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2013 DIGILAW 66 (PAT)

Md. Daud v. State of Bihar

2013-01-14

HEMANT KUMAR SRIVASTAVA

body2013
HEMANT KUMAR SRIVASTAVA, J.:–Heard learned counsel for the appellant as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 29.6.2001 and sentence order dated 30.6.2001 passed by Sri Aditya Kumar Trivedi, learned Addl. Sessions Judge VI, Begusarai in Sessions trial no. 309/2000 by which and whereunder he convicted the appellant under section 498A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years for the above stated offence and he also directed that period of detention as under trial prisoner would be set of as section 428 of the IPC. Furthermore, learned Addl. Sessions Judge VI, Begusarai acquitted the appellant and co–accused Md Ataul for the offence punishable under section 304 B of the IPC. 3. The prosecution case, in brief, is that P.W. 8, Md Zakir Hussain, gave his fardbeyan on 22.5.1999 at about 5.00 p.m. to the ASI of Mufassil police station to this effect that his daughter Rajiya Manowar Begum was married with the appellant Md Daud in the year 1993 and after marriage, she went to her in-laws’ house and after four months of her marriage, Md Daud demanded Rs 30,000/- but he could not meet the aforesaid demand on account of his poverty. The appellant Md Daud started torturing and assaulting his daughter which forced his daughter at so many occasions to come to her natal place and a Panchyati was held so many times between the parties and in that Panchyati, it was decided that neither the aforesaid Rs 30,000/- was to be given nor the appellant and other accused would torture the girl but appellant and his other family members did not change their behaviour. P.W 8 further stated in his fardbeyan that on 22.5.1999 at about 3 p.m. his son Md Kadir informed him that his daughter Rajiya Manowar Begum committed suicide by consuming poison and having got the aforesaid information, he came at the house of the appellant and found that his daughter was lying dead and her in-laws were not present there. He claimed that on account of non-fulfillment of the aforesaid demand, his daughter was killed by the appellant and her other in-laws. 4. He claimed that on account of non-fulfillment of the aforesaid demand, his daughter was killed by the appellant and her other in-laws. 4. On the basis of fardbeyan, Begusarai( Mufassil) P.S. case no.131/1999 for the offences under sections 498A and 304B of the Indian Penal Code was registered against the appellant and three others and accordingly, formal first information report was drawn and the matter was investigated by the Investigating officer. After completion of investigation, charge sheet was submitted against the appellant and others for the offences under sections 304B and 328 of the Indian Penal Code. 5. The cognizance of the offences was taken and accordingly, case of the appellant and co–accused Md Ataul was committed to the court of sessions, in usual way. 6. The appellant along with co–accused Md Ataul was put on trial and accordingly, charges for the offences under sections 304B and 498A of the Indian Penal Code were framed against the appellant and above stated co–accused. 7. In support of prosecution case, altogether 10 witnesses were examined and the prosecution also proved some documentary evidence such as signature of Md Kalimuddin on carbon copy of inquest report as exhibit 1, signature of Md Khurshid on carbon copy of inquest report as exhibit 1/1, signature of P.W. 8 on fardbeyan as exhibit 2, signature of Md Kalimuddin on fardbeyan as exhibit 2/1, signature of Md Khurshid on fardbeyan as exhibit 2/2, fardbeyan of P.W 8 as exhibit 3, endorsement on fardbeyan as exhibit 3/1, signatures of Officer in-charge of Mufassil police station on formal FIR as exhibit 4 and carbon copy of inquest report as exhibit 5 respectively, requisition of I.O. as exhibit 6 and post mortem report as exhibit 7. The statements of the appellant and co–accused were recorded under section 313 of the Cr.P.C in which they denied the prosecution story. In addition to the above stated facts, defence also examined two defence witnesses. 8. The learned trial court, having considered the materials available on record, passed the impugned judgment of conviction and sentence order in the manner as stated above. 9. In addition to the above stated facts, defence also examined two defence witnesses. 8. The learned trial court, having considered the materials available on record, passed the impugned judgment of conviction and sentence order in the manner as stated above. 9. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order submitting that there was no material on record to show this fact that the willful conduct of the appellant drove the deceased to commit suicide and, therefore, prosecution could not prove the charge framed under section 498A of the Indian Penal Code against the appellant but the learned trial court, without having any material on record, convicted the appellant for the offence under section 498A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. He further submitted that the learned trial court has based his findings on surmises and conjectures which are not acceptable in the eyes of law. 10. On the other hand, learned Addl. Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and sentence order submitting that there was sufficient material before the trial court to convict the appellant for the above stated offence and, therefore, there is no ground to interfere into the impugned judgment of conviction and sentence order. 