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2011 DIGILAW 1455 (PAT)

BUTAN MUSHAR v. STATE OF BIHAR

2011-07-15

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JUDGMENT Dharnidhar Jha, J. The present appeal has been preferred by the solitary appellant to question the propriety and correctness of judgment of conviction dated 13.09.2006 passed by the learned Presiding Officer of Fast Track Court No.II, Ara, Bhojpur in Sessions Trial No.387 of 2003. 2. The appellant was charged under Sections 304B, 201 IPC and 3 and 4 of the Dowry Prohibition Act with other persons who were acquitted of those charges while the appellant was only convicted by the impugned judgment and was put on trial together with them. 3. The prosecution case emanates from the petition of complaint bearing no.1338C of 2002 which was filed by Dhankeshwari Devi, mother of the deceased Etwariya Devi and a copy of which was forwarded to the Sahar police station, on the basis of which the complaint petition, FIR of Sahar P.S.Case No.131 of 2002 was drawn up and the case was investigated into. 4. It was stated that appellant Butan Mushar was married to the deceased Etwariya Devi in Baishakh, 2002 and thereafter the deceased went to live with her husband in his house on the next day of Dashahra. The appellant himself came to the house of the appellant to take away his wife with him and on that occasion he demanded two boars and a cycle, which as per the appellant was promised to be given as dowry to him at the time of marriage, but could not be given. It was stated that the complainant had spent the maximum at the time of the marriage as per his capacity, but could not fulfill the demands of the appellant as a result of which he used to renew the demand which was to be fulfilled by the complainant and others. The appellant was allegedly assaulting and illtreating the deceased and, lastly, when the complainant went to the house of the appellant on 17.11.2002, the deceased narrated the entire story of her torture and illtreatment which was meted out to her by the present appellant and his parents. The other relatives of the appellant were also asking her to take back the deceased with her. The other relatives of the appellant were also asking her to take back the deceased with her. While the complainant and her husband were leaving the house of the appellant, the deceased also accompanied them but she was forcely taken back by the appellant and at that time also the appellant and others had assaulted her very badly and took away the deceased by dragging her to their house. Subsequently, they claimed having learnt about the deceased being killed by the husband. 5. As pointed out, the case was investigated into by the police after instituting the FIR and forwarded the accused persons for trial which ultimately ended in the conviction of the appellant and acquittal of the remaining five accused persons. During the course of hearing of the present appeal, I was taken through the evidence of witnesses. What I find from the consideration of the evidence of the witnesses is that the prosecution had utterly failed to prove the charges even against the present appellant. The first defence in the prosecution case was that Dhankeshwari Devi, who was the complainant of the case and mother of the deceased and who was witness some of the important parts of the occurrence, like, being told by her daughter about the tales of torture as also the accused persons beating the deceased up in her presence while the deceased was coming with her to her house was not examined. Thus, not only the contents of the complaint petition was not being corroborated by the complainant on account of her non-examination, but the evidence of other witnesses also appear corroborating nothing on account of the absence of the complainant as a witness. Besides, on perusal of the evidence of different witnesses, what I find is that the evidence of P.W.1 Ram Jee Mushar who happened to be the father of the deceased was not admissible for the reason that in paragraph-3 of his evidence, he stated that he had never given any statement in connection with the incident to any one. Not only that, he stated that he learnt about the torture, illtreatment and killing of her daughter from one of his Mausas whose name, he has not been able to state in spite of being put a specific question in that connection. Not only that, he stated that he learnt about the torture, illtreatment and killing of her daughter from one of his Mausas whose name, he has not been able to state in spite of being put a specific question in that connection. Thus, what appears to me is that the husband of the complainant, i.e., the father of the deceased P.W.1 was also probably making statement in court out of his imagination. This appears more probable when he was admitting in paragraph-5 of his evidence that he was giving evidence on the demand of boars and a cycle as dowry for the first time in court. In paragraph-6, he stated that the accused had never demanded any dowry from him. 6. As regards the evidence of P.W.2, he appears to be one of the relatives of the complainant and P.W.1 and his evidence in paragraph-8 indicates as if the marriage was dowry-less and further that his evidence on death of the lady Etwariya Devi was completely in conflict with the basic prosecution story which is that the death of the lady had taken place some times on 18.11.2002, but P.W.2 in paragraph-8 has stated that the lady was killed only within 2-4 days of her marriage which is quite contrary to the basic prosecution story. So far as the evidence of P.W.3 and P.W.4 is concerned they appear to be hearsay witnesses. P.W.3 Lal Babu Mushar claimed having learnt about the incident from Dhankeshwari Devi and on account of non-examination of Dhankeshwari Devi his evidence becomes admissible. Likewise, Ramdeo Ram Mushar appears learning from persons about the incident without specifying a single name as to who had told him about the details of the occurrence. Not only that, he appears a witness set up by the complainant as he admitted in his cross-examination that he was cited as a witness without being consulted. 7. Considering the above features of the evidence of different witnesses, I find that to place reliance on the evidence of such witnesses could be simply indulging in mis-appreciation of fact and misreading of evidence and that they were not reliable persons. 7. Considering the above features of the evidence of different witnesses, I find that to place reliance on the evidence of such witnesses could be simply indulging in mis-appreciation of fact and misreading of evidence and that they were not reliable persons. The witnesses appear completely aloof and alien to the incident and they were probably motivated for any other reason to come together, to firstly frame some facts to create a story and then to appear in court of law to support the story by statements which were coming out of their respective imaginations. In the above background, the suggestion which appears given by the accused to different witnesses, like, P.W.1 or P.W.2 that the deceased had run away from their house and had become traceless appears one of the probabilities. 8. In the result, the appeal succeeds. The judgment of conviction and the sentence passed upon the appellant are hereby set aside. The appellant is acquitted of the charges on account of not being proved. The appellant is in custody. He shall be released forthwith, if not wanted in any other case.