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2004 DIGILAW 653 (PAT)

Kashi Ram v. State Of Bihar

2004-07-08

RAJENDRA PRASAD

body2004
Judgment Rajendra Prasad, J. 1. This criminal appeal is directed against the judgment and order dated 23.3.1998 passed in Sessions Trial No. 393/92/30/87 by Sri Pramod Bahadur Mathur, 6th Additional Sessions Judge, West Champaran (Bettiah), whereby and whereunder the learned Sessions Judge found charges under Secs. 498-A, 304-B and 328 of the Indian Penal Code against both the appellants and convicted and sentenced both the appellants to undergo rigorous imprisonment for ten years under sec. 304-B, Indian Penal Code, 1860 and to undergo rigorous imprisonment for one year under Sec. 328, Indian Penal Code, 1860 but did not pass any sentence u/s. 498-A, Indian Penal Code, 1860 and ordered that both the sentences to run concurrently. 2. As it appears from the written report of informant Amerika Ram (P.W. 9), the prosecution case, in short, is that his cousin sister Subhasini Devi (deceased) was married to appellant No. 1 Kashi Ram, son of Ramautar Ram (appellant No. 2) of village Bakulahar, P.S. Majhaulia, District West Champaran. The deceased Subhasini Devi was used to be tortured by her in-laws and appellant No. 2 Ramautar Ram used to beat her and even refuse to provide meal. As per FIR the deceased on 29.2.1992 at 2 p.m. consumed poison and died as she was being tortured by her in-laws. After deceased died her sasural members tried to perform her cremation without informing the informant but the informant knew about the incident and rushed to village Bakulhara and the appellants were not found there as they fled away from the village after leaving the deceased. 3. On the basis of written report of informant (P.W. 9) Majhawalla P.S. Case No. 24/92 dated 1.3.1992 for the offences under Secs. 498-A and 304-B, Indian Penal Code, 1860 was registered and thereafter investigation of the case was taken up by police. After completion of investigation police submitted charge-sheet against both the appellants under Secs. 498-A, 304-B and 328 of the Indian Penal Code, 1860 . Thereafter cognizance of the offence was taken by the Chief Judicial Magistrate vide order dated 9.9.1992 and the case was committed to the Court of Session vide order dated 3.11.1992. 4. As it appears both the appellants were tried for the offences under Sections 498-A, 304-B and 328, Indian Penal Code, 1860 and both the appellants were convicted and sentenced as indicated in paragraph 1 of this judgment. 5. 4. As it appears both the appellants were tried for the offences under Sections 498-A, 304-B and 328, Indian Penal Code, 1860 and both the appellants were convicted and sentenced as indicated in paragraph 1 of this judgment. 5. In order to prove and establish its case the prosecution examined as many as 11 witnesses. Defence did not examine any witness and is denial of charges and plea of innocence. 6. P.W. 1 Babulal Ram is a formal witness who proved inquest report of the dead body of deceased marked as Ext. 5. As per this witness Subhasini Devi (deceased) was wife of Kashi Ram (appellant No. 1). P.W. 2 Baliram Ram and P.W. 3 Sitaram are hostile witnesses. P.W. 4 Bandhu Ram is a tendered witness. P.W. 5 Madhusudan Shukla is doctor who performed post-mortem examination on the dead body of deceased Subhasini Devi and as per this witness following injuries were found on the dead body : (i) the eyes were found closed, mouth partially opened rigor mortis was present; (ii) no injury was found in any part of the body externally and internally; (iii) on dissection the internal organ like liver, spleen and kidney were found conjested; (iv) stomach contained semi-digested rice of about 4 grams. The portion of liver and kidney, portion of spleen, stomach with its contents were preserved for chemical analysis. The doctor has not given any definite opinion about the cause of death in absence of the report of chemical analysis. The doctor has not given any definite opinion about the cause of death in absence of the report of chemical analysis of viscera. The doctor has further given time elapsed since death within 24 hours of the post-mortem examination. The doctor has proved the post-mortem report which has been marked as Ext. 2. 