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2015 DIGILAW 1198 (PAT)

Kaushalya Devi v. State of Bihar

2015-09-14

GOPAL PRASAD

body2015
JUDGMENT : GOPAL PRASAD, J. 1. These three appeals have been heard together and are being disposed off by this common judgment as they arise out of same judgment and order, dated 12.01.2012, passed by the Additional District and Sessions Judge, Fast Track Court, III, Sitamarhi, in Sessions Trial No. 427 of 2003, by which the appellants, Kaushalya Devi and Mahesh Sah, the mother-in-law and brother-in-law (bhainsur) of the victim-deceased, Uma Bharti @ Maju, have been convicted under Section 304-B of the Penal Code and sentenced to undergo rigorous imprisonment for seven years and have further been convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 5,000/- each and for non-payment of fine to undergo simple imprisonment for three months each. The appellant, Mithilesh Kumar, the husband of the victim-deceased, Uma Bharti @ Manju, convicted under Section 304-B of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and has, further, been convicted under Section 498-A of the Penal Code and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 5,000/- and in case of default in payment of fine to undergo simple imprisonment for three months. 2. The prosecution case, as alleged in the first information report by the informant, Tileshwar Sah, the father of the victim-deceased, Uma Bharti @ Manju, alleging therein that the marriage of Uma Bharti @ Manju was solemnized with the appellant, Mithilesh Kumar, in February, 2000, as per the Hindu customs. It is, further, alleged that in the marriage he spent money to welcome the baratis in the marriage and after marriage the victim-deceased went to sasural. When she returned after three months from sasural, she disclosed that for nonPatna fulfillment of motorcycle and colour television, in dowry, her husband, mother-in-law, father-in-law and brother-in-law (bhainsur) used to assault her and subjected her to cruelty by various means. The, further, case that the informant along with his brother, Ram Mohan Prasad, went to the father-in-law, mother-in-law and husband of the victim-deceased and requested that he had spent money more than his capacity and requested not to subject the victim-deceased to cruelty. However, on several requests the accused persons did not accede to their demand and when the victim-deceased went to sasural she was again subjected to cruelty. However, on several requests the accused persons did not accede to their demand and when the victim-deceased went to sasural she was again subjected to cruelty. Further, case that the victim-deceased used to communicate about the subjecting cruelty on her person and even informed the informant that if they want to see her alive, then, satisfy the demand. The, further, case that on 26.06.2002 at 04.30 A.M. one Narayan Paswan (not examined) informed the informant that at Sutihari Chowk he has been informed by some travelers that the informant’s daughter has been done to death by the father-in-law, mother-in-law, brother-in-law and husband by poisoning and they had been to Sitamarhi along with the dead body of the victim on a maruti van. The informant, immediately, proceeded along with his uncle, Ram Mohan Prasad, P.W.5, Chitlal Sah, P.W.7 and others to Sitamarhi and when they reached at Suthari Bazar saw his samdhan and samdhi and the sister-in-law coming along with the dead body of Uma Bharti @ Manju on a maruti van. The maruti van was apprehended by the villagers and brought it to the Central School, Sutihari, and, thereafter, uncle of the informant, Ram Mohan Prasad, and his cousin brother, Dhanesh Kumar, came to Sursang and enquired about the occurrence at the house of his samdhi and, then, the local people disclosed that Mithilesh Sah, Krpali Sah, Kaushalya Devi and Mahesh Sah has poisoned the victim-deceased to death and seeing the temper and tenor of the villagers having been emboldened to assault they kept the accused in the house of one Raj Narayan Yadav. The fardbeyan of the informant, P.W.9, Tileshwar Sah, was recorded by the police at 09.45 A.M. on 26.06.2002 near the Central School, Sutihar, at the house of Raj Narayn Yadav before the Officer-in-Charge of Sursand Police Station. On the fardbeyan, the first information report lodged, investigation proceeded, during investigation the investigating officer inspected the place of occurrence, recorded the statements of the witnesses, the inquest report prepared and the dead body was sent for post mortem examination, the post mortem conducted, the viscera collected and sent for chemical examination to Forensic Science Laboratory and police after investigation submitted charge sheet on the basis of the said charge sheet cognizance taken, case committed to the Court of sessions and after commitment the charges were framed and witnesses examined. 3. Altogether eleven witnesses were examined by the prosecution. 3. Altogether eleven witnesses were examined by the prosecution. P.W.1 is Bablu Raut. He is the driver of the maruti van in which the victim-deceased was being taken to Hospital and from the vehicle the dead body and the appellants were apprehended. P.W.2 is Pavnesh Kumar. He is the uncle of the victim-deceased. P.W.3 is Surendra Prasad, however, this witness has been declared hostile by the prosecution. P.W.4 is Paras Sah. This witness has been declared hostile by the prosecution case. P.W.5 is Radha Mohan Prasad, the uncle of the informant, Tileshwar Sah, and has come to support the prosecution case regarding the marriage having been solemnized in 2000, demand and subjecting cruelty for non-fulfillment of demand and the victim-deceased has been done to death. P.W.6 is Ravindra Kumar Sinha, a paper vendor. P.W.7 is Chitlal Sah. P.W.8 is Sushila Devi, the mother of the victim-deceased and has come to support the prosecution case regarding the marriage having been solemnized and demand and subjecting cruelty for non-fulfillment of demand of colour television and motorcycle. P.W.9 is Tileshwar Sah, the informant, who has come to support the prosecution case regarding the demand. P.W.10 is Dr. Laliteshwar Prasad Jha, who conducted the autopsy on the person of the deceased, Uma Bharti @ Manju. He found no external injury present on her person and in his opinion the cause of death could not be ascertained, hence, the viscera was preserved for chemical examination and has proved the post mortem report, marked as Exhibit 4. P.W.11 is the investigating officer. 