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2007 DIGILAW 276 (PAT)

Yogendra Rai v. State Of Bihar

2007-02-07

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. All these four appeals arise out of the same Judgment of conviction and order of sentence and accordingly having been made analogous were heard together and are being disposed of by this common Judgment. 2. These appeals are directed against the judgment and order dated 13.8.2003 and 16.8.2003, respectively passed by Sri Jagdish Kumar Sinha, Vth Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 101 of 1990 whereby the learned trial court has been pleased to convict all the nine appellants and sentenced them to undergo R.I. for a period of ten years for having committed the offence under Sec.304-B of the Indian Penal Code. 3. The prosecution case in brief is that on 30.7.1989 at about 12 noon one Vashistha Narain Yadav, P.W.5, who happens to be the brother of the deceased Raj Banshi Sinha, lodged a fardbeyan before the police inter alia alleging that marriage of the deceased Raj Banshi Sinha was solemnized with Ranjeet Kumar Rai of village-Milki Kakarhatta on 28.6.1987 and for about the first six months after the marriage the couple enjoyed marital bliss but thereafter accused Ranjeet Kumar Rai, his mother Janki Devi, sister Dholan Devi, brother-in-law Kailash Rai, Yogendra Rai, the father of kailash Rai, started torturing the sister for dowry in the form of a Rajdoot Motorcycle and a TV. which they wanted the deceased to bring from her father and brother and threats were advanced to the effect that in the event of non-fulfilment of the demand she would be killed and her dead body would be disposed of. It was alleged that when the sister expressed the inability of her father and brother to comply with the demand the accused persons started torturing his sister in various ways and they also assaulted her and threatened her of dire consequences. It has also been alleged that Kailash Rai and his wife Dholan Devi used to advance threats to the sister that Ranjeet Rai would be married off elsewhere. It is also alleged that whenever the informant went to meet his sister at her sasural she would woefully narrate to him her tribulations and also made requests for being taken to her Naihar as she was apprehensive of dire consequences. It is said that the informant eventually brought his sister over in December, 1987 but all her ornaments worth Rs. It is said that the informant eventually brought his sister over in December, 1987 but all her ornaments worth Rs. 20,000.00 were kept by the accused persons. It is further said that after a few days the informant learnt that Ranjeet Rai, his brother-in-law, was going to be married to another girl named Sarita Kumari, the daughter of Bishundeo Rai, whereupon on 24.6.1988 he took his sister back to the sasural. It is alleged that after the informant left the sisters sasural accused Ranjeet Kumar Rai, his mother Janki Devi, brother-in-law Kailash Rai and Nagendra Rai assaulted her and threw her out from the marital home. It is said that the sister again returned to her sasural on 1.7.1988 but again the in-laws and their relations assaulted her for non-fulfilment of the dowry demand and on 17.7.1988 she was brutally assaulted by the accused persons for which she filed a complaint before the Chief Judicial Magistrate, Vaishali alleging commission of offences under Sections 494, 498-A I.P.C. as also Sections 3 and 4 of the Dowry Prohibition Act. It is also alleged that on 27.6.1988 accused Ranjeet Kumar Rai married Sarita Kumari. The further case of the prosecution is that on 30.7.1989 the informant on receiving news went to sasural of deceasedsister and found that his sister was lying dead resultant of burn injuries and all the accused persons were found absconding. On query being made the informant came to know that in the preceding night all the accused persons had killed his sister, Raj Banshi Sinha, after setting her on fire for non-fulfilment of the dowry demand and as such the death of the sister was a dowry death. 4. On the basis of the aforesaid fardbeyan Bidupur RS. Case No. 90 of 1989 came to be registered under Sec.304-B/34 I.P.C. against the ten persons named in the fardbeyan. The investigation commenced and it transpired in course thereof that offence under Sec.3/4 Dowry Prohibition Act also appeared to have been made out against the accused persons and for the same sanction for prosecution was sought for from the competent authority. The investigation commenced and it transpired in course thereof that offence under Sec.3/4 Dowry Prohibition Act also appeared to have been made out against the accused persons and for the same sanction for prosecution was sought for from the competent authority. It further appears that in the meantime a charge sheet under Sec.302/34 I.P.C. was submitted in court against all the accused on 11.10.1989 and subsequently after receipt of the sanction order a supplementary chargesheet was submitted in court on 4.1.1990 showing the commission of offence also under Sec.3/4 Dowry Prohibition Act. 5. Following the commitment of the case to the court of sessions a charge only under Sec.304-B I.P.C. simplicitor was framed against all the ten accused persons on 20.4.1991. 