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2013 DIGILAW 585 (PAT)

Pappu Rabi Das v. State of Bihar

2013-05-03

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State. 2. This criminal appeal has been preferred against the judgment of conviction dated 24.4.2001 and order of sentence dated 25.4.2001 passed by learned Addl. Sessions Judge I, Katihar in Sessions trial no. 323 of 1998 by which and whereunder he convicted the appellants for the offences punishable under sections 306 and 201 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years each and also slapped a fine of Rs.1000/- each under section 306 of the Indian Penal Code and furthermore, the learned trial court ordered that in default of payment of the above stated fine, the appellants would have to undergo further rigorous imprisonment for two months each. The learned trial court further sentenced the appellants to undergo rigorous imprisonment for two years each and a fine of Rs 1000/- each also slapped under section 201 of the Indian Penal Code and furthermore, the learned trial court ordered that in default of payment of the aforesaid fine, the appellants would have to undergo further rigorous imprisonment for one month each. However, the learned trial court directed that all the sentences would run concurrently. 3. P.W. 4, Ramsi Rabidas gave his fardbeyan to ASI of Korha police station district Katihar on 17.2.1998 at 2 p.m. to this effect that marriage of his daughter Kamli Devi had taken place with appellant no.1 in the year 1996. On 16.2.1998, when he came to the house of the appellants with an intent to take back his daughter on the eve of Shivratri festival, he found that no person was present in the house of the appellants. He further stated that one neighbour of the appellants, namely, Shivdhari Ravidas disclosed that on 13.2.1998 his daughter, Kamli Devi committed suicide by consuming thymate and after her death, her in-laws disposed of her dead body. Having learnt the aforesaid fact, P.W.4 sat on the door of the appellants and started waiting for their arrival. He further stated that at about 6 p.m. in-laws of his daughter came to their home and when they saw him, appellant no.2, namely, Gopal Rabidas caught his legs and disclosed that his daughter Kamli Devi died after consuming thymate and her dead body had already been buried and furthermore, appellant no. He further stated that at about 6 p.m. in-laws of his daughter came to their home and when they saw him, appellant no.2, namely, Gopal Rabidas caught his legs and disclosed that his daughter Kamli Devi died after consuming thymate and her dead body had already been buried and furthermore, appellant no. 2 started requesting not to lodge any case in respect of the above stated occurrence. P.W.4, further, stated in his fardbeyan that at the time of marriage, his son-in-law, Pappu Rabidas had demanded one watch and bicycle in dowry but due to his poverty, he could not fulfil the aforesaid demand of his son-in-law and on account of non-fulfillment of the above stated demand, his son-in-law as well as mother-in-law of the deceased used to torture the deceased. He further stated that the aforesaid fact had been disclosed by the victim several times before him prior to alleged occurrence. He further stated that when he enquired from co-villagers of the appellants, he learnt that appellant nos.2 and 3 and other vil1agers participated in disposing of dead body of his daughter. 4. On the basis of the aforesaid fardbeyan of P.W.4, Korha P.S. case no.27/1998 for the offences punishable under sections 304B, 201/34 of the Indian Penal Code was registered and accordingly, formal FIR was drawn up against the appellants and two others for the above stated offences. The matter was investigated and after investigation, police submitted charge sheet against the appellants for the offences under sections 306 and 201 of the Indian Penal Code whereas investigation in respect of two others was kept pending. On receipt of charge sheet, cognizance of the offences was taken and the case of the appellants was committed to the court of sessions, in usual way. 5. All the above stated appellants stood trial and accordingly, they were charged for the offences punishable under sections 306 and 201 of the Indian Penal Code and the appellants denied the charge. 6. In course of trial, altogether, nine prosecution witnesses were examined and prosecution also got exhibited some documentary evidence including post mortem report of the deceased which is exhibit 2. The statements of the appellants were recorded under section 313 of the Cr.P.C in which it was asked from the appellants that they committed murder of the deceased Kamli Devi by forcibly administering thymate for the lust of dowry. The statements of the appellants were recorded under section 313 of the Cr.P.C in which it was asked from the appellants that they committed murder of the deceased Kamli Devi by forcibly administering thymate for the lust of dowry. The appellants answered the aforesaid question in negative. 