4. The defence has also adduced oral and documental evidences. The oral evidence adduced by P.W.1, Munna Kumar and P.W.2 Deen Bandhu Kumar and has proved the report of the Forensic Science Laboratory Exhibit “A”. The defence of the accused is that the prosecution has falsely implicated the appellants and they have deposed falsely. The victim-deceased was not done to death by poisoning and real fact that in the night the victim-deceased developed abdominal pain and while she was being taken to Hospital she died and the victim-deceased has neither been subjected to cruelty for any demand nor any demand of motorcycle or colour television was made. 5. The trial Court, taking into consideration the evidences of the witnesses, both, oral and documentary, convicted the appellants though the Forensic Science Laboratory report did not find the poison. 5. The trial Court, taking into consideration the evidences of the witnesses, both, oral and documentary, convicted the appellants though the Forensic Science Laboratory report did not find the poison. The Doctor has also not determined the cause of death, but, in the post mortem report there was blood mixed with froth coming out from the nose and mouth of the victim-deceased, hence, taking into consideration the death in suspicious circumstance followed with the death having done in sasural and there was demand and subjecting cruelty within seven years of marriage. 6. The learned counsel for the appellants, however, contends that there is no cogent and reliable evidence with regard to the demand and subjecting cruelty. It has, further, been contended that there is no evidence that soon before the death the victim-deceased was subjected to cruelty. It has, further, been contended that the death has not been established in suspicious circumstance. It has, further, been contended that though the death has been alleged to be by poison and though the Doctor has found the froth mixed with blood coming out of nose and mouth, but, the Doctor in post mortem examination has specifically stated that the cause of death has not been ascertained and the Forensic Science Laboratory report proved by the defence has reported that no alkaloidal or metallic pesticidal or volatile could be detected, hence, the death by poisoning has been ruled out. It has, further, been contended that though the Doctor has found that froth mixed with blood found coming out from the nose and mouth, but, the Doctor, in his cross examination, has stated that the passage of blood mixed with froth coming out from the nose and mouth can be caused due to various reason, hence, contended that in view of these facts and evidences, the findings recorded by the trial Court that death in suspicious circumstance not sustainable, hence, there is no ingredients that the cause of death is in suspicious circumstances, then, the offence under Section 304-B of the Penal Code is not sustainable. 7. The learned counsel for the State, however, supported the prosecution case that the order of conviction and sentence that all the ingredients having been established as the marriage solemnized within seven years. 7. The learned counsel for the State, however, supported the prosecution case that the order of conviction and sentence that all the ingredients having been established as the marriage solemnized within seven years. There is allegation of demand and subjecting cruelty and the death in suspicious circumstance and the Doctor has found froth coming out of the nose and mouth. 8. Taking into consideration the respective submissions, it is apparent that the marriage solemnized within seven years, there is allegation that there was demand and subjecting cruelty and for non-fulfillment of demand, the victim-deceased was subjected to cruelty as well as the victim-deceased died in the matrimonial home and it is alleged that the death is by poisoning. However, taking into consideration the submissions that there is cogent and reliable evidence that P.Ws. 5, 7, 8 and 9 have stated that the marriage solemnized in 2000 and this fact has not been challenged though there is allegation that after the marriage when the victim-deceased went to sasural she was subjected to cruelty for non-fulfillment of demand and witnesses have deposed that though victim-deceased used to disclose about the subjecting cruelty and there is allegation of demand of motorcycle and colour television. The evidence of P.W.9 and P.W.8 are most relevant where P.W.9 is the informant who has stated that after the marriage his daughter went to sasural and when she returned after three months to maike, then, she disclosed that she is being subjected to cruelty for non-fulfillment of demand of motorcycle and colour television. However, these evidences regarding subjecting cruelty and demand are general and omni bus against all the family members, father-in-law, mother-in-law, brother-in-law and husband. P.W.5 stated that on 21st June, 2002, when the informant went to meet his daughter, then, his daughter disclosed regarding subjecting cruelty and again said that they used to come and go, but, she still subjected to cruelty. However, in his evidence in paragraph 6, this witness stated that after three months when his daughter came from sasural, she disclosed about the demand and subjecting cruelty. However, he has stated that it was in