6. The defence of the accused persons is that they are quite innocent, have committed no offence and have been falsely implicated in this case as a counter blast and that the deceased Raj Banshi Sinha had died while cooking food. 7. The trial eventually commenced in process of which the prosecution examined altogether five witnesses out of eleven witnesses cited in the chargesheet and out of these five, P.W.3, Munsi Lal Sharma and P.W.4, Mahendra Rai, were tendered and P.W.1, Mishri Lal Rai and P.W.2, Awadhesh Rai appear to be chance witnesses. Curiously enough neither Rudal Rai, the father of the deceased nor Bechari Devi, the mother of the deceased who would have been the best witnesses to the demand for dowry have been examined and there is no explanation offered by the prosecution for their non-examination. Then again the I.O. and the Doctor have also not been examined and again there is no explanation for their non-examination. It is also worthy of note that two of the witnesses cited in the chargesheet Bir Bahadur Rai and Chandeshwar Rai on not having been examined as RWs. have been examined as D.Ws. It will not be out of place to mention here that during the pendency of the trial one of the accused, namely, Most. Janki Devi died and her name was deleted from the records. 8. have been examined as D.Ws. It will not be out of place to mention here that during the pendency of the trial one of the accused, namely, Most. Janki Devi died and her name was deleted from the records. 8. In support of the appeals the learned counsel for the appellants submitted that the evidence of the witnesses who were examined to prove alleged dowry demand, torture and harassment is not sufficient to prove commission of offence by the appellants and that the trial court ought not to have put reliance on them. 9. Let us now evaluate the evidence that has comeforth from the prosecution witnesses. P.W.1, Mishri Lai Rai is a resident of village-Shitalpur Kakarhatta who stated in court that some two years back he had visited Triloki Sharma in village-Milki Kakarhatta in the morning where he came to learn that the accused persons had assaulted the first wife of Ranjeet Rai and having killed her by burning disposed of the dead body. Although he identified the accused standing in the dock, he was not in a position to say as to how many persons actually figured as accused in the said case. In his cross examination the witness stated that the informant Bashistha Narain Yadav was not related to him and that he had given his statement before the police where he had stated that he had learnt about the alleged killing of the first wife of Ranjeet Rai from Triloki Sharma on the very day of occurrence. He further stated that none was present at the time when Triloki Sharma informed him about the death. The witness confessed that he had not met informant Bashistha Narain Yadav on the day of the occurrence and that he had the occasion to meet Bashistha later on several occasions when pleasantries only were exchanged. RW.2, Awadhesh Rai, stated in court that some two years back at about 7 in the morning while he was going to the house of Triloki Sharma to get some furnitures made, he saw a big crowd gathered in front of the house of Ranjeet Rai amongst whom Triloki Sharma was also present. RW.2, Awadhesh Rai, stated in court that some two years back at about 7 in the morning while he was going to the house of Triloki Sharma to get some furnitures made, he saw a big crowd gathered in front of the house of Ranjeet Rai amongst whom Triloki Sharma was also present. He further stated that on making query Triloki Sharma gave out that on the preceding night the in-laws of Ranjeet had come and in the night had brutally assaulted Raj Banshi Devi, the first wife of Ranjeet and that Ranjeet himself participated in the assault. The witness claims to have seen the dead body of Raj Banshi Devi which disclosed burn injuries and both her knees were tied with wire and the dead body was covered with a pink saree. In course of cross examination he admitted having stated before the police whatever he has stated in the examination in chief including having seen the dead body of Raj Banshi Devi and of the knees being tied with wire. 10. It would be apparent from a reading of the evidence of P.Ws 1 and 2 that they were chance and hearsay witnesses who had heard from Triloki Sharma of Ranjeets first wife Raj Banshi Devi having been burnt to death following brutal assault. Unfortunately, Triloki Sharma, the one who is said to have disclosed the story of death of Raj Banshi Sinha to these two witnesses has not been examined as he expired during the pendency of the trial. However, none of them have stated anything about any demand for dowry or of the death having been caused due to the non-fulfilment of the dowry demand. The evidence of these witnesses is of little help to the prosecution. 