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2015 DIGILAW 858 (PAT)

Fulwa Devi @ Darshani Devi v. State of Bihar

2015-06-29

AHSANUDDIN AMANULLAH, DHARNIDHAR JHA

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JUDGMENT : DHARNIDHAR JHA, J. The two appellants, mother and son between themselves, appeal to this Court by preferring their individual appeals challenging the judgment of conviction and order of sentence passed by the learned Presiding Officer, Fast Track Court-II, Nawadah on 31.03.2010 and 05.04.2010 respectively in Sessions trial No.175 of 2009/236 of 2009. The appellants were tried jointly by being charged together for committing offences under Sections 304B/34 and 201 of the Indian Penal Code as also under Sections 3/4 of the Dowry Prohibition Act and after being held guilty of committing those offences each of them was directed to suffer rigorous imprisonment for life under Sections 304B/34 of the Indian Penal Code and rigorous imprisonment for three years as also to pay a fine of Rs.2,000/- on account of being convicted of offence under Section 201 of the Indian Penal Code. As regards the conviction of the appellants under Sections 3/4 of the Dowry Prohibition Act each of them was directed to suffer rigorous imprisonment for six months as also to pay a fine of Rs.1,000/- each. In none of the counts of the conviction of the appellants, there was a direction as to what could be the consequence if the appellants had not paid the fine imposed upon them and the learned Judge rather passed a consolidated order in that behalf, directing the appellants to suffer rigorous imprisonment for three years if they had not paid the fine imposed upon them. 2. Some of the facts are not disputed. The deceased Rekha Kumari who happened to be the daughter of Mana Rajbanshi (P.W.3) was married to appellant Sanjeevan Ram in the month of ‘Baisakh’, 2007. She was residing in the house of the appellants prior to 16.10.2008 and her dead body was found floating in the river water at village-Karnapur in the streams of river Sakri and that was retrieved from there. It is also not disputed that the deceased Rekha Kumari having been married for about a year, had not given birth to any child and further that no real cause of death of the deceased could be detected by the doctor who had held postmortem examination on her dead body. It is also not disputed that the deceased Rekha Kumari having been married for about a year, had not given birth to any child and further that no real cause of death of the deceased could be detected by the doctor who had held postmortem examination on her dead body. The other undisputed fact which appears from the evidence of the informant P.W.3 Mana Rajbanshi from paragraph-11 of his evidence, was that the family of the informant and that of the accused persons were of labourers and they used to earn their daily livelihoods after labouring for others. 3. In the above undisputed background, the allegations which were made by P.W.3 against the appellants through his written report dated 16.10.2008 were that after the marriage of appellant Sanjeevan Ram to the deceased Rekha Kumari, the appellants were pestering the informant for giving a television as also a V.C.P. and on account of not getting the demand much, he used to beat the lady up. It was stated that the appellant Sanjeevan Ram had come to the house of the informant on the occasion of ‘Jivtia’ festival for taking his wife to his house but refused to take the lady back to his family fold unless he was paid Rs.10,000/- and, lastly, he took the lady away to his house after he was paid Rs.2,000/- . The informant stated that appellant Fulwa Devi @ Darshani Devi had given two repeated calls on two cellular phones bearing numbers 9939409062 and 900633570 stating that the deceased Rakha Kumari was suffering from diarrhoea and her condition had become serious and, as such, he should come. The informant stated that he along with his wife Gayatri Devi (P.W.4) and others of his family went to village-Karnapur and did not find the deceased Rekha Kumari, his daughter, in spite of search. He found that the two appellants had also deserted their house and in spite of quite some hectic search made by the informant, he neither could find out his daughter Rekha Kumari nor could the appellants. He, ultimately, suspected some foul play at the hands of the appellants and filed the written report complaining of the suspected killing of his daughter and causing her dead body to disappear. 4. He, ultimately, suspected some foul play at the hands of the appellants and filed the written report complaining of the suspected killing of his daughter and causing her dead body to disappear. 4. The case was registered under Sections 304B and 201/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act by the Police and P.W.5 S.I. Baleshwar Prasad Yadav took up the investigation who, as pointed out earlier, retrieved the dead body from the streams of river Sakri in villager-Karnapur and held inquest upon it so as to dispatching the same for postmortem examination. The inquest report has been marked Ext-4. Dr. Ramchandra Prasad (P.W.6) held postmortem examination on the dead body of deceased Rekha Kumari and appears not finding any perceptible injury externally or internally. He found that the dead body was badly decomposed, emitting foul smell. The external surface of the dead body was smeared with mud and the skin was peeling off at several places. Subcutaneous tissues were partly dry, the brain matter was normal and softened and both lungs were intact and dry. Heart was empty on either of its side along with the stomach bladder was also empty. Uterus was of normal size and shape. No fracture or injury was found anywhere over the