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2007 DIGILAW 1057 (PAT)

Dilip Yadav v. State Of Bihar

2007-07-03

ABHIJIT SINHA

body2007
Judgment ABHIJIT SINHA, J. 1. The appellant herein alongwith his father Suresh Mandal and mother Matri Devi were charged under Sections 304B/34, 302/34 and 201 I.P.C. for causing "dowry death" of Sushila Devi, wife of the appellant herein in Sessions Trial No. 114 of 1991 arising out of Madhepura P.S. Case No. 91 of 1990 and Sri Ram Vyash Ram, the then 1st Additional Sessions Judge, Madhepura, by his judgment and order dated 2nd February, 1993, while acqutting Suresh Mandal and Matri Devi of all the charges convicted Dilip Kumar Yadav under Sec. 304B I.P.C. and sentenced him to undergo an imprisonment for 7 years. 2. The prosecution case can be culled from the fardbeyan of informant Devendra Prasad Yadav, the brother-in-law (Bahnoi) of deceased Sushila Devi given at 11.30 A.M. on 15.5.1990, wherein it was alleged, inter alia, that at around 10 A.M. earlier that day information was received from Devendra Mehta, a Peon in Madhepura P.W.D., Sub-Divisional Office, that his sister-in-law (sall) Sushila Devi who had been married to Dilip Kumar Yadav some three years back had died and her dead body was lying in the angan. It is said that upon receipt of the information he went to the sasural of Sushila Devi and found the dead body lying in the angan, covered with a gendri and her parents-in-law and husband had fled from the house. On lifting the gendri it was found that Sushilas whole body had been burnt. On inquiry he learnt that the accused persons had committed the murder in the night and had absconded and the dead body had been lying in the angan ever since. It is said that the accused persons constantly kept demanding a cow and an ox and cash in dowry which Sushilas father could not fulfill due to his financial constraints. It has further been alleged that the father-in-law of Sushila Devi on the alleged night forcibly committed rape on her which she protested to and began to raise alarm and in order to suppress that alarm and conceal the fact of rape they murdered the deceased and thereafter with a view to conceal this fact they sprinkled kerosene oil on her body and burnt her to death. It has also been mentioned that prior to committing the offence the accused persons had tied her wrists with rope. It has also been mentioned that prior to committing the offence the accused persons had tied her wrists with rope. The further case of the prosecution is that the dead body of the deceased was dragged from her bedroom to the angan with a view to conceal the dead body somewhere else intending to screen legal evidence. On the basis of the said fardbeyan Madhepura P.S. Case No. 91 of 1990 was registered under Sections 302, 201, 304B/34 I.P.C. against the 3 persons and after due investigation charge- sheet was submitted against them under the same provisions. 3. In support of its case the prosecution sought to examine as many as 9 witnesses and Md. Hafez was examined as a Court witness who came to prove the fardbeyan, inquest report and seizure-list respectively marked as Exts. 5, 6, and 7. Out of the 9 witnesses P.W. 8 Indra Narain Singh and P.W. 9 Anil Kumar are formal witnesses who have simply proved the formal F.I.R. and post mortem report respectively marked as Exts. 3 and 4. P.W. 6 Devendra Prasad Yadav is the informant of the case and P.W. 7, Sitaram Yadav, has been declared to be hostile. 4. The defence stand is total denial of the prosecution case and have also urged that it was a case of suicide by Sushila Devi. 5. At the trial, as stated earlier, charges under Sections 302/34, 304/34 and 201 I.P.C. has been framed against all the accused who pleaded not guilty and claimed to be tried. However, no witness was examined by the defence. As stated earlier the learned Addl. Sessions Judge after consideration of the materials available on record and hearing the submissions advanced by both the parties while acquitting Suresh Mandal and Matri Devi of all the charges convicted the appellant herein for commission of offence under Sec. 304B I.P.C. 6. The impugned judgment and order has been sought to be assailed on several grounds by the learned Amicus Curiae on behalf of the appellant. The impugned judgment and order has been sought to be assailed on several grounds by the learned Amicus Curiae on behalf of the appellant. It was first submitted that although the recital in the fardbeyan is of the informant having been informed by his colleague in the P.W.D. Office Devendra Mahto but the said Devendra Mahto has not been examined nor family members and the parents of the deceased, as also the I.O. and doctor have not been examined and for this adverse inference should be drawn against the prosecution. In this connection it was sought to be submitted that as per allegation cash and cattle was demanded as dowry and the best witnesses for this demand would have been the parents of the deceased but in the instant case there is no plausible explanation for the non-examination of the parents of the deceased as also the I.O. and the doctor. Even the people of the neighbourhood of the sasural of the deceased have also not been examined. The learned Amicus Curiae sought to submit that the non-examination of the I.O. and the doctor and not bringing on record as an exhibit the post mortem report is prejudicial to the prosecution case as question in respect of the important contradictions in the statement of the other witnesses could not be proved on account of non-examination of the I.O. 7. It has next been contended that although in the fardbeyan accused Suresh is said to have forcibly raped Sushila in her room and to silence her she has been killed by means of strangulation and to conceal evidence of the crime she had been burnt and dragged to the angan, but there is no legal or medical proof of the same and this too would falsify the prosecution case. In this connection the learned Amicus Curiae sought to point out that it is in evidence that all the articles in Sushilas room was found undisturbed which is contrary in the sense that if the rape was committed on Sushila there must have been some sort of struggle resulting in disturbance to the articles in the otherwise tidy room. Even the I.O. did not find sufficient cause to add a charge under Sec. 376 I.P.C. in the charge- sheet. 8. Even the I.O. did not find sufficient cause to add a charge under Sec. 376 I.P.C. in the charge- sheet. 8. It was further sought to be submitted that the alleged story of death for non- fulfilment of dowry does not stand to reason as the evidence of P.W. 4, the brother of the deceased. Sushila is otherwise inasmuch he has testified of the conduct of the Sushilas parents-in-law and husband towards him being gentle which is not in conformity of hostility which would presumably be the consequential result of alleged non-fulfilment of dowry demand. 