11. P.W.5, Bashistha Narain Yadav apart from being the informant is also the brother of the deceased. In his examination-in-chief he has stated that the occurrence took place on 29.7.1989 and at about 9 A.M. on 30.7.1989 he received information that his sister Raj Banshi Devi was assaulted by all the accused persons and while they were getting ready to dispose of the dead body surreptitiously, the mahal Chowkidar arrived whereupon all the accused persons fled away. In his examination-in-chief he has stated that the occurrence took place on 29.7.1989 and at about 9 A.M. on 30.7.1989 he received information that his sister Raj Banshi Devi was assaulted by all the accused persons and while they were getting ready to dispose of the dead body surreptitiously, the mahal Chowkidar arrived whereupon all the accused persons fled away. He further stated that on receipt of the information he went to village-Milki where he found a huge assemblage of person and on entering into the room he saw the dead body of his sister lying covered with a pink coloured terrycotton saree and on removing the same he found the entire skin of the body of his sister burnt and that both her legs were tied with wire and her both hands were reddish and it appeared that her neck had also been tied with something as a result whereof the flesh had become visible. The witness further stated that on inquiry from the members assembled there he learnt that all the ten accused persons were present in the house and were secretly gossiping amongst themselves in hushed voices and such gossiping continued till about 9 P.M. They also are said to have given out in the night sounds of crying were heard but presuming to be the same daily affair" they kept quiet. The informant further claims to have learnt that since it was raining in the night, therefore, the accused persons could not remove the dead body and when they attempted to do the same the Chowkidar arrived on seeing whom the accused persons took to their heels. The witness stated that the marriage of his sister with accused Ranjeet had been solemnized on 28.6.1987 and thereafter she had stayed in her sasural 5 & half months and whenever he went to meet his sister she would narrate to him the demand of the accused for a Rajdoot Motorcycle and a TV. set. She is also said to have informed him that as she had not received teachers training threats were advanced of Ranjeet being married off else-where. RW.5 also stated that when in December, 1987 he went to the Sasural of his sister for Ruksadi, accused Kailash Rai who was present there advised Janki Devi to keep all the ornaments of his sister which was worth Rs. 20,000/-. RW.5 also stated that when in December, 1987 he went to the Sasural of his sister for Ruksadi, accused Kailash Rai who was present there advised Janki Devi to keep all the ornaments of his sister which was worth Rs. 20,000/-. The witness further stated that on 21.6.1988 he received information that Ranjeet was going to marry another lady on 24.6.1988 at village-Sahriya whereupon he on that very day went to Village-Sahriya and requested Bishundeo Rai, the father of the second wife designate, Yogendra Rai, Kailash Rai and other not to permit Ranjeet second marriage so that life of his sister could be saved but he evinced no positive response. Accordingly, on 22.6.1988 he filed an application before the S.R, Vaishali and on orders from him the statement of his sister was recorded on 23.6.1988 by a Sub Inspector who assured of taking action. A sanha entry bearing no. 569 dated 23.6.1988 was made. It has been stated that on 24.6.1988 he learnt that Ranjeet Rai had married with another lady whereupon he sent his sister to her sasural where she was assaulted by the accused persons and taken to Chaksikandar wherefrom Jawahar, Krishnadeo Pandey, Ballabh Rai etc. took her back to the informant. He further stated that since the police had arrived on 23.6.1988 at the house of the informant the proposed second marriage of Ranjeet Rai was postponed to 27.6.1988. The informant claims to have accompanied his sister to Desari and Bidupur RS. in quest of help and co-operation but as there was no favourable response he came to Hajipur where he filed a petition before the S.R and S.D.O. Vaishali. The witness has stated that his sister had been murdered for the non-fulfilment of the dowry demand of a Rajdoot Motorcycle and a TV. and that she had been subjected to abuse and assault prior thereto her death. RW.5 further went out to state that on 28.6.1988 he filed another petition before the S.R and on 1.7.1988 he met the Officer Incharge of Bidupur RS. along with his sister who came to village-Milki where Yogendra Rai was apprehended and the others managed to flee. He further stated that on 2.7.1988 at the Bidupur RS. his signature was obtained on a sheet of paper and accused Yogendra Rai was released thereafter. along with his sister who came to village-Milki where Yogendra