Research › Search › Judgment

Patna High Court · body

2015 DIGILAW 1156 (PAT)

Bilo Pandit v. State Of Bihar

2015-09-07

GOPAL PRASAD

body2015
JUDGMENT : Both these appeals are heard together and are being disposed off by this common judgment. 2. In Criminal Appeal (S.J.) No. 367 of 2013, appellant, Sheo Narain @ Shiv Narayan Pandit, a question has been raised during the pendency of the appeal regarding the juvenility of the appellant on the date of occurrence and a matriculation certificate was filed claiming that on the date of occurrence as per the matriculation certificate, prior to the incident, the appellant was juvenile, hence, the matter was sent to the Juvenile Justice Board for a report and a report has been received. It is reported that the appellant was juvenile on the date of occurrence as he was only sixteen years nine month and 15 days, as per the matriculation certificate and the matriculation certificate has been verified by the Bihar State Examination Board to be proved. the learned counsel for the appellants, however, contends that the appellant was already in jail in all for three years as he was in jail from 09.08.2006 to 12.03.2007 and, further from the date of conviction, i.e., 01.04.2013, till date, hence, since he has already remained in jail for three years and the provision contained in Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, as well as Rule 98 of Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as, “the Act”)as per the decision reported in (2010) 15 SCC, 83 (Ajay Kumar Vrs. State of Madhya Pradesh) if the appellant has remained in detention for more than the period provided for under Section 15 of the Act, then, as per Rule 98 of the Act he is required to immediately be released, hence, having regard to the facts of this case, the appellant, Sheo Narain @ Shiv Narayan Pandit, has already remained in jail for three years, it can be ordered for his release forthwith, if not required in any other case. 3. 3. In Criminal Appeal (S.J.) No. 319 of 2013 the appellants are father-in-law and mother-in-law of the victim-deceased, who are non-else than the father and mother of Sheo Narain @ Shiv Narayan Pandit and they are convicted for offence under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and have, further, been sentenced to undergo simple imprisonment for three years and a fine of rupees one thousand each for offence under Section 201 of the Penal Code and in default of fine to undergo simple imprisonment for two months. 4. The prosecution case as alleged by the informant, P.W. 6, Arjun Pandit, that he has married his daguther Anita Devi (deceased) with Sheo Narain @ Shiv Narayan Pandit about three years back. For some time the matter remained proper, but, thereafter, there is allegation of demand of motorcycle. It is further alleged that the accused persons, namely, Shiv Narayan Pandit, Kewal Pandit, Mauli Devi, Bilo Pandit, Rukmini Devi, Sukal Pandit and Sarjun Pandit always to have quarrel and assault the victim-deceased and they also used to tell her as dwarf and nati. It is, further, alleged that the victim-deceased was subjected to cruelty and assault and even thrown out of the house for non-fulfillment of the demand of motorcycle. In this regard, several times there were panchayati and even assurance was given in the Panchayati for keeping the victim with due dignity. It is, further, alleged that on 31.05.2006 in the night all the accused persons in furtherance of common intention killed the victim-deceased and the dead body was disposed off. The, further, case is that the information was received by the informant on 11.06.2006 in the morning from his brother-in-law Nai Narain Pandit, then, he went and enquired and learnt that above mentioned accused persons done to death and disposed off the dead body in the night itself. On the fardbeyan the first information report lodged and police after investigation submitted charge sheet, cognizance taken, case committed to the Court of sessions, and charge framed under Section 304B of the Penal Code. However, during the trial nine witnesses were examined by the prosecution. 5. P.W. 1 is Kamleshwari Pandit, maternal grandfather of the deceased though has supported the prosecution case about subjecting cruelty for non-fulfillment of demand and demand of motorcycle. However, during the trial nine witnesses were examined by the prosecution. 5. P.W. 1 is Kamleshwari Pandit, maternal grandfather of the deceased though has supported the prosecution case about subjecting cruelty for non-fulfillment of demand and demand of motorcycle. However, has stated that he did not saw the accused persons assaulting the victim-deceased or burning her to death. P.W. 2 is Ashish Kumar Pandit, the brother of the victim-deceased, supported the prosecution case about the marriage solemnized and demand of motorcycle and addressing the victim-deceased as dwarf. He has also come to say that Sheo Narain @ Shiv Narayan Pandit has given him a photograph to give his father and ask him to give motorcycle and informed his father. He has also stated that his phoopha informed his father that the victim deceased has been done to death. He has also stated that his phoopha is resident of village Basauna and he has, further, stated that the marriage solemnized was idle marriage and in doragaman also there was no demand. P.W. 3 is Sudha Devi. She is mother