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2007 DIGILAW 511 (JHR)

Bahadur Yadav v. State of Jharkhand

2007-06-26

AMARESHWAR SAHAY, D.P.SINGH

body2007
JUDGMENT D.P. Singh, J.-This appeal is directed against the judgment of convict on and order of sentence dated ,30.7.2002 passed by the learned 1st Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 528/98, whereby and whereunder the learned court below held the appellants guilty under Sections 302, 201 and 120B IPC and sentenced them to undergo RI for life under Section 302 IPC and three years RI under Section 201 IPC. However, no separate sentence has been passed under Section 120B IPC. 2. Brief facts leading to this appeal are that appellant Bahadur Yadav was married with Nirmala Devi, neice of the informant PW 5, Bhuneshwar Yadav in the year 1994 according to Hindu customs. Further case of the prosecution is that just one week earlier of the occurrence, the appellant no. 1 requested the parents of Nirmala that they should take back their daughter because they have not given one buffalo and Rs.10,000/- as agreed by them during the marriage. According to the informant, the father of the deceased, PW 2 Baijnath Yadav expressed his inability to fulfil the demand, on which the appellant Bahadur Yadav went back threatening that they should reap the consequences of such refusal. According to the informant, after this PW 6 Indrajeet Yadav went to the house of the appellants to bring back the deceased but she was not allowed to come alongwith him by the appellants. Further case of the prosecution that is in the morning of 17th December, 97 appellant Bahadur Yadav came to his in-laws and informed that Nirmala along with his son has fled away from his house. This led to active search by the informant side till 19.12.97 when they came to know that two dead bodies were floating in a well situated in Hareya Dohar fields. 3. The informant and villagers went near the said well to find that the dead bodies of Nirmala and her son Guddu was floating. Police was informed, which arrived in the morning of 20.12.97. The dead bodies were brought out in presence of the villagers and witnesses. Inquest report was prepared and fard beyan of PW 5 was recorded, which bore the signature of PW 6 also. Patan police registered Patan P.S.Case No. 178/97 under Sections 302/201/34 IPC and 3/4 of the dowry Prohibition Act against both the appellants. The dead bodies were sent for post mortem examination. Inquest report was prepared and fard beyan of PW 5 was recorded, which bore the signature of PW 6 also. Patan police registered Patan P.S.Case No. 178/97 under Sections 302/201/34 IPC and 3/4 of the dowry Prohibition Act against both the appellants. The dead bodies were sent for post mortem examination. Police further investigated the case and finally submitted charge sheet against both of them. Their case was committed to the Court of Session for trial, where charge was framed against both the appellants on 19.2.99. The appellants pleaded not guilty and claimed false prosecution. However after examining witnesses, the learned trial court found and held both the appellants guilty under Section 302/201/120B IPC and sentenced them as aforesaid. 4. The present appeal has been preferred mainly on the ground that the learned trial court has convicted the appellants on circumstantial evidence which was incomplete and not reliable. According to Mr. RC. Tripathy, learned counsel for the appellants, the prosecution has failed to prove any dowry demands and further that due to non-fulfilment of such dowry demands, the appellants have committed the murder. According to Mr.Tripathy, the witnesses examined on behalf of the prosecution, do not support the prosecution case at all. It is also pointed out that the conduct of the appellant Bahadur Yadav by informing his in-laws in the morning of 17.12.97 regarding missing of Nirmala and her son, makes the whole prosecution story false. It was also pointed out that the parents of the deceased have not lodged the FIR but the informant taking advantage of the circumstances lodged this false case with ulterior motive. According to Mr. Tripathy, not a single circumstance would be noted by the trial court to indicate the complicity of the appellants in the crime. He further suggested that the deceased might have caused death of her son out of anger and committed suicide by throwing herself in the well. In this context, the learned counsel further pointed out that the appellant was accompanying the informant's side in search of his wife and son. Therefore, the appellants may be acquitted of the charges. 5. We have anxiously considered the submissions made on behalf of the appellants in this case. The prosecution has examined altogether eight witnesses, out of which PW 3, Krishna Murari Yadav and PW 4, Bikhu Yadav have not supported the prosecution case and declared hostile. Therefore, the appellants may be acquitted of the charges. 