7. No evidence was adduced by the appellants in support of their defence but from perusal of statements recorded under section 313 of the Cr.P.C as well as trends of cross-examination of prosecution witnesses, it appears that defence of the appellants was total denial of the prosecution story. 8. The learned trial court, having considered the materials available on record, convicted and sentenced the appellants in the manner as stated above coming to conclusion that death of the deceased was within two years of her marriage in mysterious circumstances and without giving any information regarding death of the deceased, appellants disposed of dead body of the deceased which was recovered in course of investigation. 9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and order of sentence arguing that learned court below convicted the appellants on the basis of conjectures and surmises and the finding of the learned trial court is erroneous which can not sustain in the eye of law. Continuing his submission, learned counsel for the appellants submitted that dead body of the deceased was recovered in course of investigation and post mortem of the deceased was done but doctor could not succeed to give his opinion regarding cause of death of the deceased. He further submitted that although viscera was kept preserved but viscera was not sent for chemical examination nor any viscera report was produced before the learned trial court. Therefore, the prosecution could not succeed to prove cause of death of the deceased. He further submitted that except P.W.4, not a single prosecution witness, has come forward to support the prosecution story and, therefore, the prosecution, miserably, failed to prove the charge levelled against the appellants beyond all shadow of reasonable doubts. 10. On the other hand, learned Addl. Therefore, the prosecution could not succeed to prove cause of death of the deceased. He further submitted that except P.W.4, not a single prosecution witness, has come forward to support the prosecution story and, therefore, the prosecution, miserably, failed to prove the charge levelled against the appellants beyond all shadow of reasonable doubts. 10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence submitting that according to exhibit 1 as well as deposition of P.W.4, the deceased died on 13.2.1998 and fardbeyan of P.W.4 was recorded on 17.2.1998 but no information regarding death of the deceased was given to P.W.4 by the appellants. He further submitted that dead body of the deceased was recovered on 19.2.1998 near Dhobia dhar and apart from this, when P.W.9, Investigating officer of this case, visited the house of the appellants in course of investigation, he found smell of thymate coming out from the house of the appellants and therefore, the aforesaid circumstances clearly indicate that death of the deceased was under mysterious circumstances and, therefore, the learned trial court rightly convicted and sentenced the appellants. 11. Marriage of the deceased with appellant no.1 is not in dispute and it is also not in dispute that the aforesaid marriage was solemnized in the year 1996 and furthermore, it is also an admitted position that the deceased died on 13.2.1998 and her dead body was recovered near Dhobia dhar on 19.2.1998 and furthermore, post mortem of the body of the deceased was done on 20.2.1998. 12. P.W.8, Dr. D. N. Poddar had conducted post mortem on the dead body of the deceased. This witness stated that on 20.2.1998 he did post mortem on the dead body of the deceased Kamli Devi at 11p.m. and found following injuries: External body was in the process of decomposition. Face swollen. Abdomen distended. Muscles of upper and lower limb decomposing. On opening cranial cavity drain liquefying, On opening of chronic cavity lungs are in the process of decomposition. Heart empty. On opening abdominal cavity liver-greenish colour was found. Other viscera decomposing. Stomach distended. Uterus normal in size. Almost all the organs were at the stage of decomposition. This witness did not find any rigor mortis present on the dead body. On opening cranial cavity drain liquefying, On opening of chronic cavity lungs are in the process of decomposition. Heart empty. On opening abdominal cavity liver-greenish colour was found. Other viscera decomposing. Stomach distended. Uterus normal in size. Almost all the organs were at the stage of decomposition. This witness did not find any rigor mortis present on the dead body. However, this witness kept preserved viscera for chemical examination and according to this witness death had taken place seven days ago. This witness could not give any opinion in respect of cause of death of the deceased. 