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2016 DIGILAW 13 (PAT)

Shanti Devi v. State of Bihar

2016-01-05

GOPAL PRASAD

body2016
JUDGMENT : Gopal Prasad, J. 1. Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal arises out of judgment of conviction dated 26.02.2014 and order of sentence dated 03.03.2014 passed by Sri Om Prakash Singh-II, Ad-hoc Additional District & Sessions Judge-III, Siwan, in Sessions Trial No. 465 of 2013 (Mairwa P.S. Case No. 198 of 2011) (G.R. No. 3507 of 2011) by which the appellant Asharfi Gupta had been convicted for offence under Section 304B of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and the appellant Shanti Devi had been convicted for offence under Section 304B of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged in the First Information Report by the informant Harendra Prasad Gupta, P.W. 5, father of the victim Anju Devi alleging therein that he had married his daughter Anju Devi with appellant Asharfi Gupta in February, 2009. In the marriage he had given several gifts as per his ability. After marriage, his son-in-law Asharfi Gupta and his family members demanded motorcycle, but he could not fulfill the demand due to his poverty. Further case is that with regard to demand of motorcycle, the husband Asharfi Gupta and his mother Shanti Devi and friends of Asharfi named Gurakh Ram, Kaushal Pal and Balkeshiya Devi the sister of Asharfi Gupta used to subject her to cruelty. Further case is that on 05.12.2011, the daughter of the informant came to his house from her Sasural Siswa Khurd and disclosed about the occurrence regarding demand and subjecting cruelty. After puja of moharram she came back to her sasural on 07.12.2011 in the evening. Thereafter, her in-laws, husband and others mentioned above were not allowing her to enter into the house and they were demanding motorcycle and assaulting that unless motorcycle is given she will not be allowed to live in the matrimonial house and they will not be kept her. Then on getting information, the informant went there and anyhow manages to understand them and then he left the sasural of the victim. Then on getting information, the informant went there and anyhow manages to understand them and then he left the sasural of the victim. It is further alleged that in the night on the same day, Anju Devi, the daughter of the informant was done to death by her husband, mother-in-law, Shanti Devi, Nanad Balkeshiya Devi and friends of Asharfi, named Gorakh Ram and Kaushal Pal by burning her after sprinkled kerosene oil but the defence taken by the accused persons she had committed suicide by sprinkled kerosene oil herself. 4. The Fardbeyan of the informant was recorded on 08.12.2011 at 8 A.M., the next day of the occurrence. On the basis of Fardbeyan F.I.R. lodged and police proceeded for investigation. During investigation the I.O. prepared inquest report of the victim Anju Devi and sent the dead body for post mortem examination recorded the statement of the witnesses. He inspected the P.O. which is village-Siswa Khurd in pucca house of Aharfi Gupta and found the unburnt dead body of the victim in the courtyard and plastic jerking of five liters of kerosene oil and the match box near the dead body of the victim at a distance of five feet and also found kerosene oil fallen on the verandah and near the dead body there is wall with pillar with black spot due to burning by fire. The police after investigation procured post mortem examination report and thereafter completing the investigation and submitted charge sheet. After submission of the charge sheet, cognizance taken and case was committed to the Court of Sessions. After framing of the charge for offence under Section 304B and 302 of Indian Penal Code trial proceeded. 5. During trial seven witnesses were examined by the prosecution. P.W. 1 Anand Kumar Gupta, P.W. 2 Dr. Sanjay Kumar who conducted the post mortem examination on the person of the deceased and found partial to deep burn involving 96% of burn of total body surface area with kerosene oil smell except both sides and puts. No external injury or mark on her body was found. P.W. 3 is Chandrawati Devi, Aunt of the victim and wife of brother of the informant. No external injury or mark on her body was found. P.W. 3 is Chandrawati Devi, Aunt of the victim and wife of brother of the informant. P.W. 4 Binda Devi, mother of the victim Anju Devi, P.W. 5 Harendra Prasad Gupta, the informant himself, P.W. 6 Samsuddin is witness of the F.I.R. and P.W. 7 Mahesh Singh, the I.O. who recorded the Fardbeyan of the informant conducted the investigation and submitted charge sheet. Defence had also adduced two witnesses as D.W. 1 Sukath Gupta, father of Asharfi Gupta, P.W. 2 Yamuna Sah. 6. The defence of the accused persons is complete denial of the occurrence as alleged by the prosecution. The case of defence that victim was not willing to reside at her sasural and prosecution party compels her to live at sasural. Further case is that marriage solemnised about eleven years back and at the time of marriage the victim was only 12 years old and she had love affairs with someone and written love letters so she was not allowed to continue her study in school or college, concealing the fact marriage solemnised so she has committed suicide as she was not willing to live in the matrimonial home. Further case is that there is neither any demand nor the victim was subjected to cruelty as alleged by the prosecution. 