Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 880 (PAT)

Lakhan Chaudhary v. State of Bihar

2013-07-25

RAJENDRA KUMAR MISHRA, SHYAM KISHORE SHARMA

body2013
JUDGMENT : (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) As both these appeals arise out of the same Judgment of conviction and Order of sentence dated 7th of May, 1990 passed in Sessions Trial No.66 of 1989 by the learned Sessions Judge, they have been taken up together and are being disposed of by this common Judgment. 2. By the said Judgment and order, the appellants of the aforesaid appeals have been found guilty for the offences under Sections 304-B read with 34 and 201 read with 34 of the Indian Penal Code. For the offences under Sections 304-B read with Section 34 of the Indian Penal Code, the appellants, Lakhan Choudhary, Bhola Chaudhary, Girani Chaudhary and Arjun Choudhary, were sentenced to undergo rigorous imprisonment for life whereas the appellants, Dasia Devi and Amriki Devi, were sentenced to undergo rigorous imprisonment for seven years. For the offences under Sections 201 read with Section 34 of the Indian Penal Code, all the appellants were sentenced to undergo rigorous imprisonment for three years. However, all the sentences were ordered to run concurrently. 3. In this case, the deceased is Sumitra Devi, the wife of the appellant, Arjun Choudhary. On 3.7.1988 at about 7 A.M., Awadhesh Singh (P.W.3), the Officer Incharge of Akbarpur Police Station heard rumour about the murder of the wife of Arjun Choudhary and also of concealing and burying her dead body by Arjun Singh and his other family members about 3-4 days earlier somewhere else. He entered the said information in the station diary and, thereafter, he constituting the team consisting of Sub Inspector, Jagarnath Roy (P.W.9), Constable No.97, Awadhesh Singh (P.W.4), Constable No.593, Jugeshwar Rai (P.W.5), Chowkidar 3/2, Dahan Gope (not examined), Chowkidar 3/1, Jagdish Gope (not examined) proceeded to Akbarpur for verification of the facts. As soon as the team arrived near the house of appellant, Arjun Choudhary, the accused persons started fleeing away, however, the appellant, Girani Chaudhary, was apprehended there. On query being made, the nearby people of the house of Arjun Choudhary, disclosed that on account of spots caused by chicken pox on the face of the wife of Arjun Choudhary, Arjun Choudhary and his family members did not like her and they always used to torture her. On query being made, the nearby people of the house of Arjun Choudhary, disclosed that on account of spots caused by chicken pox on the face of the wife of Arjun Choudhary, Arjun Choudhary and his family members did not like her and they always used to torture her. Due to that reason, Arjun Choudhary and his family members have committed the murder of the wife of Arjun Choudhry 3-4 days earlier and concealed her dead body somewhere else. The efforts to locate the deceased, Sumitra Devi, remained in vain. On query being made from the appellant, Girani Chaudhary, Girani Chaudhary told them that 3-4 days earlier, Sumitra Devi, the wife of Arjun Choudhay, had committed suicide by hanging herself and her dead body has been buried at the river of Jog by him, his brothers, Bhola Chaudhary, Arjun Choudhary and father, Lakhan Choudhary. They alongwith the appellant, Girani Chaudhary, went to the place where the dead body of Sumitra Devi was buried and found the beheaded body of a lady. The appellant, Girani Chaudhary, confessed his guilt and told that his mother and the wife of the appellant, Bhola Chaudhary, helped them in committing the murder of Sumitra Devi, the wife of the appellant, Arjun Choudhary. The confessional statement of the appellant, Girani Chaudhary, has been marked as Ext.4. On investigation, it transpired that in committing the murder and concealing the dead body of the wife of Arjun Choudhry, there are hands of the aforesaid appellants and, accordingly, the informant launched the prosecution against them under Sections 302/201/34 of the Indian Penal Code and arrested the appellant, Girani Chaudhary. 4. On the basis of the written report (Ext.1) of Awadhesh Singh (P.W.3), the Officer Incharge of Akbarpur Police Station, formal F.I.R. (Ext.2), leading to Akbarpur P.S. Case No.48 of 1988 dated 3.7.1998 for the offence under Sections 302 and 201/34 of the Indian Penal Code was instituted and police started investigation of the case. 5. 