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2011 DIGILAW 1052 (PAT)

Surendra Prasad v. State Of Bihar

2011-05-16

ANJANA PRAKASH

body2011
JUDGEMENT Anjana Prakash, J. 1. The appellants of both the Criminal Appeals have been convicted u/s.304B I.P.C. and sentenced to R.I. for ten years as also u/ss.201/34 and 498A I.P.C. and sentenced to R.I. for three years under each count by the 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No.317/2 of 1993/1996 by an judgment dated 16.5.1996/17.5.1996. 2. The case of the prosecution is that on 13.5.1993 the informant (P.W.6) received an information that his sister Nilam Devi had been murdered by her in-laws and when he went there he learnt that the accused persons had assaulted the deceased and caused her death by poisoning and had disappeared her dead body some where. This murder was committed for ends of dowry and the deceased had been married about 5-6 years back and had two children, aged about three years and one year respectively. 3. During trial the prosecution examined nine witnesses in all. Out of whom, P.W.1 is on the point that he had learnt about the death of the victim and when he went to the house of the accused and he found appellant Surendra Prasad and Sunil Kumar Manoj sitting there. He then went to inform the police and when he came back he searched for the dead body, where after it was recovered and it was sent for postmortem. He has admitted in his cross examination that he had only heard a rumour in the village that the deceased had been murdered by her in-laws. P.W.2 has been declared hostile. P.W.3 Khushboo Kumari is the sole eye witness of the occurrence, who was aged about three years at the time of occurrence. She has stated that the deceased had been assaulted by all the accused persons and that her father used to quarrel with her mother every now and then. Her attention was drawn to her earlier statement recorded by the Investigating Officer (P.W.9) and it appears that she had not implicated all the accused persons before the police and had merely stated that in fact the father had beaten his mother, due to which she had died. However, in her cross examination she also stated that her father had gone to call the doctor on the fateful day and when he came back she told him that her mother had consumed poison. However, in her cross examination she also stated that her father had gone to call the doctor on the fateful day and when he came back she told him that her mother had consumed poison. Therefore, there are two contradictory versions given by this minor child and it has to be considered as to whether she is completely trustworthy in the facts of the case. P.W.4 is the doctor, who conducted the postmortem on the dead body of the deceased and had found five abrasions on the person of the deceased but none of them were enough to cause the death and, therefore, the opinion in regard to death was reserved and the viscera was sent for chemical examination. P.W.5 is the Judicial Magistrate, who recorded the statement of the three years old Khushboo (P.W.3) u/s.164 Cr.P.C. and proved the same vide Exhibit 3. P.W.3 is the informant of the case, who supported the factum of demand of dowry by the accused persons and the fact that his sister was tortured by the in-laws, for which he had written letters to her matrimonial relatives which are Exhibit 4 to 4/3 series. P.W.3 is the father of the deceased, who was surprisingly not examined during investigation and produced as witness during trial. From his evidence it appears that he had proved certain letters written by the deceased but all of them were written much before the present occurrence. P.W.8 is the Investigating Officer, who was formal and had merely submitted charge sheet on the direction of his senior officials. P.W.9 is the Investigating Officer, who is on the point of recording the fard beyan and on the factum of recovery of the dead body as also that he had recorded the statement of Khushboo u/s.164 Cr.P.C. In addition to the oral evidence the prosecution produced in evidence Exhibit 11, which is the report of the Forensic Science Laboratory to the effect that Methyl Farathion was detected in the tissue of viscera which was normally used by Agriculturists in killing pests and was highly poisonous. 4. 4. From the evidence adduced on behalf of the prosecution, this Court has to examine whether the prosecution has successfully been able to prove the fact "(i) that the marriage had taken place within seven years of the death, (ii) that soon before her death the demands of dowry were made, (iii) the deceased was tortured for ends of dowry and (iv) that an unnatural death had been caused". 5. From the evidence of the prosecution witnesses, I find that there is no evidence that soon before her death the deceased had been tortured for ends of dowry since the letters which had been produced on behalf of the prosecution were remote in time. From the First Information Report I find that there is no reference to P.W.3, the minor child being a witness to the occurrence or that the informant had given hearsay information received from her before instituting the First Information Report. From the evidence of P.W.3, I find that she has given two types of evidence, one by which he has implicated the entire family members whereas the other in which he has only disclosed the complicity of her father. At the same time, she has stated that the deceased had herself consumed poison while her father had gone to search for the doctor. Under the circumstances, it is difficult to place complete reliance on the evidence of P.W.3 with regard to murder and therefore the appellants are acquitted of the charge u/s.304B I.P.C. 6. However, since P.W.3 cannot be disbelieved on the fact that the deceased used to be assaulted by her father, I am inclined to uphold the conviction of appellant Sunil Kumar Manoj u/s.498A I.P.C. However, the sentence is modified to the period already undergone by him during trial. His conviction u/s.201 I.P.C. is also maintained for the reason that the dead body was found in the fields substantiating the charge but the sentence is again modified to the period already undergone by him during trial. In view of such, Criminal Appeal No.141 of 1996 is dismissed with the aforesaid modifications. 7. As for the Criminal Appeal No.96 of 1996 is concerned, the same is allowed and the order of conviction u/ss.498A, 201/34 I.P.C. and sentence passed against the appellants on 16.5.1996/17.5.1996 by the 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No.317/2 of 1993/1996 is hereby set aside. 7. As for the Criminal Appeal No.96 of 1996 is concerned, the same is allowed and the order of conviction u/ss.498A, 201/34 I.P.C. and sentence passed against the appellants on 16.5.1996/17.5.1996 by the 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No.317/2 of 1993/1996 is hereby set aside. The appellants are discharged from the liabilities of their bail bonds.