of the victim-deceased has supported the prosecution case about demand and subjecting cruelty and her husband and brother had gone for Panchayati in Basauna village though has stated that there was good relation between the husband and wife and the husband of the victim used to come with the wife. P.W. 4 is the maternal uncle. P.W. 5 is the mausa of the victim-deceased and has stated that he has also supported the prosecution case, but, in cross examination accepted that he has only stated about whatever he heard, hence, he is a hear-say. He is even not able to identify the accused and samdhi of the informant. P.W. 8 is the informant though he has supported the prosecution case about the marriage having been solemnized about three years back and his son informed him when he returned from the sasural of the victim-deceased about the assault on the person of the victim and subjecting her to cruelty by calling her dwarf along with the demand of motorcycle. P.W. 8 is the informant though he has supported the prosecution case about the marriage having been solemnized about three years back and his son informed him when he returned from the sasural of the victim-deceased about the assault on the person of the victim and subjecting her to cruelty by calling her dwarf along with the demand of motorcycle. However, this witness in his statement in paragraph 3 has stated that he went to Basauna village and asked his samdhi that why such type of incidents are being occurred then his samdhi told that he does not know anything, but, only stated that in between the husband and wife and such type of occurrence used to happen. He (P.W. 8) has, further, stated in his evidence that his daughter also disclosed that the demand of motorcycle is only made by husband. After fifteen days he learnt about the death of his daughter. He has also stated that he learnt that in between the house of his daughter and the house of his sister there is a road and across the road the two houses exist which is the house of his sister and brother-in-law (bahnoi) and his bahnoi was the mediator (agua) in the marriage and his bahnoi (brother-in-law) had disclosed that the family is good. P.W. 7 is the second investigating officer, who has submitted the charge sheet and P.W. 8 is the investigating officer who conducted the investigation. He got the investigation of the case on 12.06.2006 and, then, he recorded the statement of the witnesses, examined the place of occurrence though he has not found any relevant material at the place of occurrence and after investigation he did not record the statement of any panches. 6. The defence of the accused persons is that the victim deceased was ill and was under the treatment of Dr. Maya Pandey, Naya Bazar, and Dr. Shailendra Shah, Poorab Pazar and she died in the night of 31.05.2006 and the victim really was not well, but, died due to her illness. 6. The defence of the accused persons is that the victim deceased was ill and was under the treatment of Dr. Maya Pandey, Naya Bazar, and Dr. Shailendra Shah, Poorab Pazar and she died in the night of 31.05.2006 and the victim really was not well, but, died due to her illness. The, further, case of the defence is that after the death of the victim-deceased the informant and his family members were informed and they came and participated in the funeral and, thereafter, demand was made for returning of the articles of the victim and since the said articles having not been given so the false case instituted after ten days of the occurrence. The trial Court taking into consideration the oral and documental evidences convicted and sentences the appellants, as mentioned above. 7. The learned counsel for the appellants, however, contends that so far the husband is concerned, it has been held by the Juvenile Justice Board that he is a juvenile on the date of occurrence and has already been in jail for three years, hence, as per the decision reported in (2010) 15 SCC 83 (supra) taking into consideration his custody he is required to be given the benefit of Section 15 of the Act as well as Rule 98 of the Act and, accordingly, the benefit has been given that since the appellant has been declared juvenile he is required to be released forthwith, if not required in any other case. 8. So far the submission made on behalf of the father-in-law and mother-in-law of the victim-deceased, it is submitted that the allegation regarding the demand and subjecting cruelty is general and omni bus. There is no specific allegation or evidence in the evidence of the witnesses by which any specific role has been attributed either in regard to the demand or subjecting cruelty by the appellants, Bilo Pandit and Rukmini Devi. However, it has been submitted that there is clinching evidence for their non-participation regarding demand or subjecting cruelty, as per the evidence of P.W. 6 in paragraph 3 of his deposition. P.W. 6 is non-else than the father of the victim-deceased as well as the informant and he ahs stated in his evidence in paragraphs 2 and 3 that he learnt about subjecting cruelty as well as demand and calling the victim-deceased as dwarf. P.W. 6 is non-else than the father of the victim-deceased as well as the informant and he ahs stated in his evidence in paragraphs 2 and 3 that he learnt about subjecting cruelty as well as demand and calling the victim-deceased as dwarf. He has specifically