the month of May, 2002, but, he did not remember the date and day and he did not remember when he went to sasural of his daughter. However, he has stated that it was in the month of May, 2002, but, he did not remember the date and day and he did not remember when he went to sasural of his daughter. The learned counsel for the appellants has given great emphasis on this part of the evidence that when the victim-deceased came for the first time from sasural. It was May, 2002, as mentioned in paragraph 6 and it is stated that the occurrence, itself, is dated 26.06.2002, hence, the evidence of informant is not correct. However, mere wrong mentioning the date will not rule out the evidence of demand and subjecting cruelty. When P.W.8 has also supported the prosecution case regarding the disclosure about the plea for non-fulfillment of motorcycle and colour television by the victim-deceased, but, again, allegation against in-laws are general and omni bus regarding demand and subjecting cruelty. However, even if accepting these evidences that there was demand and subjecting cruelty, the ingredients that the victim-deceased was done to death in suspicious circumstances is ruled out in view of Exhibit 8. The prosecution case is not specific against the appellants that the victim-deceased was done to death by poisoning and the post mortem report though states that the froth and blood coming out from the nose and mouth. However, having regard to the viscera report, Exhibit “A” there is no poison or any such material found. The viscera report shall supersede the evidence of the Doctor in regard to poison. However, the evidence of the Doctor, P.W.8, also does not mention that the cause of death mentions that froth mixed with blood coming out from the nose and mouth. However, from the evidence of P.W.10, the Doctor that there was no external injury on the person of the victim-deceased, hence, subjecting cruelty by assault or other means at about the time of occurrence or at about the time of death of the victim-deceased, the subjecting cruelty is ruled out. However, from the evidence of P.W.10, the Doctor that there was no external injury on the person of the victim-deceased, hence, subjecting cruelty by assault or other means at about the time of occurrence or at about the time of death of the victim-deceased, the subjecting cruelty is ruled out. Further, the suspicion that the blood mixed with froth coming out from the mouth and nostril probablize the case of poisoning is also ruled out in view of the evidence in cross examination of the Doctor that he did not find any internal injury on the dead body and has, further, found that the discharge of the blood mixed with froth from nostril and mouth can be caused due to various reasons and it creates a circumstance for reasonable doubt whether the death has been caused by poisoning. To take the presumption under Section 304-B of the Penal Code, it is required that the prosecution must establish each of the four ingredients beyond all reasonable doubts that the marriage solemnized within seven years, that there is demand and subjecting cruelty and the death of the victim-deceased in suspicion circumstance as well as soon before the death the victim-deceased has been subjected to cruelty. So far the ingredient that the death in suspicious circumstance has not been established in view of the viscera report as well as evidence of the Doctor that blood mixed with froth coming out of the nostril and mouth can be caused due to various reason, hence, the prosecution case has not been able to establish the case of poisoning or death of the victim-deceased in suspicious circumstance. Hence, when the ingredients of the offence under Section 304-B of the Penal Code has not been made the presumption under Sections 304-B of the Penal Code and Section 120-B of the Penal Code can not be taken to establish the offence. 9. Hence, the conviction and sentence, recorded by the trial Court for offence under Section 304-B of the Penal Code is hereby set aside and the order of conviction to hold that the prosecution has not been able to prove the charges for offence under Section 304-B of the Penal Code, I acquit the appellants of the charge. 9. Hence, the conviction and sentence, recorded by the trial Court for offence under Section 304-B of the Penal Code is hereby set aside and the order of conviction to hold that the prosecution has not been able to prove the charges for offence under Section 304-B of the Penal Code, I acquit the appellants of the charge. So far the offence under Section 498-A of the Penal Code is concerned, the allegation against Kaushalya Devi and Mahesh Sah regarding the demand and subjecting cruelty is general and omni bus and there is no specific allegation against them, hence, it is hereby held that the prosecution has not been able to prove the case for offence under Section 498-A of the Penal Code and the conviction, recorded under Section 498-A of the Penal Code by the trial Court is hereby set aside. However, so far the husband is concerned, there is allegation that there was demand and subjecting cruelty, hence, the conviction of the husband for offence under Section 498-A of the Penal Code sustains. Since husband has already remained in jail for more than three years, has already served the sentence for offence under Section 498-A of the Penal Code. 10. Criminal Appeals (S.J.) No. 55 and 77 of 2012 are hereby allowed and Criminal Appeal (S.J.) No. 195 of 2012 is allowed in part. 11. Since appellants, Mahesh Sah (Criminal Appeal (S.J.) No. 77 of 2012) and Mithilesh Kumar (Criminal Appeal (S.J.) No. 195 of 2012) are on bail, they are discharged from the liabilities of their bail bonds. So far appellant, Kaushalya Devi (Criminal Appeal (S.J.) No. 55 of 2012) is concerned, she is in custody, hence, she is ordered to be released forthwith, if not wanted in any other case and discharged from the liability of her bail bond.