5. We have anxiously considered the submissions made on behalf of the appellants in this case. The prosecution has examined altogether eight witnesses, out of which PW 3, Krishna Murari Yadav and PW 4, Bikhu Yadav have not supported the prosecution case and declared hostile. PW 1, Yasmanti Devi and PW 2, Baijnath Yadav as the parents of the deceased, asserted that the appellants have demanded Rs. 10,000/- and one buffalo from them. It is admitted fact on record that the marriage took place in 1994 and death occurred in December, 1997. PW 1 has further admitted that the deceased was docile and not used to complain against her husband. She has admitted that on 17th December,97 the appellant has come to her house saying about missing of the deceased. PW 2 supported his wife, PW 1 on this point and stated that the appellant has arrived at his house before sunrise. He admitted that during search on 17-18th December,97 his son-in-law, appellant Bahadur was with him. According to him, well was situated south of the village. 6. PW 7, Dr. R.P. Sinha, who conducted the post mortem examination on the dead body of Nirmala and Guddu, found tongues were protruding out vide the mouth and there was fracture of survical vertibra. In his opinion, the cause of death was asphyxia as a result of throttling. He further pointed out that death might have occurred more than 72 hours before. Therefore, the death having been caused in the night of 16/17th December, 97 or early in the morning of 17th December, 97, stands corroborated with the medical evidence. 7. PW 5, Bhuneshwar Yadav, the informant and uncle of the deceased, has specifically mentioned that on 20.12.97 he came to know about the presence of dead bodies in the well and went there to identify them. This witness further asserted that in the morning of 17.12.97 the appellant has arrived his house at about 8 AM and informed him that Nirmala has left the house taking bus alongwith her son. He further asserted that when he asked why she has left the house, the appellant disclosed that some assault has taken place on the lady. He asserted and supported the allegation that earlier also the appellant used to assault Nirmala for non-fulfilment of dowry demand of Rs. 10,000/- and one buffalo. He further asserted that when he asked why she has left the house, the appellant disclosed that some assault has taken place on the lady. He asserted and supported the allegation that earlier also the appellant used to assault Nirmala for non-fulfilment of dowry demand of Rs. 10,000/- and one buffalo. PW 6, Indrajeet Yadav has supported his father on this point and asserted that he went to inform the police in the morning, after which the police arrived at the PO in the morning of 20.12.97. He has also supported the allegation that appellant used to demand Rs. 10,000/and one buffalo from them. This statement that appellant informed the informant's side in the morning of 17.12.97 regarding missing of Nirmala, is admitted fact on record. PW 8 Arjun Yadav, I.O. of the case, has conducted the investigation in this case. He supported the prosecution case as stated before him by PW 5. He was suggested that someone else has committed the murder of the deceased, which has been noted in his case diary. 8. All the witnesses have been cross-examined at length by the defence asserting that they were implicated falsely in this case without any valid reason. They asserted that just before one week of the occurrence appellant Bahadur has asked them to take back the lady because they have not given the amount and the buffalo as promised earlier. Much time was spent on the question whether the informant and PW 2 were joint or separate and their presence when the dead body was taken out. PW 5 has further asserted that PW 6 went to the police station in the morning of 20.12.97, after which the police arrived. This witness has admitted that no assault was taken place in the his presence upon Nirmala but he knew that there was demand of dowry from the side of appellants. He was suggested by the defence that some one else committed murder of Nirmala and her son. PW 6 has been cross-examined on similar point whereas he has specifically mentioned in his examination in chief that one week before the occurrence he has gone to the house of appellants to take back Nirmala but he was refused. He frankly admitted that village Nawakhas was a small village and during search he also accompanied them. 9. PW 6 has been cross-examined on similar point whereas he has specifically mentioned in his examination in chief that one week before the occurrence he has gone to the house of appellants to take back Nirmala but he was refused. He frankly admitted that village Nawakhas was a small village and during search he also accompanied them. 9. According to defence specifically pleaded before the trial court by examining herself, appellant Lakshminiya Devi asserted that in the morning of 17.12.97 the deceased