4. On the basis of the written report (Ext.1) of Awadhesh Singh (P.W.3), the Officer Incharge of Akbarpur Police Station, formal F.I.R. (Ext.2), leading to Akbarpur P.S. Case No.48 of 1988 dated 3.7.1998 for the offence under Sections 302 and 201/34 of the Indian Penal Code was instituted and police started investigation of the case. 5. After investigation, police finding the case true submitted the chargesheet and, accordingly, the case was committed to the court of sessions where charges under Sections 304-B read with Section 34 of the Indian Penal Code were explained to Arjun Choudhary, Gerani Choudhary, Lakhan Choudhary, Bhola Choudhary, Ganauri Choudhary, Shankar Choudhary, Dasia Devi, Amriki Devi alias Rukia whereas under Section 201 read with Section 34 of the Indian Penal Code to Ganauri Choudhary, Bhola Choudhary, Shankar Choudhary, Lakhan Choudhary, Dasia Devi, Amriki Devi alias Rukia, Manju Kumari, Pushpa Kumari, Arjun Choudhary and Girani Choudhary to which they pleaded not guilty and claimed to be tried. Subsequently, the case of Manju Kumari and Pushpa Kumari were separated from the case of the other accused on 20.2.21990. 6. In course of trial, in order to prove its case, the prosecution examined altogether 9 witnesses. They are Rajendra Chaudhary (P.W.1), Dipu Chaudhary (P.W.2), Awadhesh Singh, son of Late Shibjee Singh (P.W.3), Awadhesh Singh, son of Mukhan Singh (P.W.4), Jugeshwar Rai (P.W.5), Chinta Devi (P.W.6), Parmeshwari Devi (P.W.7), Deonandan Prasad (P.W.8) and Jagarnath Roy (P.W.9). Out of them, P.Ws.5 and 6 were tendered by the prosecution, P.W.9 is the Investigating Officer of the case, P.W.8 is a doctor, who conducted the post-mortem examination of the deceased, P.W.7 is the mother of the deceased and P.Ws.1 and 2 are the brothers of the deceased. 7. In course of investigation, the inquest report (Ext.5) of the dead of the deceased was prepared and on the recovery of Fasuli and dagger, its seizure lists (Exts.6 and 6/1) were prepared. 8. On the other hand, the defence has also examined two witnesses, they are Tuna Chaudhary (D.W.1) and Kulo Chaudhary (D.W.2). 9. The trial court after considering the evidence on the record found the accused-appellants guilty under Sections 304-B read with Section 34 and 201 read with Section 34 of the Indian Penal Code and sentenced them as indicated above. 10. On the other hand, the defence has also examined two witnesses, they are Tuna Chaudhary (D.W.1) and Kulo Chaudhary (D.W.2). 9. The trial court after considering the evidence on the record found the accused-appellants guilty under Sections 304-B read with Section 34 and 201 read with Section 34 of the Indian Penal Code and sentenced them as indicated above. 10. Now, we have to see that as to whether the prosecution has been able to prove its case beyond reasonable doubts or not. Before proceeding further, for better appreciation, the evidence of the witnesses are re-produced as under: 11. P.W.8, Dr. Deonandan Prasad, who conducted post-mortem of the dead body of the deceased, Sumitra Devi, has stated in his evidence that on 4.7.1988 while he was posted as Civil Assistant Surgeon at Sadar Hospital, Nawadah, he conducted the post-mortem examination on the dead body of the wife of Arjun Choudhary of Akbarpur Hat Police Station, Nawadah, and found the dead body into two pieces-one in head and second the rest of the body. He also found the head and trunk mixed with soil and sand. The body was at the stage of decomposition. Rigor mortis was absent from all the limbs. The body was swollen and skin was whitish in colour. He has further stated that he found the wound on the neck from where the head was separated. He found the soft tissues missing from middle right arm and only bones were there up to the wrist. He also found the bones below the wrist missing. He compared the head with trunk and found the wound resembled and appeared of the same dead body. Face was swollen and eyes were protruding, tongue was swollen and protruded and the skin of head and trunk resembled similar. Except that, there was no external injury. The cause of death could not be ascertained because the wound has become so altered in appearance that it was difficult to form an opinion as to whether it was caused before or after death, meaning thereby the doctor found the dead body in two parts. He was not able to explain as to whether