Rai was apprehended and the others managed to flee. He further stated that on 2.7.1988 at the Bidupur RS. his signature was obtained on a sheet of paper and accused Yogendra Rai was released thereafter. The witness further stated that on 8.7.1988 a panchayati was held and a compromise was arrived at between the parties. However, the accused persons did not abide by the terms of compromise and started torturing his sister and eventually on 18.7.1988 he was compelled to file a case. The witness went out to state that following filing of the case his sister wrote a letter to him and thereafter in October, 1988 a message was sent to him by Janki Devi, the motherin-law of his sister and on receipt of the same he went to Janki Devi where all the accused persons were present and here the demand for Motorcycle and T.V. was reiterated failing which his sister would be turned out of the marital home and two months time was granted to the informant to fulfil the demand. As the demand was not fulfilled the sister was again subjected to torture. The witness further stated that when his brother-in-law Ranjeet married another lady he made queries from Binda Rai who gave out that his sister would be killed and eventually she was done to death for non-fulfilment of dowry demand. In course of his cross examination P.W.5 stated that Janki Devi had summoned him some 8-9 months prior to the occurrence where she had reiterated her demands and the witnesses to such demands were Mishri Lal Rai and Awadhesh Rai. However, both Mishri Lal Rai and Awadhesh Rai figuring as P.Ws. 1 and 2 in their depositions in court have not supported the informants statement regarding the demand for Motorcycle and T.V. The witness further stated that he had reached the place of occurrence at about 9.30 A.M. and stayed for about 3 hours and although he himself did not go to the police station which was at the distance of about one kilometer, he did send information at around 9.30 A.M. However, the witness was not in a position to recall as to who was the person to whom he had sent to the police station. He further stated that the police reached the place of occurrence at around 10 A.M. and recorded his statement at about 12 noon after making inquiries from others. The informant was not in a position to say whether the inquest of the body of the deceased Raj Banshi Devi was prepared prior to the recording of his statement. He also could not recall to mind whether the police had recorded the statement of the other witnesses. The witness further stated that although the Chowkidar was available at the place of occurrence from before his arrival, he did not request the Chowkidar to send information to the police station. He also stated that Awadhesh Rai and Mishri Lai Rai were also present at the place of occurrence from prior to his arrival and he had not sent either of them to the police station for lodging information. 12. From the deposition of RW.5, it appears that although a demand for a Motorcycle and T.V. had been made, he had not communicated the same to his parents. Even otherwise the two witnesses Awadhesh and Mishri Lal who according to RW.5 were present when Janki Devi reiterated her demand have not come forward to corroborate the statement of RW.5. The evidence of P.W.5 does not appear to inspire confidence more so when neither Mishri Lai nor Awadhesh or even the parents of the informant and the deceased have not come forward to corroborate the prosecution case. It is further interesting to note that Bir Bahadur Rai and Chandeshwar Rai who had been figured as prosecution witnesses in the chargesheet were not examined by the prosecution and when they were examined by the defence as defence witnesses, Bir Bahadur Rai, in his deposition has stated that when he came to learn that Raj Banshi Devi had expired he went to the house of Ranjeet where he found the family members weeping and were awaiting the arrival of Bashistha Narain Yadav. He went on to state that on arrival of Bashistha Narain Yadav, the brother of the deceased Raj Banshi Devi, he tied the hands and legs of the deceased with wire and also started hurling abuses on the family members of Ranjeet Rai. The State Counsel in course of the cross examination did not put any suggestion to this witness. D.W.2, Chandeshwar Rai has also deposed in more or less similar terms. The State Counsel in course of the cross examination did not put any suggestion to this witness. D.W.2, Chandeshwar Rai has also deposed in more or less similar terms. D.W.2 also claimed to have gone to village of Bashistha Narain with information regarding the death of his sister and of Basisthas arriving at Ranjeets place and abusing his family members. Nothing could be extracted by the prosecution from this witness in course of the cross examination. 