left the house alongwith her son in their absence. There are contradictions in her contention and that of appellant Bahadur, who claims to have informed the in-laws regarding the missing of Nirmala in the morning itself before 8 AM. DW 2, appellant Lakshminiya asserted that she has gone to tender the cattle in the field when the deceased left the house in the morning of 17.12.97. In December and winter the cattle taken outside in the fields must not be early in the morning. Normally the cattle are taken out after sunrise and the family members take their breakfast and meal particularly in winter season. Therefore the plea taken by DW 2 appears. to be after thought. Further, according to the information given to the informant's side by appellant Bahadur early in the morning itself shows that it may be preplanned because in the villages when the informant house is situated not far from village Nawakhas, the deceased may not have occasioned to board the bus to flee away from the house of the appellant. 10. Further we find that nothing important has come on record from the cross-examination of PWs 5, 6 and 8 on this point that the murder has been committed by someone else. The defence, during cross examination has not brought on record specifically who might have murdered the deceased and her son and for what reason. The appellants during their statements under Section 313 Cr.P.C. have not specifically asserted these things and not taken any specific defence rather DW 2, who is appellant no. 2, asserted that she has fled away from the house and thereafter she cannot say how she died. The appellants during their statements under Section 313 Cr.P.C. have not specifically asserted these things and not taken any specific defence rather DW 2, who is appellant no. 2, asserted that she has fled away from the house and thereafter she cannot say how she died. When the appellants admittedly were in the company of the deceased person in the night of 16/17th December, 97 and morning of 17.12.97 and she is reported to be missing alongwith her son, burden lies upon them to show under what circumstances Nirmala alongwith her son has left the house of the appellants in the night of 16/17th December,97 and then dead bodies were found floating in the village well after two days. The onus further remains on them to prove under what circumstances she has received the injuries particularly when we find that the death of Nirmala and her son Guddu was result of strangulation and not by drowning. The appellants, who were guardians as well as mother-in-law and husband of the deceased, are presumed to take care of their daughter-in-law and grandson. In this context the explanation given by the defence that she has fled away without any valid reason appears to be not tenable. The death having occurred in violent manner in the night of 16/17th Decemmber, 97 has rightly been attributed by the prosecution and the trial court on the appellants. In such circumstances the presumption that Nirmala has been done to death with her son stands supported by the circumstances of the case. These facts and circumstances have been discussed by the learned trial court in para 19 of the judgment. We find no valid reason to differ with it. 11. However, it has been found and held by the trial court that the prosecution has failed to prove the charges against the appellants under Sections 3/4 of the Dowry Prohibition Act and acquitted them of the charges. We further find that the prosecution has not brought on record any positive evidence that appellant Lakshminiya Devi, mother-in-law of the deceased, in any way. has taken active part in the killing of deceased Nirmala Devi and her son Guddu. She is admittedly a lady aged above 60 years at the moment. Accordingly we find and hold that the prosecution has not been able to prove beyond all reasonable doubts the guilt of appellant Lakshminiya Devi under Sections 302/201 IPC. has taken active part in the killing of deceased Nirmala Devi and her son Guddu. She is admittedly a lady aged above 60 years at the moment. Accordingly we find and hold that the prosecution has not been able to prove beyond all reasonable doubts the guilt of appellant Lakshminiya Devi under Sections 302/201 IPC. In such circumstances, this appeal, as preferred by appellant Lakshminiya Devi is allowed and her conviction and sentence under Sections 302/ 201 IPC is, accordingly, set aside and she is acquitted 'of the charges. She being on bail is discharged from the liability of her bail bond. 12. Having considered the facts and circumstances, discussed above, we find that the conviction and sentence of appellant Bahadur Yadav under Sections 302/ 201 IPC deserves to be confirmed. 13. Accordingly, the present' appeal is allowed in part with respect to appellant No.2, Lakshminiya Devi and is dismissed as preferred by appellant No.1, Bahadur Yadav. In this manner, this appeal stands disposed of. Amareshwar Sahay, J.-I agree.