muscular skeletal parts. On account of finding no clue regarding the death of the deceased Rekha Kumari, P.W.6 Dr. Ramchandra Prasad had preserved the viscera and we do not have any report before us as to what exactly was detected after chemical analysis of the same. Thus, what we find after perusing the evidence of P.W.6 is that there was no cause of death detected by him and the same state of cluelessness as regards the cause of death continues till date. 5. The investigating officer, P.W.5 after closing the investigation, sent up the two appellants for trial and as pointed out earlier, the same ended in their conviction and sentences which were inflicted upon them. 6. The defence of the appellants was that no offence had been committed by them and the deceased Rekha Kumari died of illness and on account of her sudden and unnatural death of illness, as per customary rites of cremating such body, it was consigned to the stream of river from where the same was retrieved. 7. 6. The defence of the appellants was that no offence had been committed by them and the deceased Rekha Kumari died of illness and on account of her sudden and unnatural death of illness, as per customary rites of cremating such body, it was consigned to the stream of river from where the same was retrieved. 7. We have already noted that the families of the informant and both the appellants were those of labourers. P.W.3 admitted in paragraph-11 that he laboured for others to earn Rs.50/- per day and he had to feed seven children also on the earning of himself and his wife who used also to earn Rs.50/-. Thus, admittedly the family of the informant was of nine persons. If we could assume that the informant and his wife were getting engaged every day then they might earning Rs.100/- per day which was spent for feeding nine persons, two adults and seven children. We do not have any evidence as to what was the age of the offspringings of the couple, but still in our opinion and in our estimate even in the year 2008 a sum of Rs.100/- could not be sufficient by any means to purchase things of daily needs to feed nine persons. If this was the financial condition of the informant, then we begin with the assumption that he could not be in a position to be asked for a television or a V.C.P. Not only that while we were considering the evidence of the same informant, he was admitting that the family of the present appellants also belonged to the same class of labourers. We may suspect that the accused persons might be trying to purchase some comfort at the cost of the living of the informant, but considering the initial story which was coming through the evidence of the informant that it was a dowryless marriage which was solemnized between two children of families of same status, we find a very weak inference which could be drawn by us. Thus, we begin with the inference that the informant could not have been asked to give a television or a V.C.P. to the appellants. 8. Thus, we begin with the inference that the informant could not have been asked to give a television or a V.C.P. to the appellants. 8. Likewise, the very initial story that on the occasion of ‘Jivtia’ appellant Sanjeevan Ram had come and had demanded Rs.10,000/- and had put the payment up as a pre-condition for taking away his wife with him to his house. The informant stated that the family of the appellants was paid Rs.2,000/- then he took away his wife with him. We have already noted the financial condition of the informant and the economic well-being of the appellants also. It appears very difficult for us to accept that the appellants in the background of their own financial condition as also in the background of the same of the informant, could be putting up Rs.10,000/- to be paid as a condition for taking his wife away with him. 9. Allegations had been made that the deceased was illtreated and tortured but we do not have any concrete evidence by way of instance as when and at what time the deceased had been assaulted. We do not also have any further evidence to convince us that in fact the deceased Rekha Kumari was living in her father’s house when the appellants had gone to bring her back. No independent person came forward to depose to those facts; only the family members of the informant were coming to depose in support of his story and the circumstances which we have already pointed out do not convince us that it could be a case that the lady could be illtreated and tortured and ultimately killed. If the lady had been killed or had been tortured so as to end her life then the non-finding of the injury on her dead body controverts the prosecution allegations. The doctor as we have pointed out, did not found even a single scratch on the dead body either externally or internally. In the above background, it appears satisfactorily probable for us that the deceased might have died on account of any reason than what was alleged by the prosecution. 10. In light of the evidence available on record and in view of the findings which we have just reached, we find the appeal meritorious. The same is allowed. The judgment of conviction and order of sentence passed upon the two appellants are hereby set aside. 10. In light of the evidence available on record and in view of the findings which we have just reached, we find the appeal meritorious. The same is allowed. The judgment of conviction and order of sentence passed upon the two appellants are hereby set aside. The two appellants are acquitted of the charges they had been held guilty of. The appellant Fulwa Devi @ Darshani Devi is on bail and she shall stand discharged from the liabilities of her bail bonds. Appellant Sanjeevan Ram is in custody, he shall be released forthwith, if not wanted in any other case.