7. The trial court taking into consideration the material on record and case diary framed charge under Section 302 and 304B of Indian Penal Code, though, convicted the appellants for offence under Section 304B of Indian Penal Code but acquitted the appellants for offence under Section 302 of Indian Penal Code holding that prosecution has not been able to prove the charge for offence under Section 302 of Indian Penal Code as there is no eye witness to the occurrence. 8. Learned counsel for the appellants has challenged the order of conviction and sentence recorded by the trial court on the ground that marriage of the victim solemnised about eleven years back but evidence of the mother of the victim P.W. 4 who had stated that when marriage of Anju Devi was performed she was eleven years old and on the basis defence has also adduced evidence of two witnesses as D.Ws. 1 and 2 who have stated that marriage of Asharfi was solemnised in the year 2003 and that there is no valid and cogent evidence regarding demand and subjecting cruelty. It has further been contended that regarding demand and subjecting cruelty the only relevant evidence is evidence of witnesses P.W. 1 and P.W. 5. It has further been contended that evidence of P.W. 5 on the point of demand and subjecting her to cruelty are in contradiction to his earlier statement in the First Information Report as this witness, though, in court has come to support the prosecution case that on 07.12.2011 this witness claimed to have went to sasural on getting information that his daughter is not being allowed to enter into the matrimonial house and on seeing him his daughter tried to enter into the house then Asharfi Gupta caught hold of her hair and throw her out dragging her in the verandah whereas this fact has not been mentioned either in his Fardbeyan or in his further statement and hence this part of evidence suffers from contradiction and hence not liable to be relied upon. It has further been contended that this witness has specifically stated in his evidence that he had not stated this fact before the police and hence apparently this part of evidence is development and suffers from omission which amounts to contradiction. It has further been placed reliance upon judgment for appreciating the decision reported in Criminal Law Journal 4548 for appreciating the fact of the case (State of Tripura Vs. It has further been placed reliance upon judgment for appreciating the decision reported in Criminal Law Journal 4548 for appreciating the fact of the case (State of Tripura Vs. Pradeep Devnath) the judgment of Tripura High Court where in the fact the case of dowry death, the evidence of father of the deceased that when he went to the house of accused persons on the occasion of Mansa puja he found that accused persons have been torturing the deceased physically and on seeing him they stopped torture even his allegation made in the F.I.R. that he found accused persons assaulted the deceased with Dabo, but in his deposition he has stated that he found accused persons torture his daughter physically and this fact was not stated before the I.O. and his statement was contradicted in cross-examination while he admitted it and so in the fact it was concluded that on the basis of statement of the father of the deceased was not consistent and except that statement there is no other evidence to show as to what manner deceased was tortured or harassed in the matrimonial home by the accused husband or other members of the family. There is nothing in the evidence of these witnesses about any act of omission/or commission for alleging the subjecting cruelty to the victim. Hence it has been held that mere omnibus statement she was subjected to cruelty cannot be accepted for punishing the accused and hence it is contended that the period of marriage and demand and subjecting cruelty has not been established then conviction under Section 304B of Indian Penal Code has not been established. 