7. P.W. 6 Yogendra Ram stated that Subhasini Devi was his sister and married to Kashi Ram (appellant No. 1) and about 7-8 months before accused-appellants Kashi Ram and Ramautar Ram killed his sister by administering her poison. This witness also stated that the appellants used to torture her and threatened to kill her if the demand towards dowry was not fulfilled. This witness further stated that his condition was not such as to meet their demand. This witness also stated that the appellants used to torture her and threatened to kill her if the demand towards dowry was not fulfilled. This witness further stated that his condition was not such as to meet their demand. As per this witness he was informed by one person who came to his house that accused-appellants Kashi Ram and Ramautar Ram administered poison to deceased and killed her. When this witness came to the house of accused-appellants Kashi Ram and Ramautar Ram he saw the dead body of his sister there but nobody was present in the house. This witness also saw gaj (froth) oozing from her mouth. Thereafter several villagers assembled but accused-appellants did not come there. This witness further stated that dead body of deceased was brought to hospital after the Sub-Inspector of Police came there where post-mortem examination of dead body was performed. This witness also identified both the appellants in the Court. This witness has also been cross-examined. 8. P.W. 7 Ramji Ram is the father of deceased Subhasini Devi. He has stated that his daughter married to accused-appellant No. 1 Kashi Ram about two and half years before the occurrence. He also stated that she was living at her husbands house where she had been abused and assaulted. The relatives of her husband used to torture her for the sake of demand of dowry. He learnt that his daughter is no more and when he came to the house of the accused-appellants he saw her dead body lying in a thached house. This witness also saw gaj was oozing from her mouth and there was foul smell. This witness further stated that his daughter was killed by administering poison to her. This witness stated that he remained in the house of the accused-appellants whole night. After the police came there her dead body was brought to Bettiah Hospital where post-mortem examination of her dead body was done. 9. P W. 8 Bachchan Ram stated that Subhasini Devi married to accused-appellant No. 1 Kashi Ram about three years back. He further stated that Subhasini Devi was killed by her husband and his relatives by administering poison. This witness along with other persons came to the house of appellants and saw froth was oozing from her mouth. The in-laws of Subhasini Devi did not behave with her properly for demand of dowry. He further stated that Subhasini Devi was killed by her husband and his relatives by administering poison. This witness along with other persons came to the house of appellants and saw froth was oozing from her mouth. The in-laws of Subhasini Devi did not behave with her properly for demand of dowry. He also stated that after he went to the house of accused-appellants they fled away. This witness has also been cross-examined. 10. P.W. 9 Amerika Ram stated that the occurrence took place about three years back. He further stated that Subhasini Devi was living in the house of accused-appellants who used to torture her after marriage for demand of dowry. On the date of occurrence he learnt from a person of the village of accused-appellants that accused-appellants by administering poison to Subhasini Devi killed her. When this witness went to the house of accused-appellants he saw the dead body of his sister. He also saw froth was oozing from her mouth and the accused-appellants fled away. He gave information about the occurrence to the police where his statement was recorded and he put his thumb impression over the said statement. Post-mortem examination of the dead body was done in the hospital and thereafter cremation of the dead body was performed. This witness has also been cross-examined at length. He denied the suggestion that he demanded money from the accused persons for doing compromise in the case. He also denied the suggestion that Subhasini Devi died due to illness. 11. P.W. 10 Umesh Prasad is a formal witness who has proved FIR marked as Ext. 3. P.W. 11 Uma Kant Sahay is the Investigating Officer of this case. He stated that he registered Majhaulia PS. Case No. 24/93 dated 1.3.1993 for the offences under Secs. 498-A and 304-B, Indian Penal Code, 1860 , on the basis of written report of Amerika Ram, the informant. He further stated that he inspected the place of occurrence and has given description of place of occurrence. He found dead body of Subhasini Devi wife of accused-appellant Kashi Ram kept on the floor in thatched room. He prepared inquest report of the dead body in presence of Babulal Rani, son of Bansi Ram and Baldeo Ram. He sent the dead body to M.J.K. Hospital for post-mortem. He found dead body of Subhasini Devi wife of accused-appellant Kashi Ram kept on the floor in thatched room. He prepared inquest report of the dead body in presence of Babulal Rani, son of Bansi Ram and Baldeo Ram. He sent the dead body to M.J.K. Hospital for post-mortem. He stated that he made query from the witnesses, namely, Ramji Ram, Yogendra Ram, Bachchan Ram, Baldeo Ram, Sitaram Ram and Babulal Ram and others and recorded their statements. He has submitted charge-sheet against the accused persons. He received the post-mortem report from hospital. He also stated that the doctor used to send the viscera report to the Forensic Science laboratory. He has stated that he has not sent the viscera of the dead body to Forensic Science Laboratory. He stated that he recorded the statements of witnesses Sitaram, Bandu Ram and Nandlal Ram who supported the prosecution story. He proved his endorsement in the written report marked as Ext. 4. He proved inquest report marked as Ext. 5. This witness has also been cross-examined. 