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2013 DIGILAW 757 (PAT)

Jibodhan Gosai v. State of Bihar

2013-07-04

AKHILESH CHANDRA

body2013
ORAL JUDGMENT Heard learned counsels appearing on behalf of the parties. 2. This appeal has been preferred by the three appellants against the conviction of appellant no. 1, namely, Jibodhan Gosai for the offence under Sections 201 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act and against conviction of remaining two i.e. appellant nos. 2 & 3, namely, Bambhola Gosai and Umapati Devi for the offence under Sections 304 B, 201 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act and sentence to all for the offence under Section 201 of the Indian Penal Code for three years and Section 3/4 of the Dowry Prohibition Act for six months and appellant nos. 2 & 3 for seven years as awarded in Sessions Trial No. 399 of 1992 arising out of Udwantnagar P.S. Case No. 74 of 1991 by 2nd Additional Sessions Judge, Bhojpur at Arrah on 30th June, 1994. However, the sentences are to run concurrently. 3. Undisputedly on the statement of PW-5, Jiut Gosai (declared hostile), the case was instituted. According to him on 30.05.1991 at 9.30 a.m. while he was going for Bidai of his niece Rita Devi (deceased) but arrived near the village Masarh heard about the death by poisoning of daughter-in-law of appellant no. 1, Jibodhan Gosai and in order to just get his doubt clear he rushed there and got information that she (Rita Devi, deceased) was poisoned by appellant no. 2, Bambhola Gosai (husband) and appellant no. 3, Umapati Devi (mother-in-law) throttled her at about 6.00 a.m. and the dead-body was also disposed of only because of none fulfillment of some sort of demands for dowry like T.V. and cycle etc. well within three years of the marriage. 4. The police instituted the case and after investigation submitted charge-sheet. During trial the appellants besides one Chahetan Gosai were charged for the offence under Section 201 of the Indian Penal Code and appellant nos. 2 & 3 were for the offence under Section 304 B of the Indian Penal Code and all the three appellants for the offence under Section 3/4 of the Dowry Prohibition Act. 5. During trial altogether eight witnesses have been examined besides producing Exhibit-1, signature of witness on the seizure list. In defence on behalf of the appellants two witnesses have been examined, but no documentary evidence is produced. 6. 5. During trial altogether eight witnesses have been examined besides producing Exhibit-1, signature of witness on the seizure list. In defence on behalf of the appellants two witnesses have been examined, but no documentary evidence is produced. 6. The court below on consideration of the materials convicted and sentenced the appellants in the manner aforementioned. 7. PW-1, Birendra Singh is an eye-witness heard about throttling went at the spot and during cross-examination he said about only learning from some unknown villagers. There is nothing more in his evidence. 8. PW-2, Dineshwar Singh, since coming with the assertions that heard about death of the deceased due to stomach pain, declared hostile. There is nothing in his evidence. And, likewise, PW-3, Devendra Singh also declared hostile, but since in cross-examination by prosecution, he admits seizures of some bones and his signature on the seizure list, which was marked as Exhibit-1. Of course, during cross-examination by defence he denied any such seizure in his presence. 9. PW-5, Jiut Gosai (informant) supported the prosecution version in part only to the extent that he was going to bring back his niece (deceased) and heard about her death, but due to stomach pain and he was also declared hostile. His attention towards the prosecution version in his written statement has been drawn, but he denied about the contents and even putting his Left Thumb Impression (L.T.I.) giving room to learned counsel representing the appellants to submit that there is no case or F.I.R. instituted against the appellants, but formal F.I.R. on record being a public document under law makes such submission unacceptable. 10. PW-7, Raghubansh Mishra is also declared hostile since he speaks about hearing due to stomach pain and loose motion etc. and PW-8, Bhola Naik is the Investigating Officer, who started the investigation from the middle and right from paragraph-79 onwards which was in writing. Practically, there is nothing in his evidence except that during his part of investigation he also examined PW-4 and PW-6, the parents of the deceased. PW-4 states about the fact that on 11.05.1991 his brother (PW-5) while going to bring the deceased back he learnt about her killing by the appellants, especially, appellant no. 2 poisoned her and appellant no. 3 throttled. Then his brother informed the police and he also states about demand of T.V. and cycle etc. PW-4 states about the fact that on 11.05.1991 his brother (PW-5) while going to bring the deceased back he learnt about her killing by the appellants, especially, appellant no. 2 poisoned her and appellant no. 3 throttled. Then his brother informed the police and he also states about demand of T.V. and cycle etc. In cross-examination though he has not been able to state about the dates of demand for articles, but he is consistent about such demands made at regular intervals and in his statement too there is also nothing as regard to date of marriage and other details indicating the death taking place within the period attracting the offence under Section 304 B of the Indian Penal Code. 11. Similarly, PW-6, Sitamani Devi in her examination-in-chief is silent about the date of marriage, but has specifically stated about the date of occurrence and demand for dowry and torture etc. Further, threats given during trial to the witnesses, but it is the defence, who in cross-examination in paragraph-2 has filled up the lacunas of the prosecution and at the initial stage of cross-examination itself it has been taken that marriage was performed just three years before and one and half years thereafter the second marriage (Gauna) and just fifteen days thereafter her husband had gone to bring her back and there was a quarrel as regard to the demands etc. and ornaments were also snatched. In cross-examination in paragraph-3 she speaks about the repeated demands even at the time of the second marriage (Gauna). She has also stated about poisoning of the deceased by appellant no. 2 and throttling by appellant no. 3. 12. The prosecution in spite of loop wholes has been able to establish unnatural death of the victim within three years of her marriage at the hands of her husband and in-laws for some sort of demands and torture soon before the death, attracts the presumption of dowry death. 13. In the contrary, defence has come out with a case that the deceased died of stomach pain and loose motion etc., but completely failed in establishing its case. DW-1, Sheoshankar Singh though has stated that he learnt about the illness of the deceased and tried to assist appellant no. 13. In the contrary, defence has come out with a case that the deceased died of stomach pain and loose motion etc., but completely failed in establishing its case. DW-1, Sheoshankar Singh though has stated that he learnt about the illness of the deceased and tried to assist appellant no. 1 for her medical assistance, but failed and she died about 2.00 a.m. and the body was disposed of between 5.00 to 6.00 a.m. This further indicates that at no point of time the defence made any attempt to inform the prosecution side about the mishappenings with the deceased. 14. DW-2, Ramdeo Ram coming to denying the demands etc. and death of the deceased and her cremation in presence of her parents, but could not be able to establish rather his assertion about information to parents of the deceased etc. appears impossible in face of statement of DW-1. 15. The materials available on the record and the facts discussed above are sufficient to establish that the deceased died of natural death and just to conceal the guilt her husband and in-laws got the body disposed of. The charges leveled against them are now well established and there appears no reason to interfere in the finding of conviction of the appellants and only because appellant nos. 1 & 3 are aged persons to interfere in sentence. Hence, finding no merit, the appeal is hereby dismissed. The bail-bonds furnished on behalf of the appellants are hereby cancelled and they are directed to surrender and serve remaining period of their sentences.