the head was chopped off after or before the death. The sum and substance of the post-mortem report is the doctor found the dead body of the deceased in two pieces- one in head and second in the rest of the body. He was not able to explain as to whether the head was chopped off after or before the death. The sum and substance of the post-mortem report is the doctor found the dead body of the deceased in two pieces- one in head and second in the rest of the body. 12. The mother of the deceased, namely, Parmeshwari Devi, was examined as P.W.7. She has stated that Sumitra was not taken away by her in-laws as they were demanding Rs.10,000/- cash and a tape-recorder in dowry. Her husband and son, Rajendra (P.W.1) had gone to the house of the accused to request them but they did not agree. Her husband and son on return, told that her son-in-law is demanding Rs.10,000/- and a tape recorder in dowry and only after fulfillment of the same they would take Sumitra in Bidai. They decided to perform the second marriage of Sumitra but Sumtra refused and decided to remain stayed at her sasural. After some time when her daughter went to her sasural, she sent her son to see her daughter and on return, he reported that her in-laws used to torture and assault her. After four months, police came and informed her that Sumitra has been killed. On receiving such information, she went to Nawadah Hospital and identified the dead body of her daughter. In her cross examination, this witness has stated that Arjun used to make demand of money and a tape-recorder. She has stated in paragraph-12 of her evidence that she has stated before Darogaji that Arjun used to make demand of Rs.10,000/- cash and a tape-recorder and the accused persons were not ready to take back her in Bidai in case the demand is not fulfilled. She has clarified that Arjun had demanded money and a tape-recorder from her husband and not from her personally and nor in writing. She did not receive any letter of Sumitra and no one has come from the village of the accused persons to make complaint about the torture of her daughter. 13. The other family members of victim are P.Ws. 1 and 2. Both are brothers of the deceased. They have stated that their sister was married with Arjun Choudhary. After marriage, she went to her in-law’s house and after remained there for some time, she alongwith her husband came to their house. 13. The other family members of victim are P.Ws. 1 and 2. Both are brothers of the deceased. They have stated that their sister was married with Arjun Choudhary. After marriage, she went to her in-law’s house and after remained there for some time, she alongwith her husband came to their house. Their sister remain stayed at their house whereas her husband came. After sometimes on his return, Arjun Choudhary wrote a letter giving threatening that if Rs.10,000/- would not be given by them to him, he would not take back her sister in Bidai. After receiving the letter, they alongwith their father went to the sasural of Sumitra where all the accused persons told them to fulfill the demand of Arjun Choudhary, which was Rs.10,000/- and a tape-recorder, otherwise, they would not bring Sumitra in Bidai. Informant and family decided to perform the second marriage of their sister but her sister refused the same. Her sister went to her sasural on the occasion of Chhath. After three months, they received information that their sister has been killed by the sasural people by cutting her neck. After receiving information the informant, mother, father and sister went to the sasural of Sumitra where they were informed that the sasural people of Sumitra after committing her murder has thrown her dead body in Joba river and also learnt there that her dead body has been sent to the Nawadah Hospital and on reaching their they saw the dead body of Sumitra in two pieces. Her head was found cut separate from the body. Sumitra had left their house without seeking their permission. Sumitra was a literate lady but she has not sent any letter making complaint about demand of dowry against the accused persons. They have stated that it is not true that their sister has committed suicide by hanging herself. 