9. The death of the deceased Sushila is not in dispute. It is also not in dispute that she had sustained burn injury as would be evident from the testimony of the material witnesses. Since the doctor has not been examined nor the post mortem report has been legally proved, it is difficult to say with certainty as to whether Sushila has been done to death by strangulation and then burnt to conceal legal evidence of her murder. The post mortem report (Ext. 4) has been proved by an Advocates Clerk who was competent to prove the writing of Dr. K.C. Jha who has held the post mortem report but he was incompetent to prove the contents of the said report. Merely being marked as an exhibit does not give effect to the contents of the post mortem report. The learned trial court in paragraph 6 of the judgment has opined that: "the death of the deceased is admitted. All the material witnesses have come to say that the deceased died by burnt injury. The burnt injury as it appears from P.W. 2 was not accidental rather is intentional. These injuries might be caused by the deceased herself as plea has been taken by the defence or by the accused of this case. It is quite apparent from the evidence of the witnesses that there is no eye-witness to the occurrence and so we are to extract the truth from the evidence, circumstances and the facts of the case as it appears from the evidence that the deceased was sleeping in her bed room at the time of occurrence. The half burnt mat is the proof of this fact. The case of the prosecution is that after murdering the deceased she was brought in the court-yard of Suresh Mandal. The half burnt mat is the proof of this fact. The case of the prosecution is that after murdering the deceased she was brought in the court-yard of Suresh Mandal. There is no denial to that effect nor anything has been brought before the court to show that the place of occurrence is somewhere else. The defence has not crossed the witnesses on this point. As such it stands established that the occurrence took place in the bed room of the deceased. Now in the circumstances of the case the another question arises, whether the husband of the deceased in the alleged night was bed partner of the deceased or not. The occurrence, as it appears took place in the night of 14/ 15th May 90. The time was such that even on alarm the nearby persons could not assemble to save the deceased. The selection and choosing of time does not indicate that the victim herself made her to be a prey of such burnt. The witnesses who have been examined and cross-examined in the case have not said so nor anything has been brought in their cross-examination that her husband was not with her at the time of occurrence. Both were young having sexual instinct alive to part each other at all the time. In such circumstances I am unable to hold that he was not with her at the time of occurrence. Now it is to be seen whether any action was taken by her husband to put out the fire, if she herself set fire in her body. There is nothing to show that he took any action to extinguish the fire in which she was burning alive. The husband of the deceased as it appears from the circumstances did not take any action to put the fire under control. There is nothing to show before the court that he raised alarm at first, about this occurrence. The defence is completely mum on the point raised here. It goes to show that the accused persons were simply standing there to see as to how she was burning. If it is taken into consideration it would be hold that the death of the deceased was not with her own will and hence it cannot be held that it is a case of suicide". 10. It goes to show that the accused persons were simply standing there to see as to how she was burning. If it is taken into consideration it would be hold that the death of the deceased was not with her own will and hence it cannot be held that it is a case of suicide". 10. The reasoning given by the learned Trial Court does not stand to reason for the fact that the P.O. has not been proved and the deposition of the witnesses do not confirm the story of strangulation and burning of deceased Sushila at the hands of the accused. None of the witnesses are eye witnesses to the occurrence and it cannot be said that it were the accused alone who strangulated and burnt deceased Sushila after her death. The presumption of Sushila being strangulated and her burning being post mortem cannot be taken for granted since the doctor has not come to prove the post mortem. It would be too naive to come to a presumptive finding that Sushila at first has been throttled to death and to screen the evidence she has been burnt. The non-examination of the I.O. is also prejudicial to the defence inasmuch the important contradictions in the testimony of the witnesses have not been proved. Even otherwise the non-examination of the independent witnesses is a factor which goes against the prosecution. Even the next door neighbours do not speak of the demand for dowry or of cruelty having been practised on the deceased prior to her death. They, in fact, would have been the best witnesses apart from the parents-in-law of the appellant herein. The prosecution has lost its chance of examining the parents-in-law of the deceased or the I.O. 11. The learned Amicus Curiae in justifying and asserting that though the deceased was shown to have died in the house of her in-laws, there was complete paucity of evidence that soon before her death the deceased was subjected to cruelty or harassment by the appellant or any of his relatives and that such cruelty or harassment was in connection with demand for dowry so as to attract the mischief of Sec. 304B I.P.C. 12. Since these ingredients which happen to be significant factors to fasten guilt of the appellant, is conspicuously wanting on the record I am afraid that the finding of the court below alone could not form the basis for recording conviction under Section 304B I.P.C. Merely because death had taken place in suspicious circumstances within 7 years of the marriage it cannot be held as a gospel truth that the appellant must be made answerable for the offence under Sec. 304B I.P.C. It seems that the Trial Court has not properly and objectively assessed the probative value of testimony of witnesses and due to which the serious inconformity that has crept in the prosecution evidence remained unnoticed and hence I find that finding of guilt and sentence recorded by the Court below is unsustainable. 13. Due regard being had to the facts and circumstances of the case I am of the opinion that the appellant is entitled to a benefit of doubt and acquittal. Accordingly the appeal succeeds and the appellant is acquitted of the conviction under Section 304B I.P.C. and the resultant sentence of imprisonment of 7 years. The appellant appears to have been released on bail in pursuance of order dated 14.2.1994 passed by this Court. He is discharged from the liabilities of his bail bonds.