness further stated that the practical examination was scheduled on 26.7.1983 but the examination was postponed to 27.7.1983. On 26.7.1983 at 10 a.m. this witness had gone to market and when he came back after 2-3 hours he came to know that Sudhir Kumar and his cousin Mahendra Kumar took Madhuri and Nirmala with them on the plea of visiting cinema. This witness stated that he had given information of this to Budha colony police station. Madhuri Kumari was not brought for examination on 27.6.1983 and so this witness came back to Vijaygarh. He further stated that at Vijaygarh he could not meet any member of Bhagwat Babus family. When asked from nearby people he came to know that sasural people of Madhuri were not in favour of study and examination of Madhuri. He did not meet Nirmala there and then he came back his home when Nirmala had already come. This witness further stated that sasural people of Madhuri had no good relation with her. Sasural people of Madhuri used to vex her for money. Sudhir Kumar was not in service and so he needed money. Madhuri could not appear in the examination as her sasural people did not allow her. Madhuri remained in her sasural. Rainy season came and after end of cultivation this witness along with his brother Rajendra Prasad (PW 6) proceeded for Vijaygarh to meet Madhuri and reached Hilsa. At Hilsa nearby people of Vijaygarh told this witness that his daughter was killed. Madhuri remained in her sasural. Rainy season came and after end of cultivation this witness along with his brother Rajendra Prasad (PW 6) proceeded for Vijaygarh to meet Madhuri and reached Hilsa. At Hilsa nearby people of Vijaygarh told this witness that his daughter was killed. This witness stated that he knew the man who told about the killing of his daughter but he did not know his name. Thereafter this witness along with Rajendra Prasad proceeded for Vijaygarh. Rajendra Prasad did not reach Vijaygarh and stayed in the way. This witness reached Vijaygarh. In way to Vijaygarh, Surendra Prasad of village Kharaspur told this witness that he had seen sasural people of Madhuri burning dead body of Madhuri. Surendra had also named persons who were burning dead body but this witness did not remember their names. Thereafter, this witness met Mangal Kahar of Gullu Bigha at Chiksoura market who told this witness that sasural people of Madhuri had killed her. Mangal Kahar was domestic servant of Bhagwat Babu. This witness returned to Hilsa police station from Chilsoura market. He further stated that he submitted written report with Hilsa police station. He proved his writing and signature on written report marked Ext. 2. He further stated that at police station he was dictated by darogaji and his earlier written report was removed. He further stated that written report was dictated by officer-in-charge and this witness signed the same. This witness alleged that Officer-in-charge went on threatening this witness and he had also filed protest petition against police. He further stated that in his first written report he had mentioned names of Bhagwat Mahto, Gurusharan Mahto, Suresh Prasad, Vijay Prasad, Sudhirs mother, sister and Sarjug Prasad and also that his son-in-law was in service and at the instigation of family members wanted to marry again for dowry. He further stated that information as to death of Madhuri was not sent to him by sasural people of Madhuri. This witness further stated that in his first written report he had mentioned that he wanted to meet his samdhi Bhagwat Mahto who entered into his house and closed the doors and was not ready to talk. This witness identified Bhagwat Mahto (appellant No. 1) in the Court and also claimed to identify co accused who was not present in the Court. This witness identified Bhagwat Mahto (appellant No. 1) in the Court and also claimed to identify co accused who was not present in the Court. This witness suo motu stated that darogaji had objected mentioning name of Sudhir Kumar and Maheshwari Kumar as mentioned in the first written report. This witness has been cross-examined at length but there appears nothing worth consideration in his cross-examination. 16. PW 8, Arbind Prasad, is a formal witness who has proved endorsement on written report, marked as Ext. 3 and also formal FIR, marked as Ext. 4. 17. On a bare reading of the statements of all eight witnesses examined by the prosecution, it is evidently clear that PWs. 1 to 5 and PW 8 are either formal witnesses or hostile witnesses and there is nothing in their statements so as to help prosecution. 18. Prosecution is left with statements of PW 6, who is brother of the informant and PW 7, who is informant himself. 