14. The informant, Awadhesh Singh (P.W.3), Officer-in-charge of Akbarpur Police Station, has stated in his evidence that after receiving information about the murder of the wife Arjun Choudhari at Akbarpur Haat by Arjun Choudhary and his family members, he constituted the team and went to the house of Arjun Choudhary in search of the wife of Arjun Choudhary but he came to know that she has been killed and her dead body has been concealed. Girani Choudhary was intercepted there, who gave information that his family members has committed the murder of the wife of Arjun Choudhary and concealed her dead body in the river. On being pointed out by Girani, her dead body was recovered. P.W.3, Awadhesh Singh, has further stated that P.W.4, Awadhesh Singh, was the constable and the member of the team, who apprehended Girani Choudhary, which led to the recovery of the dead body of the deceased. The sickle and dagger which was suspected to have used to commit the murder have been recovered from the place and, accordingly, seizure list of the sickle and dagger was prepared but the I.O. has stated that the same were not sent for chemical examination to the Forensic Science Laboratory but no explanation has been given for the same. 15. Learned counsel for the appellants submitted that the witnesses have stated different versions about the lying of the dead body of the deceased, meaning thereby they have not seen the occurrence. It is also submitted that when P.W.7 in paragraph-8, P.W.4 in paragraph-6 and P.W.1 in paragraph-13 have stated that the tongue was not protruded whereas P.W.2 in paragraph-8 has stated that the tongue was protruded. It has been argued that this contradiction creates a doubt regarding veracity of the prosecution case and the witnesses were made to depose at the behest of the prosecution party. It is also submitted that initially the witnesses before the police have not stated about the demand of dowry and it was subsequently presumed as the case would not be proper under Section 302 of the Indian Penal Code and, as such, to give more teeth regarding seriousness and with the purpose that the case could come under Section 304-B of the Indian Penal Code, demand of additional dowry was subsequently made. It is also submitted that without permission of the court, P.W.2 has been examined as a charge sheeted witness. The person most responsible for giving the details of demand of dowry (the father of the deceased) was not examined by the prosecution. 16. It is also submitted that without permission of the court, P.W.2 has been examined as a charge sheeted witness. The person most responsible for giving the details of demand of dowry (the father of the deceased) was not examined by the prosecution. 16. On the other hand, learned A.P.P. submitted that in this case, the trunk and head, in two parts, were recovered on the confessional statement of Girani Choudhary and Girani Choudhary has given the names of all the accused persons in his confession and his confession can be treated to be true for proving the charge against the accused persons. 17. The trial was conducted against the 10 accused persons. The age of Manju Kumari and Pushpa Kumari had been shown as 12 and 16 years respectively and, subsequently, their trial was separated. The age of Girani Chaudhary has been shown to be 19 years in the Judgment and the age of Arjun Choudhary, the husband of the deceased, has been shown as 20 years. The statements of Arjun Choudhary and Girani Choudhary were recorded under Section 313 of the Code of Criminal Procedure in the month of January, 1990. Arjun Choudhary has claimed himself to be of 18 years and his age has been assessed as 20 years whereas the age of Girani Choudhary has been assessed to be 19 years in January, 1990. At that time, he has stated himself to be 16 years. The occurrence is of 3.7.1988. Learned counsel for the appellants submitted that in that view of the matter, on the date of occurrence, they were juvenile but they were convicted. One fact which has come in the evidence is the confession of Girani Choudhary, which led the recovery of the dead body of the deceased in two parts. In his confessional statement (Ext.4), Girani Choudhary has described the concealing of the dead body of the deceased, which led the recovery of the same. Girani Chudhary has also stated that when Sumitra committed suicide by hanging herself then the accused persons to disappear the evidence has shifted the dead body. Girani Choudhary is the brother of Arjun Choudhary with whom the deceased was married. It has come during investigation, Sumitra Devi was not liked