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2019 DIGILAW 691 (JHR)

Manak Devi, wife of Tulsi Sahu v. State of Bihar

2019-03-11

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT : Per Shree Chandrashekhar, J. This criminal appeal was filed on behalf of three appellants; two have passed away and, accordingly, the appeal on their behalf has abated. 2. The sole surviving appellant namely, Sudarshan Sahu, husband of the victim-Yashoda Devi, has challenged the judgment of his conviction under section 307 and 498-A IPC and the order of sentence, both dated 03.12.1993 passed by the Additional Judicial Commissioner-VII, Ranchi in S.T. No. 367 of 1992. 3. By the order of sentence, the appellant no. 3 namely, Sudarshan Sahu has been awarded punishment of R.I for life for the offence punishable under section 307 IPC and R.I for three years for the offence punishable under section 498-A IPC; both the sentences are directed to run concurrently. 4. By an order dated 20.01.1994, the appellant no. 3 namely, Sudarshan Sahu has been granted bail. 5. Two fold submissions have been made on behalf of the appellant no. 3; (i) without recording a finding that the accused intended to or had knowledge that the act alleged would cause death for which he would be guilty of murder, conviction under section 307 IPC cannot be maintained, and (ii) the evidence of the prosecution witnesses read with the medical evidence throws considerable doubt on the prosecution's case and, therefore, the appellant no. 3 is entitled for the benefit of doubt. 6. The prosecution story narrated by the informant-Yashoda Devi in her ferdbeyan about the accused persons making demand of Rs. 10,000/-and assaulting her has been found true during the investigation and, accordingly, a charge-sheet was submitted for the offence under section 307 and section 498-A IPC against the accused persons. 7. The accused no. 1-Manak Devi was mother-in-law, the accused no. 2-Tulsi Sahu was father-in-law and the accused no. 3-Sudarshan Sahu is husband of the informant-Yashoda Devi. 8. The informant has alleged that about 3 years after her marriage with the accused-Sudarshan Sahu, the accused persons started harassing her in connection to demand of Rs. 10,000/-for construction of house. A panchayati was held on 25.04.1989 in which the accused persons had undertaken to keep the informant with dignity and not to harass her for money, however, they again started harassing her and on 30.06.1989 they assaulted her brutally. The informant was admitted in the Ranchi Medical College and Hospital on 01.07.1989 at about 16:00 hrs. with Bed-ticket No. 77. A panchayati was held on 25.04.1989 in which the accused persons had undertaken to keep the informant with dignity and not to harass her for money, however, they again started harassing her and on 30.06.1989 they assaulted her brutally. The informant was admitted in the Ranchi Medical College and Hospital on 01.07.1989 at about 16:00 hrs. with Bed-ticket No. 77. It is the prosecution's case that she has remained in the hospital for seven days. 9. During the trial, the prosecution has examined nine witnesses; the informant-Yashoda Devi has been examined as P.W. 1, her uncle-Sukhdeo Sahu has been examined as P.W. 2 and the Doctor who has prepared the injury report has been examined as P.W. 7. 10. The investigating officer has not been examined in this case. 11. On the basis of the evidence laid before him, the learned Sessions Judge has convicted the appellant no. 3 under section 307 IPC, however, the charge under section 307 IPC against other two accused persons has failed. All the accused persons were convicted for the offence under section 498-A IPC. 12. Mr. Hardeo Prasad Singh, the learned APP submits that it is not the quantity of evidence rather quality of the evidence which matters the most. Evidence of the informant-Yashoda Devi is consistent and it has been supported by P.W. 2 on all material aspects and while so, conviction of the appellant no. 3 for the offence under section 307 and 498-A IPC is well-founded. 13. In the first place, we intend to record that the accused persons have examined one defence witness namely, Lal Satya Narayan Nath Shahdeo-D.W. 1. However, in paragraph no. 7 of the judgment in S.T. No. 367 of 1992 the learned judge has recorded that no defence witness has been examined and there is no discussion on the defence evidence in the judgment in S.T. No. 367 of 1992. 14. The first distinction between the offence punishable under section 307 IPC and Section 302 IPC is that the offence under section 307 IPC is not culpable homicide; the victim finally survives. Secondly, it is not necessary that to constitute an offence under section 307 IPC hurt must be caused to the victim. What is required by the prosecution to establish is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of Maharashtra Vs. Secondly, it is not necessary that to constitute an offence under section 307 IPC hurt must be caused to the victim. What is required by the prosecution to establish is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of Maharashtra Vs. Kashirao” reported in (2003) 10 SCC 434 , the Supreme Court has observed as under; 20. .......”The essential ingredients required to be proved in the case of an offence under section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 15. The informant-P.W.1 has deposed that her husband-appellant no. 3 gave her tangi blow from the back of the tangi. The Doctor-P.W. 7 has found the following injuries on the person of the informant-Yashoda Devi (i) Lacerated wound on the dorsal aspect of left forearm in its middle measuring 3' x ½' bone deep (ii) Abrasion 1'' x 1'' over left side of fore-head. 16. In his cross-examination, the Doctor-P.W. 7 has admitted that injury no. 1 can be caused by falling on the hard surface and injury no. 2 can be caused due to fall on the edge of the chowki. To make the story worse, the informant in her ferdbeyan has alleged that the first tangi blow given by her husband was warded-off by her but it caused injury on her left arm. No such injury has been found by P.W. 7 on her left arm. 2 can be caused due to fall on the edge of the chowki. To make the story worse, the informant in her ferdbeyan has alleged that the first tangi blow given by her husband was warded-off by her but it caused injury on her left arm. No such injury has been found by P.W. 7 on her left arm. The story of other two accused persons assaulting the informant has not been established, rather not found true by the learned Sessions Judge on account of which the other two accused persons have been acquitted of the criminal charge under section 307 IPC framed against them. These facts indicate that the prosecution has suppressed the real version of the occurrence. 