13. P.W.9 is the Investigating officer of this case. He stated that he recorded the statement of P.W.4 and started his investigation. He further stated that he inspected the place of occurrence and recorded further statement of P.W.4. He further stated that he recovered dead body of the deceased on the next day from Dhobia dhar and after recovery of dead body, he prepared inquest report. He further stated that after completion of investigation, he submitted charge sheet against the appellants. In cross-examination, he admitted that he took the charge of investigation himself without any specific order of officer-in-charge of his police station. Moreover, in his cross-examination, he stated that dead body was identified by P.W.4. This witness stated that he had sent viscera of dead body of the deceased for chemical examination. 14. P.W.4, informant of this case, stated that the demand of watch and bicycle was made by appellant no.1 as well as his mother. He also stated that one Shivdhari informed him that his daughter was killed by administering poison to her. He further stated that on the next day of the institution of the case, dead body was recovered from Dhobia dhar. He further admitted at para 5 of his cross-examination that he had met the deceased five to six months back prior to her death. 15. P.W.1 and P.W.2 have been declared hostile. P.W.3, P.W.5 and P.W.7 have been tendered and similarly, P.W.6 has stated nothing in respect of the alleged occurrence. Therefore, it is apparent that only P.W.4 has supported the prosecution case. 16. 15. P.W.1 and P.W.2 have been declared hostile. P.W.3, P.W.5 and P.W.7 have been tendered and similarly, P.W.6 has stated nothing in respect of the alleged occurrence. Therefore, it is apparent that only P.W.4 has supported the prosecution case. 16. On perusal of the evidences, it is explicit clear that except the informant, none has stated about alleged illegal demand and admittedly, P.W.4 came to know about the aforesaid alleged demand from the deceased and the said fact has been admitted by P.W.4 at para 2 of his examination-in-chief. Furthermore, P.W.4 has stated that the deceased was subjected to harassment by her in-laws but admittedly, he met the deceased five to six months back prior to her death and, therefore, this witness is not competent to say this fact that as to whether the deceased was subjected to cruelty or harassment just before her death or not. 17. P.W.8 has admitted that he could not ascertain the cause of death and admittedly, no viscera report was produced by the prosecution before the trial court and, therefore, it is explicit clear that the prosecution failed to prove cause of death of the deceased and therefore, it can not be said that the deceased died on account of consuming thymate or any other kind of poison. 18. Section 306 of the IPC says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 19. From perusal of the aforesaid section, it is explicit clear that in order to convict any person for abetting a person to commit suicide, it has to be proved that the said person committed suicide due to abetment but in the present case, there is nothing in the deposition of P.W.4 that appellants abetted the deceased to commit suicide and, moreover, prosecution could not succeed to prove the cause of death of the deceased and therefore, it can not be said that the deceased committed suicide and, in my view, the appellants could not have been convicted for the offence punishable under section 306 of the IPC. 20. 20. The learned trial court came to the conclusion that the doctor had not given any opinion regarding death of the deceased but the death of the deceased was in mysterious circumstances and no information regarding the death of deceased was given to P.W.4 and, therefore, the prosecution succeeded to prove the charges under sections 306 and 201 of the IPC against the appellants. In my view, the aforesaid finding of court below is erroneous because admittedly, the aforesaid circumstances were not placed before the appellants when their statements under section 313 of the Cr.P.C were recorded and therefore, in my view, failure to put the aforesaid circumstances before the appellants in course of recording their statements under section 313 of the Cr.P.C has caused serious prejudice to the appellants and the aforesaid circumstances could not have used against the appellants. 21. On the basis of the aforesaid discussions, I am of the opinion that the impugned judgment of conviction and order of sentence can not sustain in the eye of law and accordingly, the impugned judgment of conviction and order of sentence are, hereby, set aside. All the appellants are on bail. They are discharged from the liabilities of their bail bonds.