by Arjun Choudhary due to the spots of chicken pox on her face. The demand of dowry was not fully substantiated. There are two versions of the prosecution case. Girani Choudhary is the brother of Arjun Choudhary with whom the deceased was married. It has come during investigation, Sumitra Devi was not liked by Arjun Choudhary due to the spots of chicken pox on her face. The demand of dowry was not fully substantiated. There are two versions of the prosecution case. There is not even a whisper about the demand of dowry against the accused-appellants. Nothing has also come in the evidence of the witnesses that the demand of dowry was made at the time of marriage. The marriage was dowryless. 18. The demand of dowry can be raised at any stage. It has been submitted that suicide or killing of the deceased was on account of non fulfillment of dowry demand. Even the witnesses and the family members of the deceased contradicted their versions. During course of trial, it has come that the deceased was a literate lady but she has not written any letter with regard to demand of dowry made by her in-laws. It has also come that Arjun Choudhary has written letter to his sasural making demand of dowry. Further, the father of the deceased, who is the most important witness, was not examined on behalf of the prosecution. P.W.7, Parmeshwari Devi, the mother of the deceased has stated in paragraph-12 of her evidence that she has stated before Darogaji about demand of dowry by the appellant, Arjun Choudhary but she has clarified that Arjun had not demanded the same from her personally nor in writing. On the strength of conflicting evidence no inference can be drawn against accused persons and if such conflicting evidence comes during the course of trial the prosecution case becomes doubtful. The discussion on the strength of the evidence goes to show that the allegation of demand of dowry was subsequently added, which cannot be accepted. 19. So far as the offence under Sections 201 read with Section 34 of the Indian Penal Code is concerned, it is apparent that the dead body of the deceased was recovered at the behest of the appellant, Girani, and the dead body was found in two pieces and to disappear the evidence the same was concealed in Joga river. 19. So far as the offence under Sections 201 read with Section 34 of the Indian Penal Code is concerned, it is apparent that the dead body of the deceased was recovered at the behest of the appellant, Girani, and the dead body was found in two pieces and to disappear the evidence the same was concealed in Joga river. To prove that the death was homicidal, the evidence was to be brought on record that the death was on account of violence and on this score, it can be said that the charge of homicidal death is not proved. There are two versions and the same are required to be proved by the medical evidence so that the charge under Sections 302 read with Section 34 of the Indian Penal Code could be established. The case of these appellants, namely, Girani Choudhary and Arjun Choudhary, is different from the case of the other appellants. 20. After analyzing the evidence of the witnesses available on the record and considering the submissions of the learned counsel for the appellants and the State, we are of the view that the appellants, Girani Choudhary and Arjun Choudhary are not found guility for the offence under Section 304-B read with Section 34 rather both are found guilty under Section 201 read with Section 34 of the Indian Penal Code and the other appellants are entitled to get the benefit of doubt. 21. Accordingly, the conviction of the appellants, Girani Choudhary and Arjun Choudhary for the offence under Section 201 read with Section 34 of the Indian Penal Code is upheld whereas the other appellants, namely, Lakhan Chaudhary, Bhola Choudhary, Dasia Devi and Amriki Devi, are acquitted of the charges levelled against them. As they are on bail, they are discharged from the liabilities of their bail bonds. The appellants, , Girani Choudhary and Arjun Choudhary, have remained in custody for about 3 and half years and it would be sufficient to meet the ends of justice if their sentences is modified to the extent which they have already undergone. 22. With the aforesaid modification in the sentences of the appellants, Girani Choudhary and Arjun Choudhary, these appeals are allowed in part. Appeals partly allowed.