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2018 DIGILAW 998 (JHR)

Baijnath Sao v. State of Jharkhand

2018-05-03

B.B.MANGALMURTI, H.C.MISHRA

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JUDGMENT : Heard learned amicus curiae appointed by this Court for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 13th July, 2005 and Order of sentence dated 15th July, 2005, passed by the learned Additional Sessions Judge, F.T.C., Koderma, in S.T. No. 79 of 1993, whereby, the appellant, who is husband of the deceased lady and the father of two deceased kids, has been found guilty and convicted for the offences under Sections 304-B, 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs.5,000/-for the offence under Section 302 of the Indian Penal Code, R.I. for seven for the offence under Section 304-B of the Indian Penal Code, and R.I. for three years and fine of Rs.1000/-for the offence under Section 201 of the Indian Penal Code, and all the sentences were directed to run concurrently. It may be stated that the other family members of the appellant, who had also faced the trial along with the appellant, have been acquitted of the charges. 3. The case relates to the alleged dowry death of the wife of the appellant and the alleged murder of two kids of the appellant, whose dead bodies were found in a well on 11.02.1992. A written report was given about the occurrence by the informant Mangar Sao, who is the father of the deceased lady, on 17.02.1992, at the Koderma Police Station, stating therein that his daughter Manju Devi was married to the accused Baijnath Sao about six years prior to the occurrence, and she was being subjected to cruelty and torture for demand of dowry. The deceased had two sons, one aged about four years and the other aged about six months. He has alleged that in the night of 10.02.1992, his son-in-law and his family members had committed the murder of his daughter and her both sons by drowning in the well. Upon getting the news, the informant came to the in-laws' village of his daughter and the dead bodies were taken out of the well in the presence of Sarpanch. He has stated that he gathered the information in the village that the accused persons had committed the murder of his daughter and her two sons by drowning in the well. Upon getting the news, the informant came to the in-laws' village of his daughter and the dead bodies were taken out of the well in the presence of Sarpanch. He has stated that he gathered the information in the village that the accused persons had committed the murder of his daughter and her two sons by drowning in the well. On the basis of the written information, Koderma P.S. Case No.42 of 1992, corresponding to G.R. No.42 of 1992, was instituted for the offences under Sections 304-B and 201 of the Indian Penal Code, against the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 304-B, 302 and 201 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, six witnesses were examined by the prosecution. Though the Doctor conducting the post-mortem examination on the dead bodies of the deceased has been examined in the case, but the I.O. had not been examined. It also appears from the record that informant had also not been examined, as he had died. 5. The prosecution case is supported by the brother of the deceased lady, P.W.-3 Mahendra Prasad Sao. While giving his deposition, he had disclosed that he is the son of Late Mangar Sao, which shows that the informant had died. This witness has stated that the occurrence had taken place on 17.02.1992. He has stated that Manju Devi was his sister who was married to Baijnath Sao about six years prior to the occurrence, and she was being subjected to cruelty and torture for demand of dowry at her in-laws' place. From time to time, some money was also given to them, but her husband and other family members killed her and put the dead body in the well. Her two sons were also put in the well, who died. He has stated that after getting the information about the occurrence, he had gone to the in-laws' place of his sister, but by that time, the dead bodies had been cremated. Her two sons were also put in the well, who died. He has stated that after getting the information about the occurrence, he had gone to the in-laws' place of his sister, but by that time, the dead bodies had been cremated. In his cross-examination, he has admitted that the occurrence had not taken place in his presence and at the time of occurrence he was at Kolkata and he had returned back after 10-15 days. 6. P.W.-1 Ragho Mehta and P.W.-2 Babu Lal Sao are the co-villagers of the appellant and they have stated that the deceased had fallen in the well due to which they died. Both of them have stated that the deceased lady had good relationship with her husband. 7. P.W.-4 Devendra Kumar Pandit and P.W.-5 Ravindra Yadav are only formal witnesses. P.W.-5 has proved the signature of the informant on the fardbeyan, which was marked Ext.1. 8. P.W.-6 is Dr. Ranjeet Kr. Jamaiyar, who had conducted the post-mortem examinations on the dead bodies on 11.02.1992. He has proved the fact that all the three deceased had died due to asphyxia as a result of drowning and there was no external injury on either of the deceased. This witness has proved the post-mortem reports to be in his pen and signature, which were marked exhibits in the case. 9. