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2011 DIGILAW 1170 (PAT)

Dhanma Devi @ Danma Devi & Anr. v. State Of Bihar

2011-06-23

DHARNIDHAR JHA

body2011
JUDGEMENT Dharnidhar Jha, J. 1. The present appeal has been preferred by the two appellants, mother and son between them to challenge the correctness and propriety of the judgment dated 27.1.2006 passed by the learned Presiding Officer of Fast Track Court No.-V, Jamui in Sessions Trial No. 916 of 1996 by which the two appellants were found guilty of committing offences under Sections 304B/34 and 201/34 IPC and was directed to suffer rigorous imprisonment for seven years and one year respectively on each of the two counts. The appellants were directed to pay a fine of Rs. 1,000/- each for their individual conviction under Section 201 IPC, else to suffer simple imprisonment for two months. 2. The prosecution case is contained in Ext.-2 the written report dated 1.4.1996 of informant Yugal Paswan (P.W. 12) who happened to be the brother of deceased Jaya Devi who was undisputedly married to appellant Rabindra Paswan some times in the year 1990. The Gauna ceremony had been performed in 1993 and she started living with the appellant Rabindra Paswan. It is also an admitted position that the lady did not bear any child and on the day of the occurrence, was residing in the house of her husband. It was alleged that for last 4-5 months appellant Rabindra Paswan was asking the deceased to ask her father to provide a motorcycle to him, only then he will allow her to live with him. The lady related (sic narrated ?) the above demand of appellant Rabindra Paswan to the informant when she visited her parents house and also stated that she was being ill-treated and tortured on account of the above demand and was further stated that she was asked to leave the matrimonial house and if she continued there she would be killed. The informant stated that he intervened and brought the appellant Rabindra Paswan to reason and thus bought some peace for his sister. In January, 1996 the father of the informant visited the deceased in her matrimonial house and on coming back from there he also narrated the tales and woes of the lady on account of non-fulfilment of the demand for a motorcycle by appellant Rabindra Paswan so much so that the father was asked to take the lady with him as the demand of the appellant was not being fulfilled. The informant stated that his family was not in a position and as such could not fulfill the demand of appellant Rabindra Paswan. 3. The informant (P.W. 12) was residing in Bhurkunda (now in the State of Jharkhand) on 31.3.1996. P.W. 10 Kuresh Paswan came to him and stated that his sister had died on 26.3.1996 on account of being administered poison by the accused persons and further that her dead body had been cremated. He passed on the above information to his family members and he alongwith his father came to the house of the appellants and learnt there that his sister had been administered poison and killed and her dead body had been cremated. When the informant met appellant Dhanma Devi and her other family members and wanted to know the whereabouts of his sister they simply lost control of themselves and pointed out that they already had stated to the informant that if the demand for the motorcycle was not fulfilled the lady would be killed. The informant claimed having made enquiries from the neighbourers of the appellants to come to the conclusion that her sister had been murdered and her dead body had been cremated. 4. On the basis of Ext.-2, the written report the FIR of the case Ext.-1 was drawn up and the investigation proceeded with. On conclusion of the same, the two appellants were sent up for trial which ultimately ended in the judgment of conviction and the order of sentence passed against each of them. 5. During the course of the trial, the appellants denied their complicity and claimed themselves to be innocent and further claimed that they had falsely been implicated. 6. Twelve witnesses were examined, out of whom the informant was examined as P.W. 12. Out of the other witnesses Sudama Devi who was the grandmother of appellant no. 2 Rabindra Paswan was declared hostile. None of the witnesses examined so far in the trial was an eye witness to the occurrence nor had any first hand information as to how the deceased had been killed or how did she meet her end. Witnesses, like, P.Ws. 1 and 2 Bangali Yadav and Parkash Paswan alongwith P.W. 3 Sitaram Tanti and P.W. 5 Kedar Yadav stated that the deceased was a patient of heart disease and she died of that disease. Witnesses, like, P.Ws. 1 and 2 Bangali Yadav and Parkash Paswan alongwith P.W. 3 Sitaram Tanti and P.W. 5 Kedar Yadav stated that the deceased was a patient of heart disease and she died of that disease. Other witnesses, like, P.W. 6 Garib Paswan, P.W. 7 Seoshankar Paswan, P.W. 8 Kapildeo Paswan, P.W. 9 Suresh Paswan and P.W. 10 Kuresh Paswan, who had passed on the information about the death of the deceased to P.W. 12, were all hearsay witnesses, not having stated anything to make them competent enough as witness on any aspect of the prosecution story. P.W. 11 Devendra Narain Singh was a witness of formal character, having exhibited FIR as Ext.-1 and the written report as Ext.