9. Learned counsel for the State however contends that there is overwhelming evidence that marriage solemnised within seven years as apparent from evidence of father and brother of the victim. Further the evidence of mother of the deceased that marriage solemnised eleven years back is apparently absurd. It has further been contended that there is sufficient evidence and case of the prosecution itself that within two years of marriage of the victim, the victim was subjected to cruelty for non-fulfilment of demand of motorcycle. Further the evidence of mother of the deceased that marriage solemnised eleven years back is apparently absurd. It has further been contended that there is sufficient evidence and case of the prosecution itself that within two years of marriage of the victim, the victim was subjected to cruelty for non-fulfilment of demand of motorcycle. There is specific evidence that she was assaulted for non-fulfilment of demand of motorcycle and there is specific evidence that assault was made even on the date of occurrence and she was not allowed to enter into her matrimonial house for non-fulfilment of demand is itself a cruelty. Further there is specific evidence of the father of the victim that victim was dragged and catch hold of her hair by the husband and he dragged her out of the house and hence there is sufficient evidence that marriage solemnised within seven years and the victim was subjected to cruelty for non-fulfilment of demand and evidence of the doctor itself suggests that death was by burnt injury and further evidence of the I.O. that near the dead body five liters jerking of kerosene oil was found and smell of kerosene oil coming out from the dead body by burn injury and the trial court hold that death of the deceased was in suspicious circumstance to record the conviction. 10. Having regard to the respective submissions, I proceed to consider the evidence of witnesses in the light of submission made by the parties. 11. The prosecution case as alleged in the First Information Report that marriage solemnised in the February, 2009. Further the case of prosecution that after the marriage of Anju Gupta her in-laws demanded motorcycle and when demand was not fulfilled the victim Anju Gupta was subjected to cruelty by Asharfi Gupta and his mother and other family members. Further case is that on 05.12.2011, the victim came to the house of her father and she disclosed about the occurrence regarding demand and subjecting to cruelty. Further case is that on 05.12.2011, the victim came to the house of her father and she disclosed about the occurrence regarding demand and subjecting to cruelty. Further case is that on 07.12.2011 when she went to her sasural she was not allowed to enter into her matrimonial house and it was intimated that till demand was not fulfilled she will not be kept in matrimonial house on getting such intimation the informant went there to satisfy them for meeting the demand or to make them understand then he returned back and on the next day they learnt about death of the victim. The witnesses supported the prosecution case. P.W. 1 is Anand Kumar Gupta, the brother of the victim in his evidence had supported the prosecution case that marriage of Anju Gupta was solemnised in February, 2009. Further he has to depose that there was demand of motorcycle which was not fulfilled and so Anju Gupta was subjected to cruelty. Further Anju Gupta came to Maharam Puja in December, 2011. Thereafter, Panchdeo Gupta the brother of appellant Asharfi Gupta took Anju with him but mother of Asharfi and Asharfi the appellant and his sister were not allowing her to enter into the house and when they learnt the fact that she was not being allowed to enter the matrimonial home they went there the matrimonial home for making them understand and in the same night Anju Devi was died by burn injury and in the morning they learnt and went there. There evidence of the informant that when he reached there the victim tried to enter into the house then her husband catch hold of the hair of the victim and throw her out of verandah by dragging her out of the matrimonial house and the same night she was done to death. 12. However, criticism has been made regarding his evidence in paragraph 6 of his cross-examination where he had deposed that victim Anju Devi used to go with Asharfi happily and there was love affair between them and this witness has stated that he used to get her reach at her matrimonial home. 12. However, criticism has been made regarding his evidence in paragraph 6 of his cross-examination where he had deposed that victim Anju Devi used to go with Asharfi happily and there was love affair between them and this witness has stated that he used to get her reach at her matrimonial home. In his cross-examination he had stated that he had not stated before the Daroga that Asharfi, his mother and sister used to demand for motorcycle and used to subject her to cruelty or when he used to go to the house of Anju then Anju used to disclose about subjecting cruelty for non-fulfillment of demand. 