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial Court below for the offences as aforesaid, and the other family members of the appellant have been acquitted by the Trial Court below. 10. Learned amicus curiae arguing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution case is supported only by the brother of the deceased lady, namely, P.W.-3 Mahendra Prasad Sao, and there is nothing in his evidence to show that soon before her death, the deceased was being subjected to cruelty and torture for demand of dowry. It is submitted that there was no injury on the dead bodies and the cause of death of all the three deceased were found to be drowning only. It is submitted that there was no injury on the dead bodies and the cause of death of all the three deceased were found to be drowning only. It is further submitted by learned amicus curie that even though the informant had come to know about the occurrence on the date of occurrence itself, and had seen the dead bodies on 11.02.1992, but the F.I.R. was lodged by him after an inordinate delay on 17.02.1992, for which there is no explanation at all, and it cannot be ruled out that the F.I.R. was lodged after giving afterthoughts about the death of his daughter and two grandchildren. Learned amicus curiae accordingly, submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below are fit to be set aside and it is a fit case in which the accused appellant be acquitted of the charges. 11. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-3 Mahendra Prasad Sao, the brother of the deceased who has stated that his sister was being subjected to cruelty and torture for demand of dowry. He has also proved that the occurrence had taken place within the period of seven years of the marriage and it is proved that the sister of P.W.-3 Mahendra Prasad Sao and her two sons were drowned to death. His evidence is fully corroborated by the medical evidence of P.W.-6 Dr. Ranjeet Kr. Jamaiyar, who has proved the fact that all the three deceased had died due to drowning. Learned counsel accordingly, submitted that the offence is clearly made out on the basis of the evidence brought on record, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 12. Having heard learned counsels for both the sides and upon going through the record, we find that even though the F.I.R. was lodged on 17.02.1992, but the post-mortem examination of the dead bodies had been done on 11.02.1992 itself, i.e., the date on which the dead bodies were found. 12. Having heard learned counsels for both the sides and upon going through the record, we find that even though the F.I.R. was lodged on 17.02.1992, but the post-mortem examination of the dead bodies had been done on 11.02.1992 itself, i.e., the date on which the dead bodies were found. As there is no material on the record to show as to how the post-mortem was conducted on 11.02.1992 itself, we looked into the case diary and find that one U.D. Case No. 1 of 1992 was instituted on the date of occurrence itself by the husband, who is the appellant herein, and the post-mortem examination of the dead bodies were conducted, in which the cause of death was found to be drowning only and there was no external or internal injury on the body of any of the deceased. The fact remains that the F.I.R. has been lodged after an inordinate delay on 17.02.1992 even though the dead bodies were seen by the informant on 11.02.1992 itself, and there is no explanation at all as to why this delay was caused in lodging the F.I.R. P.W.-3 Mahendra Prasad Sao, who is the brother of the deceased and who has come forward to support the prosecution case, appears to have no personal knowledge about the occurrence, as in his examination-in-chief, he has given the date of occurrence as 17.02.1992 which is not the fact, rather, the date of occurrence is 10.02.1992 and it was the F.I.R. that was lodged on 17.02.1992. He has also stated that at the time of occurrence he was at Kolkata and he returned back after 10-15 days, which does not appear to be the natural conduct of a brother, whose sister and her two kids would be killed by the husband and the in-laws. We are of the considered view that on the basis of the sole evidence of P.W.-3 Mahendra Prasad Sao, conviction of the accused cannot be sustained in the eyes of law, particularly, in view of the unexplained inordinate delay in lodging the F.I.R., and in the facts of this case, the appellant was entitled to be acquitted. 13. For the foregoing reasons, the impugned Judgment of conviction dated 13th July, 2005, and the Order of sentence dated 15th July, 2005, passed by the learned Additional Sessions Judge, F.T.C., Koderma, in S.T. No. 79 of 1993, are hereby, set aside. 13. For the foregoing reasons, the impugned Judgment of conviction dated 13th July, 2005, and the Order of sentence dated 15th July, 2005, passed by the learned Additional Sessions Judge, F.T.C., Koderma, in S.T. No. 79 of 1993, are hereby, set aside. Consequently, the appellant Baijnath Sao is found not guilty and he is acquitted of the charges. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 14. Before parting with this Judgment, we must record that we have been given able assistance by learned amicus curiae Shri Ashutosh Anand. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 15. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.