-2. P.W. 12 Yugal Paswan was the informant as pointed out a bit earlier. 7. On consideration of the evidence of P.W. 12 what appears to thfs Court is that the judgment of conviction which was recorded by the learned Trial Judge against the two appellants, was not only unwarranted on account of there being no supporting evidence available to him, but appears completely outside the evidence which was produced by the prosecution during the trial. P.W. 12 in paragraph-2 has stated that his sister was issueless and she was residing in her matrimonial house with all facilities and comforts. He did not remember whether she had stated anything to him when she had visited her parents house and further that she died in her matrimonial house and he received information about the death when he was at Bhurkunda. As such, he came to Yamunipur the native place of the two appellants where he met appellant no. 1 Dhanma Devi but could not meet appellant no. 2 Rabindra Paswan. He made enquiry from appellant no. 2 Dhanma Devi but he did not remember as to what was the cause or reason given by appellant no. 1 to P.W. 12 as regards the death of the deceased Jaya Devi. No one of the Village-Yamunipur stated to P.W. 12 as to how the deceased had died. 8. Thus, on perusal of the evidence of P.W. 12 in paragraphs-2 and 3 what appears is that he had not supported any of the statements made in Ext.-2. 1 to P.W. 12 as regards the death of the deceased Jaya Devi. No one of the Village-Yamunipur stated to P.W. 12 as to how the deceased had died. 8. Thus, on perusal of the evidence of P.W. 12 in paragraphs-2 and 3 what appears is that he had not supported any of the statements made in Ext.-2. The curious aspect of the matter was that in spite of having not supported the written statements he had submitted to the police upon which the whole trial was gone into, the prosecution was still not attempting to declare him hostile so as to impeaching the credibility of the witness and thus the evidence in examination-in-chief in para- graphs-2 and 3 were left undisturbed and unchallenged. The witness P.W. 12 who was making an initial allegation of demand for a motorcycle and torture of the lady, on that account and the story of demand and torture being related by her to her family members, has not supported himself. He was also not supporting that the deceased was murdered rather from the evidence of P.W. 12 what appears to this Court was that after having met appellant no. 1 Dhanma Devi and after having been told the reason for the death of the deceased Jaya Devi, he was quite satisfied and was no longer complaining about the acts of the accused persons much less to point out that it could be a criminal act. If this was the evidence which was produced by the prosecution during the trial, then it was out and out undesirable that the learned Trial Judge should have convicted the appellants for offences under which they were sentenced. The undesirability of the conviction in lack of admissible appropriate evidence had its own bad effect on the life of the appellant no. 2 Rabindra Paswan as he had to undergo complete seven years of imprisonment which was directed by the learned Trial Judge to be undergone by him in spite of there being no evidence to justify his conviction and order of sentence. This Court was extremely pained when it was pointed out to it that the appellant Rabindra Paswan after completing his term of sentence as inflicted by the learned Trial Judge, has now been released from custody. This Court was extremely pained when it was pointed out to it that the appellant Rabindra Paswan after completing his term of sentence as inflicted by the learned Trial Judge, has now been released from custody. If illegal acquittal could have its effect on the society and its peaceful existence as it may dent the faith of the people in judiciary and our system of administration of justice, illegal conviction could equally be destructive of the life of a person convicted and sentenced. There could be none either to account for the loss of seven precious years in the life of appellant Rabindra Paswan who had served imprisonment baselessly on account of completely erroneous approach of a Judge. This court cannot do much about it because a Judge trying a case is the best Judge to appreciate the evidence. But it is high time that the Judges who man the trial courts are impressed upon to appreciate the evidence in its true spirit and never hesitate to extend the benefit of doubt or never hesitate to record a finding on the charge not being proved. 9. I have already noted that the conviction was baseless and erroneous. The same is, as such, set aside alongwith the sentences passed upon the two appellants. The appeal is allowed and the two appellants are acquitted. Appellant Dhanma Devi is on bail. She shall stand discharged from the liabilities of her bond. Appellant Rabindra Paswan, as informed by his counsel, stands released on account of having completed seven years of his sentence and, as such, there is no need to pass any order. But to be cautious about him, the court directs that in spite of the information rendered by the counsel in case the said Rabindra Paswan is still continuing imprison, he must be released forthwith, if not wanted in any other case.