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2012 DIGILAW 1670 (PAT)

DINESH SAH v. STATE OF BIHAR

2012-12-11

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. The four appellants of the above noted two appeals have been found guilty under Sections 304B/34 and 498A of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for ten years under Section 304B/34 of the Indian Penal Code. No separate sentence has been imposed for the offences punishable under Section 498A of the Indian Penal Code. 2. Dinesh Sah (appellant of Criminal Appeal No. 398 of 1998) is the husband of the victim lady, he has remained in custody for 3 years and 7 months in this case. Giridhari Sah (appellant no. 2 in Criminal Appeal No. 421 of 1998) is the father-in-law of the victim lady, whereas Jalo Devi (appellant no. 3 in Criminal Appeal No. 421 of 1998) is the mother-in-law of the victim lady. Md. Siraj (appellant no. 1 in Criminal Appeal No. 421 of 1998), who is a tailor by profession and supposedly a friend of the husband, has also been made accused in this case. 3. The First Information Report was instituted by Nago Paswan, who is the village Chowkidar. According to his statement, he had learnt that the wife of Dinesh Sah had died during the night. He went to the house of Dinesh Sah and found that he was not present in the house and he came to know that Dinesh Sah had beaten his wife on the previous night and had forcibly administered her poison. When the condition of the wife of Dinesh Sah deteriorated, Dinesh Sah took his wife to the hospital. When he reached the hospital, he found that Veena Devi was lying dead. Thereafter, he instituted this case. 4. It may be noted here that the doctor (PW 8 Dr. Prem Chand Kumar) who has conducted postmortem on 05.06.1995 has found that there were no postmortem or ante-mortem injury inflicted on her body, accept that her organs were congested. No legation mark was found on the neck or any other part of the body and as such, the doctor could not ascertain the cause of death, and therefore, the viscera was taken out, sealed and sent to the Forensic Laboratory for examination. No legation mark was found on the neck or any other part of the body and as such, the doctor could not ascertain the cause of death, and therefore, the viscera was taken out, sealed and sent to the Forensic Laboratory for examination. The fact that no external injury was found on the body of the deceased would indicate that the case made out in the First Information Report, that the deceased had been severely assaulted during the night, is not substantiated by the medical evidence. In the cross-examination, the doctor has stated that she could not detect the smell of poisoning when she conducted the postmortem. At the same time, she has said that the physical examination cannot be the only ground for coming to the conclusion that poison was administered to the deceased. She has offered a voluntary statement that the case does not appear to be one of diarrhea. 5. This Court will now go directly to the report of the Forensic Laboratory (Exhibit-7). The Forensic Laboratory report reveals that the viscera were received in the Forensic Laboratory on 04.09.1996. The jar contained some dark brown fluid, which could have been decomposed tissues of viscera. It is quite obvious that the doctor has found that the viscera were already decomposed. In such circumstances, the doctor has opined that he detected THIMET in the dark brown fluid described above. It is said that THIMET is a organe-phosphorus pesticides, which is commonly used in agriculture for killing pests and is highly poisonous. Exhibit-7 appears to be a photocopy of the original document. This document has been provided by PW 10 Mahendra Sah, as the original has been sent to the Police Station. The date of the report is 27.09.1996. It was prepared one year after the viscera were sent to the Forensic Laboratory. It may be noted that as per the statement of the doctor, PW 8, the following organs were preserved in hypertonic saline solution in a sealed jar and sent to the Forensic Laboratory. They were liver, spleen, left lung, heart, stomach with its content and kidney. The Forensic Laboratory refers to only one part of the body, which was supposedly sent to the Forensic Laboratory, which is a decomposed viscera. They were liver, spleen, left lung, heart, stomach with its content and kidney. The Forensic Laboratory refers to only one part of the body, which was supposedly sent to the Forensic Laboratory, which is a decomposed viscera. It is, therefore, difficult for this Court to rely solely on the report of the Forensic Laboratory to hold the appellants guilty of administering poison to the deceased. It appears that the Investigating Officer of this case has not considered the procedure to be adopted while sending samples of the viscera to the Forensic Laboratory, as per the provisions of the Police Manual. 6. Taking all these facts into account, the Court will now examine the oral evidence led in this case. The informant Nago Paswan has been examined as PW 1. This witness has supported the case as made out in the First Information Report. His statement is hearsay. He has not disclosed as to which of the villagers had told him that Veena Devi was assaulted by the appellant Dinesh Sah. Being a Chowkidar of the village, he has merely reported that a girl, who was recently married, had died in the hospital. The case made out that she was badly assaulted or poisoned is a mere speculation. 7. In this context, Counsel for the appellant refers to the inquest report prepared by the Investigating Officer (Exhibit-5) to submit that the inquest report indicates that the colour of the deceased had turned black. This finding of the Investigating Officer is not substantiated by the doctor’s report, who has not noted this fact, but has specifically stated in the cross-examination that on physical examination of the body, he could not find any sign that the lady had consumed poison. The doctor’s report, in this context, refers to the external appearance of the subject, who was allegedly poisoned. It would appear that signs of irritant and corrosive poisons are likely to be found in the oesophagus, stomach and intestines, which may lead to hyperaemia, softening, ulceration of the mucous membrane and perforation of the organs (Modi). No such signs were detected when the postmortem of the deceased was conducted. 8. Thus, this Court cannot give much importance to Exhibit-5 as it does not clinch the issue regarding administration of poison. 9. PW 2 Prabhu Narayan Sah is the father of the deceased. No such signs were detected when the postmortem of the deceased was conducted. 8. Thus, this Court cannot give much importance to Exhibit-5 as it does not clinch the issue regarding administration of poison. 