12. Learned Counsel for the appellants submitted and contended that there is no direct evidence against the appellants so as to prove and establish the offence under sec. 304-B, Indian Penal Code, 1860 . Learned Counsel further submits that there is no evidence on the point that there was torture soon before death and so no case under sec. 304-B, Indian Penal Code, 1860 is made out. Learned Counsel also contended that evidence on the point of administering poison to the deceased by the appellants is contradictory, inasmuch as per FIR the deceased herself committed suicide by consuming poison but later on all the witnesses including informant gave a different version that the deceased was administered poison. Contention of the learned Counsel for the appellants is that in absence of evidence that deceased was administered poison no charge u/s. 328, Indian Penal Code, 1860 can be established. As regards offence u/s. 498-A, Indian Penal Code, 1860 , learned Counsel further submits that there is no evidence on record on the point. Learned Counsel for the appellants further submits that the judgment of conviction passed by the learned Trial Court is bad-in-law. 13. As against this, learned APP submits that there are sufficient materials on record to prove establish the charges levelled against the accused-appellants. 14. Learned Counsel for the appellants further submits that the judgment of conviction passed by the learned Trial Court is bad-in-law. 13. As against this, learned APP submits that there are sufficient materials on record to prove establish the charges levelled against the accused-appellants. 14. On careful consideration of the materials on record it appears that out of 11 witnesses examined, independent witness P.W. 2 Baliram Ram and P.W. 3 Sitaram turned hostile and P.W. 4 Bandhu Ram was tendered witness and so there is nothing in their evidence so as to prove and establish the prosecution case. As regards statements of other witnesses it is evidently clear that there is nothing in their evidence to prove and establish the prosecution case. There is no direct evidence that deceased was administered poison in the manner as alleged. In order to prove charge u/s. 304-B, Indian Penal Code, 1860 the prosecution must prove and establish that soon before death there was demand of dowry and torture. There appears no such convincing evidence on record so as to establish this fact. In absence of such evidence that there was demand of dowry and torture soon before death, in my view, no charge u/s. 304-B, Indian Penal Code, 1860 can be established. As regards charge u/s. 328, Indian Penal Code, 1860 , there appears contradictory evidence on the point that whether the deceased was administered poison or she herself committed suicide by consuming poison so much so doctor also has not stated that cause of death was administration of poison, inasmuch as the viscera was never sent for examination. On the point of administration of poison to the deceased by accused-appellants it appears that viscera report was not examined and cause of death could not be detected. It is difficult to believe that death was caused by poison and the said poison was administered by the accused-appellants. As regards charge u/s. 498-A, Indian Penal Code, 1860 , there is also no such evidence so as to take into consideration that deceased used to be subjected to cruelty by the appellants. 15. On careful consideration of the evidences brought on record and the reasons given in the aforementioned paragraphs I find and hold that the prosecution has not been able to prove and establish the charges under Secs. 498-A, 304-B and 328, Indian Penal Code, 1860 . 16. 15. On careful consideration of the evidences brought on record and the reasons given in the aforementioned paragraphs I find and hold that the prosecution has not been able to prove and establish the charges under Secs. 498-A, 304-B and 328, Indian Penal Code, 1860 . 16. In the result, this appeal is allowed and the judgment and order of conviction and sentence passed against the appellants is set aside. Both the appellants are acquitted and appellant No. 2 Ramautar Ram is discharged from the liabilities of his bail bonds. Since appellant No. 1 Kashi Ram has already served his punishment and released he is not required to be discharged from liability of bail bond.