13. P.W. 2 is the doctor who conducted the post mortem examination the victim and found that 96% burn injury on total body surface area and smell of kerosene oil and cause of death due to shock caused by thermal burn. Hence, the evidence of the doctor it can well be inferred that death of the victim is in suspicious circumstance. P.W. 3 Chandrawati Devi, is Aunt and her evidence is only relevant that Anju Devi came to her house on 5th December and went on 7th December along with Panchdeo Gupta her Dewar to her sasural and then information received on telephone that Nanand, mother-in-law of Anju were not allowing her to enter into the house and then Harendra Prasad Gupta and Anand Kumar Gupta went to sasural of the victim. Further in her evidence she specifically stated that she had never been went to sasural of her niece and her evidence is only to the extent that she learnt about the occurrence. P.W. 4, Binda Devi, the mother of Anju Devi. However, emphasis has been given to her evidence regarding challenging the age of marriage of the victim within seven years and this witness being mother of the victim had stated that while Anju was eleven years old her marriage was solemnised. However, her evidence itself regarding age is confusing and not relying as she has given her age in her defence as 30 years old but the Presiding Officer of the Court had assessed her age as 50 years. However, her evidence itself regarding age is confusing and not relying as she has given her age in her defence as 30 years old but the Presiding Officer of the Court had assessed her age as 50 years. She had stated in her examination that her marriage was solemnised about 20 years back and gave birth Anju after five years of her marriage then as per her evidence the age of Anju on 7th November, 2013 i.e. on the death of victim is only 15 years whereas the doctor who conducted the post mortem examination of the victim on 08.12.2011 assessed the age of the deceased as 22 years. Hence on the evidence of this witness it is not proper to rely that marriage of Anju was solemnised while she was eleven years old as her evidence regarding the age of the victim appears to be very rustic and not reliable to be believed as apparently the age of the mother of the victim as 30 years on the date of her deposition on 07.12.2011 when age of Anju on the date of occurrence as 21 years and hence no relevant fact can be placed on the evidence regarding the age of the victim or time of occurrence. Though, she had come to depose that on getting information that victim had been done to death then she went there and found Anju was in burnt state with hand tied then she got unconscious then her evidence is neither relevant regarding demand and subjecting to cruelty. Her evidence regarding time of marriage of the victim is also not reliable to be accepted either in favour of her estimation of the age and time not worthy of reliance as she appears to be rustic. However, P.W. 5 is the informant and he had supported the prosecution case that marriage of the victim was solemnised in February, 2009. After marriage, the husband and in-laws of her daughter kept her well five to seven months. Thereafter, there was allegation of assault. The victim specifically stated that after five-seven months, her in-laws used to assault her and they had taken her jewellery and always used to assault her for non-fulfilment of demand of motorcycle. After marriage, the husband and in-laws of her daughter kept her well five to seven months. Thereafter, there was allegation of assault. The victim specifically stated that after five-seven months, her in-laws used to assault her and they had taken her jewellery and always used to assault her for non-fulfilment of demand of motorcycle. The informant has stated that his daughter always used to disclose on telephone even when he used to go to her sasural the victim asked to give motorcycle as demand either they will be killed her. The informant has stated that Anju came to her naihar on 5th December, 2011 and thereafter, on 7th December, 2011, Panchdeo Gupta, the brother of the Asharfi took her to sasural. Then Asharfi Gupta did not allow her to enter into the house and when his daughter informed him on telephone, he along with nephew Anand Kumar Gupta went there at 4.00 P.M. and on seeing him, her daughter tried to enter into the house but Asharfi Gupta catch hold of hair of his daughter and dragged her on the verandah to get her out and in the meantime four-five persons collected there to enter into the house. However, in cross-examination, suggestion has been given that marriage of the victim was solemnised at the age of 12 years concealing the fact that she had written love letters and this witness had denied the suggestion that he has recovered any love letter when she was a student of Class-X, except suggestion of love letter there is no material to suggest that victim had love affairs with someone or committed suicide for said love affairs and she was not willing to live in the matrimonial house. 