9. PW 2 Prabhu Narayan Sah is the father of the deceased. He has stated that his daughter was married one year prior to the occurrence. She came home after 8-months when she disclosed that there was a demand of a three-piece suit, watch, television and tape-recorder. She made a complaint that her husband used to beat her up. Later, she went back to her In-laws house, without there being any dispute or further demand such as her husband refusing to take her back unless their demands were satisfied. He claims that he learnt about the occurrence from one Radhey Shyam, his cousin brother-in-law (SALA). He went to Choti Balia and learnt from the neighbours regarding the occurrence. His statement was taken at the Police Station. He suspects that his daughter has been poisoned because of the non-fulfillment of the demand of dowry. 10. PW 3 Maya Devi is the mother of the deceased. She has made a similar statement as that of PW 2, except she has made certain contradictions inasmuch as she has stated that her daughter did not came to her parents’ house after her Ruksati, which took place sometime back. She claims to have learnt about the demand in the month of ‘Jeth’, however, she has not given details regarding the source of such informant. She admits that she had never visited her daughter after she had got married. PWs 2 and 3 are the only two important witnesses in this case who have come forward with a case that there was a demand of dowry and that their daughter was not well treated in her husband’s home. Both of them have not given any details as to when the demands started or how they learnt that their daughter was ill-treated at her In-laws house and the cause of the death. Radhey Shaym, who could have disclosed how he had learnt about the occurrence, has not been examined. The role of the co-accused i.e. mother-in-law, father-in-law and stranger to the family Md. Siraj remains unexplained by these two witnesses, except to say that the In-laws did not treat their daughter well have not made any specific allegations. Radhey Shaym, who could have disclosed how he had learnt about the occurrence, has not been examined. The role of the co-accused i.e. mother-in-law, father-in-law and stranger to the family Md. Siraj remains unexplained by these two witnesses, except to say that the In-laws did not treat their daughter well have not made any specific allegations. In fact, PW 1 goes so far as to say that the demand was made by Md. Siraj on behalf of Dinesh Sah, the husband of the deceased, which is absurd proposition and cannot be given much credence or taken seriously. 11. The prosecution has also produced PW 4 Bharat Sahu, PW 5 Deo Narain Sah and PW 6 Hari Kishore Sah, who are the co-villagers and claim that they too learnt that there was a demand by the husband and that Veena Devi was ill-treated by her In-laws. PW 4 Bharat Sahu is the School Teacher and his school is at a distance of 15 kms. from the house of the appellants. There is no reason why the Court should believe the case as made out by Bharat Sahu as he has no connection with the parents of the deceased. 12. Similarly, PW 5 Deo Narain Sah claims that he learnt that there was a demand of a cupboard, television and watch which contradicts the statement of PW 2 regarding the nature of demand. According to PW 5, he learnt about the said demand from PW 3. He claims that he had occasion to visit Chhoti Balia because his cousin lives there. In the same breadth, he has stated that he had visited the village only once. No specific date etc. is mentioned for making the said visit. Even if, he had visited Chhoti Balia, there was no reason for him to have made enquiries about Veena Devi, or for that matter, meet as he has no prior connection with her. 13. PW 6 Hari Kishore Sah is a Teacher and claims to be the gotia of PW 2. He has no connection with Chhoti Balia and yet he claims that he meet Veena Devi, who disclosed that there was a demand of a cycle and a television. 14. PW 7 Ramanuj Choudhary is a hear-say witness. 15. 13. PW 6 Hari Kishore Sah is a Teacher and claims to be the gotia of PW 2. He has no connection with Chhoti Balia and yet he claims that he meet Veena Devi, who disclosed that there was a demand of a cycle and a television. 14. PW 7 Ramanuj Choudhary is a hear-say witness. 15. The evidence of PWs 4, 5, 6 and 7 do not inspire any confidence as they had no occasion or special relationship with the father and mother of the deceased to learn or know about the facts surrounding the marriage of Veena Devi and as such, their evidence has to be rejected outright. 16. PW 9 Mohammad Moinuddin Khan, Investigating Officer of this case, claims that he examined the witnesses. In his cross-examination, he has stated that he visited the place of occurrence and did not find any sign that there was a ‘mar-pit’ or presence of any poisonous substance in the house. Strangely enough, he has not examined the witnesses who were living in the boundary of the house of Dinesh Sah by which he could have ascertained as to whether any untowards incident had taken place the previous night. He admits that PW 3 had not stated before him that the daughter was married four years previously or that she was ill-treated because of non-fulfillment of the demand of dowry. In fact, the Investigating Officer has stated that he had not made any investigation and examined the villagers regarding the fact whether there was a demand of dowry. He claims that he has made the entire investigation on the basis of the statement of the father of the deceased (PW 2) and the informant (PW 1) of this case. 17. It would appear from the oral evidence that the witnesses have presumed that Veena Devi had been done to death by her husband and had thus alleged (a) that there was a demand and (b) that Veena Devi was beaten up by her husband during the night she had died and was forcibly administered poison, although the medical evidence does not support this aspect of the matter. 18. 18. In view of the discrepancies in the medical evidence and the evidence of the witnesses, this Court finds it difficult to convict Dinesh Sah under Section 304B and 498A of the Indian Penal Code and as such, gives him the benefit of doubt and accordingly acquits him for the charges levelled against him. 19. So far as appellants of Criminal Appeal No. 421 of 1998 are concerned, they are given a clean acquittal as there is no material against them with respect to harassment or demand of dowry, much less is there any allegation that they had administered poison to the deceased Veena Devi. 20. In the result, these two appeals are allowed. The appellants are discharged from the liabilities of the bail bonds furnished earlier in this case. Appeal allowed.