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2012 DIGILAW 735 (PAT)

Etwari Mabton v. State of Bihar

2012-05-07

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT S.K. Sharma. J. Etwari Mahton and Biresh Prasad @ Biresh Mahto are aggrieved by the judgment and order dated 18.12.1989 passed by the learned Sessions Judge. Nalanda in Sessions Trial No. 433 of 1988 arising out of Giriak P.S. Case No. 80 of 1987, whereby the appellant No.2 Biresh Prasad @ Biresh Mahto has been found guilty under Section 304-B and 201 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and two years respectively and appellant No. 1 Etwari Mahton has been found guilty under Section 201 of the Indian Penal Code and has been se 1tenced to undergo rigorous imprisonment, for two years. Appellant No. 1 Etwari Mahton is father of Appellant No. 2 Biresh Prasad @ Biresh Mahto. 2. The prosecution case is outcome of a complaint petition No. 349 C/1987 (Ext. 3) filed before the Chief Judicial Magistrate. Bihar Sharif, The complaint was referred to police under Section 156 of the Code of Criminal Procedure and formal First Information Report was registered. In course of investigation the complainant filed a protest petition (Ext.1). After completion of investigation, charge-sheet was submitted against these two appellants and other two accused Sudama Devi and Sanju Devi. The trial Court has not found other two accused persons guilty and both the ladies, namely Sudama Devi and Sanju Devi were acquitted. 3. The allegation relates to an occurrence of the night of 19.10.1987 at 8.00 p.m. According to the complainant Gandhi Mahton @ Chamru Mahton PW 6, his daughter Manju Devi was married to Biresh Prasad @ Biresh Mahto of Village Issua, police station Giriyak three years earlier. The Gauna was performed in the preceding Falgun month. On 02.10.1987 Biresh Prasad @ Biresh Mahto came to the informant and demanded Rs. 5000/- for getting an employment. The informant expressed his inability to pay (he amount in a short time. The accused Biresh Prasad @ Biresh Mahto became infuriated and threatened him for dire consequences. When the hot talk by appellant No. 2 was being given then witness Somari Mahto was present. Kari Devi, the daughter-in-law of the informant Gandhi Mahton @ Chamru Mahton, had gone to her parents' house at Issua. One day prior to the occurrence, she was at her parents' house. Kart Devi is Nanad of the deceased. One day prior to the occurrence. Kari Devi, the daughter-in-law of the informant Gandhi Mahton @ Chamru Mahton, had gone to her parents' house at Issua. One day prior to the occurrence, she was at her parents' house. Kart Devi is Nanad of the deceased. One day prior to the occurrence. Kart Devi had been to meet Manju Devi (the deceased) and when she had gone there then she had seen that Manju Devi was being assaulted by all the accused persons. Namely, these two appellants and wife of Etwari Mahton and elder daughter of Etwari Mahton. At that time she was being pressed by Biresh Prasad @ Biresh Mahto. Kart Devi cried, upon which she was caught, by the accused Etwari, Mahton, his wife and his elder daughter. She was bolted inside the house. In the next morning, Kali Devi went to her father-in-law's house and told that Manju Devi (the deceased) was killed and her dead body had been made to disappear. The complainant was going to police station to inform this but in the way he met with Somari Mabton and Baleshwar Mahto and these two persons also told that they have seen Etwari Mahton and, Biresh Prasad @ Biresh Mahto carrying the corpse along with two others and on query Etwari Mahton divulged that his daughter-in-law had died and they were carrying the dead body for cremation. The police did not register the case so the complaint case has been filed. The complaint on being referred, the First Information Report was registered and charge-sheet was submitted. The cognizance was taken and the case was committed to the Court of Sessions where the four accused persons were charged under Sections 304-B and 201/34 of the Indian Penal Code. The accused persons pleaded their innocence so the trial proceeded. 4. The defence of the accused was of false implication and also that Manju Devi (the deceased) was not killed rather her death was natural and no demand of dowry was ever made. 5. The trial Court after considering the evidence brought on record came to the opinion that the prosecution has been able to prove the charges against these two appellants but the trial Court exonerated two other accused persons who were also put on trial. 6. 5. The trial Court after considering the evidence brought on record came to the opinion that the prosecution has been able to prove the charges against these two appellants but the trial Court exonerated two other accused persons who were also put on trial. 6. This Court has to see as to whether the prosecution has been able to prove the charges against the appellants beyond shadow of all reasonable doubts or not. 7. In order to prove its case the prosecution has examined eight witnesses they are Basudeo Mahton PW 1. Mani Lal Prasad PW 2. Somari Mahton PW 3. Baleshwar Prasad PW 4. Kari @ Kuri PW 5. Gandhi Mahton @ Chamru Mahton PW 6. Awadhesh Singh PW 7 and Ram Das Yadav PW 8. PW 2 has been declared hostile by the prosecution as he has not supported the allegation. PW7 is a formal witness who has proved the typing of protest petition. 