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2007 DIGILAW 206 (JHR)

Tribeni Sao And Hardu Rana v. State Of Jharkhand

2007-03-28

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Since both the appeals, arise out of common judgment, are heard together and are being disposed of by this common judgment. 2. Both the appeals are directed against the judgment of conviction and order of sentence dated 8.8.2001 and 13.8.2001 passed by First Additional Sessions Judge, Hazaribagh in Sessions Trial No. 39/95, whereby and whereunder the learned Sessions Judge held appellants Hardu Rana and Nageshwar Rana guilty under Sections 304B and 201, IPC and convicted and sentenced them to undergo RI for seven years and three years respectively. However, sentences were directed to run concurrently. Appellant Tribeni Sao was held guilty under Section 201, IPC only and he was convicted and sentenced to undergo RI for three years. 3. The brief facts leading to these appeals are that one Bina Devi, daughter of Ramlal Rana, PW 3 was married with appellant Nageshwr Rana 3-4 years before the alleged date of occurrence. According to the informant, his son-in-law used to demand Rs. 10,000/- from the deceased by way of dowry for which she was being ill-treated and tortured by the. family members of the appellants. Further stated about ten days prior to her death appellant Nageshwar came to his house and demanded Rs. 10,000/-and on his showing inability, he went away threatening the informant. Further stated next day his daughter Bina came and informed him that she has been assaulted and sent to bring the money. Thereafter the informant along with her daughter went to her in-laws with 16 kgs of rice and one sort However, he was not treated well in the house of the appellants, so he returned next day. As per prosecution version, within seven days on 9.9.1993 appellant Tribeni along with others arrived at his house and informed the informant regarding the death of his daughter. Thereafter PW 5, his son, along with other witnesses went to the house of appellants to find Bina dead with apparent marks of violence on her body. According to the informant, when they inquired about this incriminating circumstance, they were threatened by the villagers and forced to declare before the police that Bina died due to diarrhea as well forced to sign on a written application. 4. According to the informant, when they inquired about this incriminating circumstance, they were threatened by the villagers and forced to declare before the police that Bina died due to diarrhea as well forced to sign on a written application. 4. The informant preferred to lodge complaint before the Keredari police and ultimately his statement was recorded by Keredari police on 3.10.1993, on the basis of which Keredari P.S. Case No. 64/93 was registered under Sections 304B, 201/34, IPC against eight persons. Police after investigation submitted charge- sheet. The trial of the appellants along with others was committed to the Court of Sessions where charges were framed against all eight persons under Section 201/34, IPC and seven persons under Section 304B, IPC. The appellants pleaded not guilty and claimed false prosecution. Their specific plea was that Bina Devi died due to diarrhea and the informant side has taken part in the last rites. However, the learned trial Court after evaluating the evidences on record found and held these three appellants Hardu Rana, Nageshwar Rana and Tribeni Sao guilty and sentenced them as mentioned above. 5. The main points raised in these appeals are that the learned trial Court has not considered the improbabilities of the prosecution case. Learned Counsel for the appellants further pointed out that on such belated FIR reliance cannot be placed as per decision of Honble Apex Court. According to the counsel for appellant Tribeni Sao has no concern with the alleged offence. It was submitted that appellant Tribeni Sao being an outsider, he only informed the informant regarding the death of his daughter and cannot be assumed to have participated in the offence under Section 201, IPC. Learned Counsel for the appellants Hardu and Nageshwar further submitted that prosecution has not been able to bring beyond doubt that married had taken place within seven years of her death. According to Sri P.P.N. Roy, the learned trial Court has mentioned the period of marriage only 3-4 months, which is apparently incorrect. Sri Roy further submitted that entire prosecution suffers from credibility as the witnesses, PW 7 and 9 have admitted that marriage has taken place ten years before their evidence. As such the conviction under Section 304B, IPC is not maintainable. 6. I have gone through the materials on record to appreciate the submissions of the counsel for the appellants. Sri Roy further submitted that entire prosecution suffers from credibility as the witnesses, PW 7 and 9 have admitted that marriage has taken place ten years before their evidence. As such the conviction under Section 304B, IPC is not maintainable. 6. I have gone through the materials on record to appreciate the submissions of the counsel for the appellants. The prosecution case admittedly was lodged after more than three weeks of the alleged occurrence. In the present case the dead body could not be subjected to post-mortem examination. Therefore, the whole prosecution depends upon the version of the prosecution witnesses, who alleged that they saw Bina with marks of violence on her body on 9.9.1993. The expination given by the informant that FIR could not be lodged immediately after 9.9.1993, finds no place in the fardbeyan to disclose what happened after 9.9.1993 and before 3.10.1993, when the fardbeyan was recorded by the police. According to the prosecution case on 9.9.1993 they were not allowed to lodge any FIR and forced to disclose before the police-that Bina Devi died due to diarrhea. Unfortunately, this is the defence version consistently pleaded before the trial Court by examining DWs. DW 3 is the doctor, who asserted that he has treated Bina on 9.9.1993 and she died due to diarrhea, for which he has issued a death certificate, Ext. A prepared in carbon process. Therefore, the death of Bina Devi is not disputed on 9.9.1993. Now the prosecution having alleged that she was tortured and subjected to unnatural death is required to prove it with materials on record. 