stated that the samdhi disclosed that he has knowledge about this matter, however, he advised that this matter is in regard to the husband and wife and, then, he said that such type of incidents between husband and wife is generally happens. He has, further, stated in his evidence specifically that his (P.W. 6) daughter also disclosed that the motorcycle is demanded by her husband and after fifteen days he got the information about the assault and it has been contended that this is clinching evidence that specific allegation is against the husband only. It has, further, been contended that though it is alleged that the informant learnt about the occurrence on 11.06.2006 whereas the occurrence took place on 31.05.2006 and the informant learnt about the occurrence from his brother-in-law, Jai Narain Pandit. This has also come in the evidence of the informant that the house of his brother-in-law is across the road of the house of the victim deceased, but, Jai Narain Pandit did not inform on the date of occurrence nor he come to depose about his intimation. However, in view of the evidence of P.W. 6 that he learnt from Jai Narain Pandit and the house of Jai Narain Pandit across the road from the house of his daughter, the deceased, hence, it has been contended that the intimation about the death of the victim must have been received on 31.05.2006, itself, and it has also been submitted that the evidence of P.W. 3, who is non-else than the mother of the victim-deceased and the wife of the informant has stated that the information was received on 31.05.2006, itself, hence, it is apparent that the prosecution has knowledge about the occurrence on 31.05.2006, which probablize the case of the defence that the informant participated in the funeral and, thereafter, filed a false case, hence, it is contended that the order of conviction and sentence is not sustainable. 9. 9. The learned counsel for the State, however, contends that there is specific allegation that the marriage solemnized within three years and there is allegation of demand and subjecting cruelty and the victim-deceased was done to death and the dead body disposed off, hence, the prosecution is able to prove the charge beyond all reasonable doubt. However, the learned counsel for the State could not be able to show any evidence of any witness who has specifically pointed about act of commission and omission by the two appellants and, further, he could not answer the evidence of the informant, itself, that he went to the house of the victim-deceased on information that his daughter is being subjected to cruelty and asked about the occurrence, then, his samdhi disclosed that he had no knowledge and such occurrence used to happen between the husband and wife and then his daughter also disclosed that the demand of motorcycle is only made by the husband, hence, this is a clinching evidence that the demand was made only by the husband and not by the father-in-law and mother-in-law. 10. 10. Having regard to the submissions, I gone through the entire record and there is no specific evidence whatsoever regarding either demand or subjecting cruelty specifically against the father-in-law and mother-in-law and the evidence of P.W. 6 in paragraph 3 of his evidence is clinching when the informant who happens to be the father-in-law of the husband of the victim-deceased has specifically made an enquiry from samdhi who disclosed that he has no knowledge and when he asked from his daughter, who specifically stated that there is demand of motorcycle by husband having no other evidence about subjecting cruelty and much less this part of the evidence excludes the father-in-law and mother-in-law from the demand of motorcycle which were the cause for subjecting cruelty and allegation and, further, the prosecution case that an information was received about the death of the victim-deceased on 11.06.2006 in the morning from his brother-in-law, Jai Narain Pandit, itself, belied by the evidence of P.W. 3, who has stated in clear evidence that she received the information on 31.05.2006, hence, the case of the defence probablize that having information the informant went to attend the funeral and after attending the funeral, they came thereafter and the case was lodged only for the reason that the articles and were not returned the ingredient of offence against the father-in-law and motherin- law is not established. Hence, the trial Court misdirected himself in holding that the father-in-law and mother-in-law is guilty for offence under Section 304B of the Penal Code without going into the question whether there is evidence regarding the demand and subjecting cruelty and totally ignored the evidence of P.W. 6, the informant in paragraph 3 of it’s judgment. 11. The order of conviction and sentence recorded by the trial Court with regard to appellants Bilo Pandit and Rukmini Devi is hereby set aside and Criminal Appeal (S.J.) No. 319 of 2013 is allowed. Since the appellants are in jail, they are directed to be released forthwith, if not wanted in any other case. 12. Criminal Appeal (S.J.) No. 367 of 2013 having already been disposed off in view of the appellant, Sheo Narain Pandit @ Shiv Narain Pandit, having been juvenile and remained in custody for three years. Hence, the appellant, Sheo Narain @ Shiv Narayan Pandit is ordered to be released forthwith, if not required in any other case.