8. The complaint petition is outcome of information divulged to the complainant by PW 5. Therefore, the evidence of PW 5 is being discussed firstly. PW 5 in her evidence has stated that at about 3.00 a.m. in the night she was at her parents' village. She had gone to the house of Etwari Mahton which was situated in her parents' village. Manju Devi was her sister-in-law. When she went inside the house of Etwari Mahton, she noticed that Biresh Prasad @ Biresh Mahto. Etwart Mahton. Sudama and Sanju were assaulting Manju Devi. When she cried she was tied by Biresh Prasad @ Biresh Mahto. Sometimes, thereafter her father Baso Mahto came and he persuaded Etwart Mahton to open the house. PW 5 divulged to her father-in-law that four persons killed Manju Devi and her dead body had been made to disappear. Etwari Mahton caught the father of PW 5 and bolted her and her father inside the room. In the next morning somebody opened the door and she came. Two days prior to the occurrence. she visited the house of Etwari Mahton and on that occasion Manju Devi told that her father should be requested to arrange Rs. 5000/- for having a job for Biresh Prasad @ Biresh Mahto. 9. The entire occurrence is outcome of initial statement of Kari Devi to PW 6. Statement of Karl Devi in complaint petition is at variance with her evidence in Court. 5000/- for having a job for Biresh Prasad @ Biresh Mahto. 9. The entire occurrence is outcome of initial statement of Kari Devi to PW 6. Statement of Karl Devi in complaint petition is at variance with her evidence in Court. In her statement before the police she has given different version and has told that when she, has gone to the house of Manju Devi then she saw Manju Devi dead. She has made further enhancement in her evidence but PW 8 in para-10 of his evidence has stated that PW 5 has given altogether different statement to him and she has declined to say that she has seen the four persons assaulting Manju Devi rather' she has stated that she has seen Manju Devi in dead condition. The evidence of PW 5 differs from the case of prosecution in its entirety because her evidence in the complaint petition "and before the trial Court is quite different. 10. PW 6 has received the information through his daughter-in- law Kari Devi, who has detailed about the occurrence he has not witnessed any part of the occurrence rather his work was only of informing the police. 11. PW 1 has gone to the house of the accused persons and saw that her daughter's sister-in-law has died. The evidence of PW 5 that dead body was disposed of gets contradicted from the evidence of PW 1 as he has stated that he saw the dead body. PW 4 is not a witness of the occurrence and he knew about the occurrence through others. Similarly, PW 3 is also not a witness of any part of the occurrence. 12. The entire evidence of the prosecution has completely based upon the information given by the PW 5 Kari Devi. PW 5 Karl Devi is emphatic upon the initial version which she has given in the complaint petition and has stated in different manner. Her evidence is self contradictory and contrary to the facts on material points as stated in the complaint petition as well as in the statements of PW 1 and PW 6. In complaint petition she has not stated that PW 1 Basudeo Mahto had gone to call PW 5 in the alleged night, but in Court PW 5 has claimed as such. 13. In complaint petition she has not stated that PW 1 Basudeo Mahto had gone to call PW 5 in the alleged night, but in Court PW 5 has claimed as such. 13. If the prosecution evidence brought on record is sum up then it is apparent that the sole witness of the case PW 5 Kari Devi has divulged different thing before different persons and the prosecution has relied upon the testimony of that very person. Even PW 5 on different occasions has given different versions. 14. The conviction of the accused/appellant is under Section 304 B of the Indian Penal Code. One of the condition precedent for conviction under Section 304-B of the Indian Penal Code is that the evidence must be brought on record that soon before her death, the victim was being tortured or being harassed in connection with dowry related demands. Even if the entire evidence brought on record is accepted for the sake of prosecution with regard to demand of dowry then also it cannot be said that demand of any dowry was made rather the demand was of arranging some rupees for procuring a job. No witness has stated that this was a dowry related demand. If that evidence is not brought on record then it cannot be said that the prosecution has come clean and has proved the charges. Learned Counsel for the appellants has placed reliance upon the judgment of the Hon ble Supreme Court in case of K. Prema S. Rao and another v. Yadla Srinivasa Rao and others, reported in AIR 2003 SC page 11 wherein it has held that to attract the provisions of Section 304-8 of the Indian Penal Code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry". In this case soon before the death it has not come that the victim was subjected to any cruelty and harassing then it can be said that the prosecution has failed in discharging of its onus of proving the charge. 15. On account of this, it cannot be said that the evidence for securing conviction under Section 304-8 of the Indian Penal Code has been brought on record. 15. On account of this, it cannot be said that the evidence for securing conviction under Section 304-8 of the Indian Penal Code has been brought on record. There is no evidence on the record for holding that soon before the death the victim was subjected to torture in connection with demand of additional dowry. 16. In view of the aforesaid discussions. it is apparent that the prosecution has failed to prove the charge against the appellants beyond shadow of all reasonable doubts. 17. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. Appeal allowed.