19. The contention of the learned counsel for the appellants is that this is a case of no evidence inasmuch as even if the statements of all witnesses examined by the prosecution are taken, as it is, the same prove nothing as none of these witnesses including informant (PW 7) and brother of the informant (PW 6) are eye-witnesses to the alleged occurrence of killing of the deceased in the manner, as alleged. Learned counsel for the appellants further points out that both PW 7 (informant) and PW 6 (brother of the informant) are hearsay witnesses and those Mangal Kahar, Surendra Prasad of village Kharaspur and others, who as per these witnesses (PW 6 and PW 7) informed these witnesses about killing of deceased by the appellants and co accused, have not been brought before the Court and that investigating officer of this case has also not been examined. 20. The contention of the learned counsel for the appellants is that non-examination of I.O. in this case is also fatal to the prosecution and the statements of hearsay witnesses are itself not admissible in law and so order of conviction relying upon the statements of hearsay witnesses is itself bad in law. 21. 20. The contention of the learned counsel for the appellants is that non-examination of I.O. in this case is also fatal to the prosecution and the statements of hearsay witnesses are itself not admissible in law and so order of conviction relying upon the statements of hearsay witnesses is itself bad in law. 21. Learned counsel for the appellants further points out that though the appellants and other co accused (since acquitted) were charged under Sections 302 read with Section 34 and Section 201 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, the Trial Court only on the basis of presumption under Section 113-B of the Indian Evidence Act, found appellants guilty under Sections 304/34 and 201, IPC and also under Section 4 of Dowry Prohibition Act, which is neither lawful nor sustainable. 22. As against this, only contention of the learned counsel for the State was that the judgment and order of conviction was passed on evidence brought before Trial Court. 23. The only point for consideration is whether the prosecution has been able to establish the charges levelled against the appellants beyond shadow of reasonable doubt and in the manner,as alleged, and whether the judgment and order of conviction against the appellants under Sections 304/34 and 201, IPC and Section 4 of Dowry Prohibition Act, is sustainable. 24. Taking into consideration the evidences brought on record it is evidently clear that out of eight witnesses examined by the prosecution PWs. 1 to 5 and PW 8 are either formal witnesses or hostile witnesses and there is nothing in their statements so as to help prosecution. Remaining PW 7, informant, and PW 6, brother of the informant, are also not eye-witnesses to the alleged occurrence and they are only hearsay witnesses. 25. Going through statements of these witnesses it appears that their statements are also in the form of allegation only inasmuch as there is neither oral nor any documentary evidence so as to indicate commission of occurrence in the manner, as alleged. Non examination of witnesses who had informed PW 6 and PW 7 of commission of alleged offences claiming to be the eye-witnesses leave the statements of PW 6 and PW 7 hearsay statements which are not admissible for consideration. Morever conviction cannot be passed on the basis of statements of hearsay witnesses because statements of such hearsay witnesses prove nothing. Non examination of witnesses who had informed PW 6 and PW 7 of commission of alleged offences claiming to be the eye-witnesses leave the statements of PW 6 and PW 7 hearsay statements which are not admissible for consideration. Morever conviction cannot be passed on the basis of statements of hearsay witnesses because statements of such hearsay witnesses prove nothing. Besides the circumstances in which this occurrence is alleged to have taken place the statements of I.O. would have been important as it was investigating officer who had occasion to inspect the place of occurrence, collect materials and evidence so as to indicate complicity of the accused in committing the offences and thus non-examination of I.O. is also fatal. 26. It is evidently clear that when the occurrence took place the provision of Section 304-B, IPC was not brought in Indian Penal Code and so conviction of appellants that too under Sections 304/34 and 201, IPC and Section 4 of Dowry Prohibition Act, does not appear sound inasmuch as the facts alleged in the FIR and also stated by the witnesses before the Court do not attract ingredients of Section 304, IPC rather the fact alleged by the witnesses though indicate ingredients of Section 302, IPC yet not proved. 27. In these backgrounds, I come to the conclusion that judgment and order of conviction passed by the learned Trial Court is not sustainable either in facts or in law and the same is fit to be set aside. 28. In the result, this criminal appeal is allowed and the judgment and order of conviction passed by 6th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 4 of 1985-1987, is hereby set aside and both the appellants are acquitted and are also discharged from liabilities of their bail bonds.