13. The informant has appeared in these appeals by filing Vakalatnama and sought to support the judgment of the trial court. He sought to impress that the presumption available in terms of Sec.113-B of the Evidence Act must be applied in the instant case. 14. The essential ingredients of an offence under Sec.304-B of the Indian Penal Code are (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances: (ii) such death must have occurred within 7 years of marriage; (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death. 15. It is significant from the definition of Sec.304-B I.P.C. that it was necessary for the prosecution to establish that the deceased must have been subjected to cruelty or harassment by her husband or relative of her husband soon before her death. The conduct of the family members of the deceased in the aforementioned backdrop assumes importance. The parents of the deceased did not make any complaint themselves and left it to the son who lodged the First Information Report and the prosecution witnesses cited in the chargesheet have not been examined and even the Doctor who could have deposed in respect of the causes and nature of death of deceased Raj Banshi Devi has not been examined. The Chowkidar who had arrived at the place of the occurrence has also not been examined and the objective findings of the I.O. are missing as he has not been examined. With RWs. 1 and 2 figuring as chance and hearsay witnesses, RWs. 3 and 4 being tendered only the uncorroborated deposition of P.W.5 is available. The Chowkidar who had arrived at the place of the occurrence has also not been examined and the objective findings of the I.O. are missing as he has not been examined. With RWs. 1 and 2 figuring as chance and hearsay witnesses, RWs. 3 and 4 being tendered only the uncorroborated deposition of P.W.5 is available. Nothing has been extracted by the prosecution from the D.Ws. in support of the prosecution case. 16. One Basudeo Prasad Yadav, the brother of the informant as also of the deceased was examined as court witness. He stated that the sanha given by Raj Banshi Devi had been recorded by Bal Karan Singh and in course of his cross examination he stated that such recording was made two years prior to the occurrence. 17. Admittedly, there can be no direct evidence of dowry death and it has to hinge on circumstantial evidence. In the instant case, there is no cogent evidence adduced by the prosecution to establish that the accused persons had demanded any dowry. Even the story of deceased being subject to cruelty prior to her death has not been established by cogent evidence beyond all reasonable doubts. 18. Admittedly, the Investigating Officer was not examined at the trial and rightly many questions remained un-an-swered. In the absence of cogent evidence the presumptions under Sec.113-B of the Evidence Act cannot be applied in the instant case. Presumption under Sec.113-B of the Evidence Act is a presumption of law. On proof of the essentials mentioned therein it becomes obligatory on the court to raise a presumption that the accused caused the dowry death but in the instant case the ingredient of an offence under Sec.304-B has not been proved beyond all reasonable doubts. 19. Having regard to the peculiar features of this case the demand of dowry or any harassment being the cause for the death of the deceased cannot be said to have been established beyond all reasonable doubts. 20. For the reasons aforementioned the impugned Judgment and Order cannot be sustained and is accordingly set aside. The appeals are allowed. The appellants are acquitted of the charge and are discharged from the liability of their respective bail bonds. 21. It has been stated at the Bar that except Ranjeet Rai, all other appellants are enjoying the liberty. 20. For the reasons aforementioned the impugned Judgment and Order cannot be sustained and is accordingly set aside. The appeals are allowed. The appellants are acquitted of the charge and are discharged from the liability of their respective bail bonds. 21. It has been stated at the Bar that except Ranjeet Rai, all other appellants are enjoying the liberty. Accordingly, the appellant, Ranjeet Rai, is directed to be set at liberty forthwith unless wanted in connection with any other case. Later on: After the common Judgment of Criminal Appeal Nos. 396 of 2003, 405 of 2003, 407 of 2003 and 421 of 2003 was pronounced, it was pointed out by the learned counsel for the appellants in Criminal Appeal No. 396 of 2003 that apart from Ranjeet Rai, Yogendra Rai and Kailash Rai, Appellant Nos. 1 and 2 of Criminal Appeal No. 396 of 2003 were also in custody and that since the appeals have been allowed, they too deserve similar benefits as appellant, Ranjeet Rai. I have perused the records of Criminal Appeal No. 396 of 2003 and it appears therefrom that by order dated 4.1.2006 the prayer for bail of these two appellants was rejected and they have remained in custody ever since. In that view of the matter, let the names of Yogendra Rai and Kailash Rai also be added in paragraph-21 of the Judgment. Accordingly, the appellants, Yogendra Rai and Kailash Rai in Criminal Appeal No. 396 of 2003 are directed to be set at liberty forthwith unless wanted in connection with any other case.