11. As I have already stated that to prove its case, the prosecution has examined altogether ten witnesses. It is apparent that out of the aforesaid ten prosecution witnesses, P.W.1 , namely, Md Kalimuddin, P.W.2 , namely, Abdul Sattar, P.W.3 , namely, Md Nazir and P.W.4, namely, Md Khurshid were declared hostile at the prayer of the prosecution and the aforesaid witnesses did not make any statement in support of the prosecution case. P.W.5 , namely, Tameej and P.W.6 , namely, Md Naseer have only stated to this extent that there was a Panchyati between the parties and in the aforesaid Panchyati, some hot discussions had taken place between the parties. P.W.7, namely, Md Rahmat has stated nothing in support of the prosecutions case rather he stated that the appellant and his other family members had not made any demand. P.W.8, namely, Md Zakir Hussain is the informant of this case. P.W.7, namely, Md Rahmat has stated nothing in support of the prosecutions case rather he stated that the appellant and his other family members had not made any demand. P.W.8, namely, Md Zakir Hussain is the informant of this case. This witness stated in his examination-in-chief that marriage of his daughter Rajiya Manowar Begum had taken place with the appellant in the year 1993 and after marriage his daughter started residing with her husband and in-laws. This witness further stated that in-laws of her daughter had demanded Rs 30,000/- and the aforesaid fact was communicated to him by his daughter upon which he expressed his inability to meet the aforesaid demand on account of his poverty. This witness further stated that when he refused to fulfil the aforesaid demand, the appellant and his other family members started torturing and assaulting his daughter. He further stated that being fed up with the behaviour of the appellant and his other family members, his daughter, often, come to his house. He further stated that a Panchyati was held and in the aforesaid Panchyati, it was decided that the appellant and his other family members would keep the deceased properly and they will not get any money and after that his daughter started residing with her in-laws happily and peacefully. On 22.5.1999 at about 3 p.m, his son namely, Md Kadir, informed him that his daughter died after consuming poison and then he came at the house of appellant and found his daughter lying dead. This witness further stated that people, who had assembled there, were uttering that the deceased had consumed poison whereas some people were uttering that she died of heart attack. This witness further stated that his son-in-law, brother of son-in-law and mother of son-in-law were not present there and some people were weeping. This witness stated that he gave his fardbeyan to the police. He proved his fardbeyan. This witness further stated that his son-in-law, brother of son-in-law and mother of son-in-law were not present there and some people were weeping. This witness stated that he gave his fardbeyan to the police. He proved his fardbeyan. On being cross-examined by the defence, this witness stated that Rs 30,000/- was demanded by appellant as loan and when the aforesaid demand was not fulfilled, there was some strain relations between the appellant and his wife and on account of the aforesaid strain relation, a Panchyati was held and after Panchyati appellant and his family members changed their behaviour and the deceased was being kept by appellant and his family members properly and after that the appellant and his family members never made any demand nor they tortured the deceased. He further stated that at the time of giving fardbeyan, his mental condition was not proper and in the aforesaid mental condition, he put his signature on fardbeyan. 12. P.W. 9 is the Investigating officer who stated that he recorded the fardbeyan of P.W 8 and started investigation and after completion of investigation, he submitted charge sheet. 13. P.W. 10 is the doctor who conducted post mortem on the corpus of the deceased. This witness proved post mortem report and stated that cause of death could not be ascertained and he kept viscera of the dead body preserved for chemical examination. 14. On perusal of the impugned judgment, it would appear that the learned trial court has based his findings on depositions of P.Ws. 6, 7 and 8 and also taking into account of post mortem report. 15. As I have already stated that P.Ws. 5 and 6 are the witnesses on the point of Panchyati and they have only stated to this extent that Panchyati was held between the parties and hot exchange of words had taken place between the parties in the aforesaid Panchyati. P.W 5 has stated that the aforesaid Panchyati was held on account of dispute with neighbour of Md Daud whereas P.W 6 stated that the aforesaid Panchyati was held on the point of Bidai. In my view, even if the aforesaid contradiction is taken into account, then also, there is nothing in the depositions of P.Ws 5 and 6 that conduct of the appellant abated the deceased to commit suicide. In my view, even if the aforesaid contradiction is taken into account, then also, there is nothing in the depositions of P.Ws 5 and 6 that conduct of the appellant abated the deceased to commit suicide. Moreover, P.W. 8 being father of the deceased has specifically admitted in his cross-examination that after Panchyati his daughter was being properly kept by the appellant and his other family members and his daughter and appellant were leading happy and peaceful life. So far as deposition of P.W 7 is concerned, there is nothing in his deposition in support of the prosecution case. 16. The deposition of P.W 10 as well as exhibit 7 post mortem report of the deceased suggest that no internal or external injury was found on the person of the deceased and cause of death of the deceased could not be ascertained. 17. Admittedly, viscera report was not brought on record and, therefore, in my view, there is nothing on record to suggest this fact that the willful conduct of appellant drove the deceased to commit suicide and furthermore, I am of the opinion that learned counsel for the appellant has rightly submitted that prosecution could not succeed to prove the charge framed under section 498A of the IPC against the appellant. 18. On the basis of the aforesaid discussions, this criminal appeal is allowed. The impugned judgment of conviction dated 29.6.2001 as well as sentence order dated 30.6.2001 passed by learned Addl. Sessions Judge VI, Begusarai in Sessions trial no. 309/2000 is, hereby, set aside. Accordingly, appellant is acquitted of the charge. The appellant is on bail. He is discharged from the liability of bail bonds.