14. However, it is true that going into the entire evidence, the marriage of the victim was solemnised in the year 2009 as per First Information Report and there was demand and subjecting to cruelty for non-fulfilment of demand of motorcycle and victim disclosed about subjecting to cruelty for non-fulfilment of demand of motorcycle. Further when the victim went to her sasural on 07.12.2011 she was not allowed to enter into her matrimonial house and the matter was intimated to the informant. The informant rushed there. Hence there is clear evidence regarding not allowing the victim to enter into her matrimonial house, but on seeing the informant, the victim tried to enter her matrimonial house. The informant rushed there. Hence there is clear evidence regarding not allowing the victim to enter into her matrimonial house, but on seeing the informant, the victim tried to enter her matrimonial house. However, this fact was not mentioned in the First Information Report that victim was dragged by her husband by catching hold of her hair when the she reached her sasural. In the First Information Report, there was allegation of demand and subjecting to cruelty for non-fulfilment of demand of motorcycle. Further the victim came to her Naihar on 5th December, 2011, she disclosed about demand and cruelty and when she returned on 07.12.2011 she was not allowed to enter into her matrimonial house for non-fulfilment of demand and such act for not allowing the victim to enter into her matrimonial house for non-fulfilment of demand itself amounts to cruelty. However, this part of evidence that victim was not allowing to enter into her matrimonial house find mentioned in the First Information Report and on receiving such information, the informant rushed to sasural of the victim then victim tried to enter into the house and she was dragged out of the house. However, this evidence having been mentioned in the First Information Report and hence it may not be amounts for omission or to question of contradiction. However, this fact does not mention how cruelty permeated. Further the victim tried to enter into her matrimonial house and not allow her to enter the matrimonial house, it cannot be said to be contradiction and this explanation given minutes details of the occurrence. However, having mentioned in minutes details of the occurrence does not amount to contradiction as there is specific assertion regarding manner in which cruelty has been permeated. It is true that this fact has not been corroborated in the evidence of witnesses, but the fact that victim was not allowing to enter into her matrimonial house and she was standing and matter was reported to the informant on telephone then informant along with P.W. 1 went to sasural of the victim and both have supported the prosecution case that victim was not allowing to enter her matrimonial house for the reason of non-fulfilment of demand and when they went there to make them understand. Further the informant himself stated that after he went there the victim was dragged out of the house then two-four persons collected there then she entered into her matrimonial house. 15. Hence, coming to the evidence of the prosecution that prosecution has been able to establish that marriage of the victim was solemnised in the year 2009 and there was allegation of demand and subjected to her cruelty and victim used to disclose about the fact to her father. Further, just after the occurrence the victim was not allowed to enter her matrimonial house for non-fulfilment of demand and she was dragged out by her husband itself amounts to subject to cruelty by her husband just before the occurrence even on the same day in the night she was done to death. 16. Regard being had to the fact, I find and hold that prosecution has been able to prove the charge for offence under Section 304B of Indian Penal Code against the husband Asharfi Gupta. 17. So far mother of the appellant Shanti Devi is concerned, there is no specific allegation regarding subjecting to cruelty to the victim or demand against this appellant as there is general and omnibus allegation that she was not allowing the victim to enter into her matrimonial house. However, there is assertion that Asharfi Gupta dragged the victim by catching hold of her hair when the victim tried to enter into the house. Hence the allegation against Shanti Devi, the mother of the appellant is general and omnibus. However, learned counsel for the appellants relied upon decision reported in 2015 Criminal Law Journal 4548 not applicable to the facts and circumstance of the case as in the present case there is specific allegation of assault and dragging out of the victim. However, the matter reported in 2015 Criminal Law Journal 4548, there was only allegation that victim was physically subjected to cruelty and there is no specific act of commission or omission or caused has been mentioned. 18. Having regard to the fact I find and hold that benefit of doubt be given to Shanti Devi, hence, conviction and sentence recorded by the trial court against Shanti Devi is hereby set aside. 19. So far at the end of justice shall meet by sentencing the appellant Asharfi Gupta to undergo rigorous imprisonment reduced from ten years to seven years. 20. 19. So far at the end of justice shall meet by sentencing the appellant Asharfi Gupta to undergo rigorous imprisonment reduced from ten years to seven years. 20. Accordingly, the appeal is dismissed with modification in sentence.