7. Five of the witnesses examined on behalf of the prosecution, PW 1, Laxman Rana, PW 2 Tulsi Yadav, PW 6 Sitaram Sao, PW 7 Govind Sao and PW 9 Basudeo Sao are co-villagers and stated different periods of the marriage of the deceased with the appellant Nageshwar Rana. My attention was drawn towards the fact given in the fardbeyan by PW 3 Ramlal Rana that marriage has taken place only 3-4 months back and again towards the question put to the appellants by the trial Court under Section 313, Cr PC, in which the same period 3-4 months prior to the alleged occurrence has been mentioned. Learned Counsel stressed on this point that in such circumstance the evidence of other witnesses become falsified. Learned Counsel stressed on this point that in such circumstance the evidence of other witnesses become falsified. However, he fairly conceded that the marriage is admitted as per convicts also much before 3-4 months. Therefore, there is no dispute that marriage has taken place much before this occurrence. However, Mr. Roy pointed out that even as per statement of PWs 7 and 9, the marriage has taken place about ten years back. Therefore, the offence, if any, could not have been committed under Section 304B, IPC. The submission appears to be far fetched. If the marriage has taken place as per defence version in 1985, no witness has come to support it neither in cross-examination the villagers have given different periods of the marriage of the victim with the appellant. The witnesses PWs 2, 3, 4 and 5 have consistently stated that appellant Nageshwar used to demand dowry and further tortured the victim. However, in the fact of the case where the FIR has been lodged admittedly after 24 days requires to be explained by the prosecution. 8. On consideration of the fardbeyan, Ext. 1, it does not appear that during this period after 9.9.1993 and 3.10.1993 any effort was made by the informant or family members of the deceased to lodge any FIR. The explanation that on 9.9.1993 PWs 1 to 5 and others had gone to the house of the appellants, who were not allowed to lodge any FIR under protest but these witnesses have admitted that next day after cremation of the dead body they returned to their village. Nowhere in their evidence they have asserted that they tried to inform the police or any authority regarding this incident, although they were free to do it according to their wishes. The fact therefore remains that after 9.9.1993 and before 3.10.1993 the informants side were not under any compulsion and free to approach the police in this context. The witnesses have also admitted that on 9.9.1993 they were asked to State before the police that Bina Devi died due to diarrhea. The IO of the case has not been examined neither anything on record has been brought to support the fact by the prosecution that actually any signed paper was handed over to Keredari police on 9.9.1993, as mentioned above. The IO of the case has not been examined neither anything on record has been brought to support the fact by the prosecution that actually any signed paper was handed over to Keredari police on 9.9.1993, as mentioned above. In absence of the dead body which was already cremated, it is very difficult to accept the version that the dead body bore marks of violence. The circumstances, therefore, are not explained in which the prosecution has failed to lodge FIR or informed the police regarding the incident right after 9.9.1993. In such circumstances where the FIR was lodged after 24 days, reliance cannot be placed on oral version of PWs 1 to 5 in the facts of the case. 9. My views are further strengthened from the evidence on record that the learned trial Court has found and held that other five charge-sheeted accused, vide para 18 had no hands in the alleged crime. This apparent mistake has been committed by the learned trial Court in giving details of the period of marriage as well as non-application of mind towards the evidence on record, further makes the prosecution case doubtful. In such case where belated fardbeyan has been recorded, the prosecution is required to prove beyond all reasonable doubts the involvement of the appellants in the alleged crime. The death certificates produced by the defence as Ext. A further creates reasonable doubts on the nature of death, which deceased Bina Devi has suffered. I have further gone through the impugned judgment minutely. The learned trial Court having relied upon the allegation that they were threatened by the appellant Tribeni Sao, mukhia of the village and others to disclose before the police that Bina Devi died natural death, is also found not proved. The witnesses have specifically stated that the village Garikala was situated at a distance of 50 kilometers from the house of the informant. They have asserted that they were informed by appellant Tribeni Sao regarding the death, after which they went in a vehicle to Garikala and in the evening the dead body was cremated after thy disclosed before the police that she died due to diarrhea. The absence of PW 3 Ramlal during the whole episode and narrating the incident before the police after 24 days makes it more doubtful. The absence of PW 3 Ramlal during the whole episode and narrating the incident before the police after 24 days makes it more doubtful. If PW 5 Inderdeo Rana has actually gone to Garikala on 9.9.1993 he could have been best person to narrate those things before the police. The IO has completed the investigation before PW 8 Ashok Kumar took charge as Circle Inspector on 21.12.1993 and mechanically completed investigation and submitted the charge-sheet, according to him, he has recorded the statement of witnesses already examined by previous IO. However, the case diary, vide para 18 mentions that the plea of death due to diarrhea has been taken by appellant Hardu Rana. The assertion made by PW 8 Ashok Kumar appears to be incorrect vide paras 79 and 80, which only mention that when he examined witnesses PWs 1, 2, 3, 4, 5, 7, 8 and 9 have supported their earlier statements. PWs 6, 7 and 9 have admitted that they were not examined by the police. 10. Having considered the above mentioned facts and circumstances, I find that the prosecution in the present case has not been able to explain the delay in lodging the FIR. It is further found and held that in absence of any evidence on record that Bina Devi actually died unnatural death due to tortures being committed by the appellants for non-fulfillment of dowry demands, the charge under Section 304B, IPC cannot be sustained. The charges under Section 201, IPC accordingly, fails. 11. In the result I find and hold that the present appeals have got merit in them and deserve to be allowed. Accordingly, both the appeals filed by the appellants are hereby allowed and judgment and order of conviction and sentence dated 8.8.2001 and 13.8.2001 are hereby set aside. The appellants are on bail, be released from the liability of their bail bonds.