17. An injury caused from the back-side of the tangi and, that too, on a non-vital part of the body; there is no rib injury found on the person of the victim, would not lead to an inference that the accused had requisite intention or knowledge that death would be a probable result of the assault. The evidence led by the prosecution if accepted on its face value, in our opinion, would constitute offence under section 324 IPC and not attract the offence under section 307 IPC [refer, “Jai Narain Mishra Vs. State of Bihar” report in (1971) 3 SCC 762 (para-12)]. 18. Accordingly, conviction of the appellant no. 3 for the offence under section 307 IPC is converted under section 324 IPC. 19. In so far as his conviction for the offence under section 498-A IPC is concerned, we find that it is the prosecution's own case that in the first three years of the marriage there was no demand of dowry and the demand of Rs. 10,000/-has been made from the informant about 8 years after her marriage. The demand of Rs. 10,000/-for construction of house was a demand for dowry has not been specifically spoken by the prosecution witnesses. The trial judge has found that in the panchayati-paper there is no whisper of demand of money and assault by the accused no. 3. The defence version is that the informant on account of her mental state used to leave her matrimonial home frequently. The defence witness-D.W. 1 has also stated that the informant did not stay in her matrimonial home and that was the reason a panchayati was convened. 20. 3. The defence version is that the informant on account of her mental state used to leave her matrimonial home frequently. The defence witness-D.W. 1 has also stated that the informant did not stay in her matrimonial home and that was the reason a panchayati was convened. 20. It is a well-settled proposition in law that evidence of the prosecution as well as the defence has to be tested on the same yardstick and with the same standard. The defence story of the informant-Yashoda Devi not staying with her husband in her matrimonial home, in view of the evidence laid in S.T. No. 367 of 1992, probablises the defence story. 21. We find that ferdbeyan of the informant was recorded on 01.07.1989, however, the First Information Report was registered on 06.08.1989. The date when her ferdbeyan has been recorded has been affirmed by the informant in her evidence in the Court. In fact, it is the specific case of the prosecution that the informant was admitted at RMCH, Ranchi with Bed-ticket No. 77 on 01.07.1989 where her statement has been recorded by the Officer Incharge on the basis of which Ratu P.S Case No. 99 of 1989 has been registered against the accused persons for the offences under section 324, 307 and 498-A IPC. But, the prosecution has failed to explain the delay of more than one month in registration of the First Information Report. 22. We further find that uncle of the informant-P.W. 2, who claims himself eye-witness, has admitted during his cross-examination that when the informant was assaulted by the accused persons he was not present there (para-14) and, in fact, he visited her house after hearing the news. Father of the informant-P.W. 3, her mother-P.W. 4 and her brother P.W. 6 are hearsay witnesses. The prosecution witness-Dhanu Sao-P.W. 5 has not supported the prosecution case and he has been declared hostile. We further find that the accused persons have suffered prejudice on account of non-examination of the investigating officer, in as much as, the nature of injuries found on the person of the informant by the Doctor could not be verified from the investigating officer. The controversy on the discharge summary issued by RMCH and delay in lodging the First Information Report also remained unresolved in absence of the investigating officer during the trial. 23. The controversy on the discharge summary issued by RMCH and delay in lodging the First Information Report also remained unresolved in absence of the investigating officer during the trial. 23. Having examined the record of the case and considered the rival submissions, we are of the opinion that the appellant no. 3 is entitled for benefit of doubt and his conviction for the offence under section 498-A IPC is not sustainable. The learned Sessions Judge has ignored the vital contradictions in the prosecution's case on demand of dowry and the evidence of D.W. 1. 24. Accordingly, conviction of the appellant no. 3 for the offence punishable under section 498-A IPC is set-aside. 25. On the question of sentence for the offence under section 324 IPC, in view of the fact that it is about 30 years when a First Information Report was lodged and the appellant no. 3 was granted bail by this Court about 25 years back and that serious prejudice was caused to him during his examination under section 313 Cr.P.C., the appellant no. 3 is awarded sentence of R.I for three months with fine of Rs. 25,000/-. 26. We are informed that the appellant no. 3 has already undergone R.I for more than three months and, accordingly, on deposit of fine of Rs. 25,000/-within six weeks a certified copy of this order is made available to him, he shall stand discharged of the liability of his bail-bonds. In default of payment of fine, he shall undergo R.I for one month, for which his bail-bonds shall be cancelled and he shall be taken into custody for serving the sentence. 27. In the result, Criminal Appeal (DB) No. 199 of 1993(R) is partly allowed and the order of conviction and sentence of the appellant no. 3 passed in S.T. No. 367 of 1992 are modified, to the above extent. 28. Let the lower-court records be transmitted to the court concerned, forthwith.