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Biriu Sah, Laddu Sah, Baiju Sah, Parmila Devi v/s The State of Bihar


Company & Directors' Information:- DEVI CORPORATION PRIVATE LIMITED [Active] CIN = U16000AP2011PTC076133

    Decided On, 16 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH & THE HONOURABLE MR. JUSTICE DHARNIDHAR JHA

    For the Appearing Parties: ----------



Judgment Text

SHIVA KIRTI SINGH AND DHARNIDHAR JHA, JJ.

(1.) Learned counsel for the appellants has produced before this.court the original death certificate dated 27-12-2005 which shows that appellant No. 4. Bindeshwar Sah died on 13-12-2005. A photo-stat copy of the aforesaid death certificate issued by District Board. Nawadah be kept on record and let this appeal abate in respect of appellant No. 4 Bindeshwar Sah. In respect of appellant No. 5. Pramila Devi, learned Counsel for the appellants is permitted to correct the name of her husband as Bindeshwar Sah in place of Muneshwar Sah.

(2.) This appeal is directed against the judgment and order dated 19-2-2002 passed by learned Additional Sessions Judge, II. Nawadah in Sessions Trial No. 132/2001 Trial No. 98 of 2001 (Arising out of Nawadah P.S. Case No. 242 of 2000. All the appellants have been convicted under Sections 304-B/34, 201/34 and Section 498-A of the I. P.C. For offence under Section 304-B/34 I.P.C. they have been awarded rigorous imprisonment for life, for the offence under Section 201/34 I.P.C. and also for the offence under Section 498-A of the I.P.C. they have been awarded rigorous imprisonment for three veers each for the aforesaid offences.

(3.) The prosecution case according to Farebeat (Exhibit-2) of P.W.9. the informant. Shvam Babu Sah. is to the effect that the deceased his daughter Sandhva Devi was married with appellant No. 1. Biriu Sah in the veer 1995 as per Hindu rites. He had made gift of usual articles and Rs. 5100/- in cash but soon after the marriage appellant no. 1, his father. Bindeshwar Sah and mother Parmila Devi (original

appellant no. 5) came to the Ouarter of the informant at Biharsharif and made a demand of Rs. 15.000/- on the plea that money was needed for opening a shop. The informant failed to meet the demand and thereafter whenever he visited his daughter the deceased at Nawadah the demand was reiterated by accused Lakhendra Sah. Baiiu Sah (appellant no. 3) brothers of Biriu Sah and their wives, whose names were not known to the informant and also by another vounger brother of Biriu Sah namelv Laddu Sah (appellant no. 2). His daugher Sandhva Devi used to inform him that all the persons were torturing her because of non-payment of money and that the informant should any how arrange the money and pay them otherwise she may be killed. Pramila Devi the mother-in-law allegedly had taken away the ornaments of Sandhya Devi. Whenever Sandhya Devi used to come to Biharsharif she informed her mother Lalita Devi regarding torture meted to her by her in-laws. On 2-10-2000 at 9 P.M. the informant received information from one Jugal Sah. maternal uncle of appellant Biriu Sah and also a distant relation of informant that Sandhva Devi has been killed and her dead body has been thrown in river Khuri. When the informant came to the house of; in-laws of his daughter then he found that all of them had left the house. About the dead body he could gather information that it was thrown in the river till the previous day but in the previous night it had been concealed somewhere in the sand of the river. The occurrence of killing had allegedly taken place in the night of 30th September 2000.

(4.) After recording the fardbeyan on 3-10-2000 and after lodging the F.I.R. on the same date the police recovered the dead body from under the sand near the river and prepared the inquest report. The dead body was sent for post-mortem examination and after completing the investigation the police submitted charge-sheet against the accused persons who were tried by the impugned judgment and order leading to their conviction and punishment as noted above.

(5.) The defence of the accused persons appears to be complete denial of demand of dowry and any kind of torture to the victim and they have pleaded that they are innocent and have been falsely implicated.

(6.) The prosecution in order to prove its case has examined altogether 15 witnesses. The first six witnesses P.W.1 Dharmveer Pandit. P.W.2 Ram Briksh Choudharv. P.W.3 Jugal Sao. P.W.4 Ashok Sah. P.W.5. Lal Babu Sah and P.W.6 Manti Devi have turned hostile and are of no help to the prosecution. P.W.7. Indra Mohan Sah and P.W.8 Vinita Kumari are brother and sister respectively of the deceased whose deposition is also of no help to the prosecution. They are minors aged 9 and 10 vears who have admitted that they were never examined by the police earlier. They have deposed only to the effect that deceased was married to appellant Biriu sah but have not claimed knowledge of any other relevant materials. P.W.9. Shyam Babu Sahis the informant. P.W.10 Surya Mohan Sah is a brother of the deceased who has tried to support the prosecution case by claiming to be witness of demand of dowry of Rs. 15.000/- by Biriu Sah and his mother. P.W.11 Chandra Mohan Sah is another brother of the deceased who has turned hostile. He has gone to the extent of stating that appellant Biriu Sah used to keep his sister properly and his sister had cordial relationship with his brother-in-law. Biriu Sah and her other in-laws. p.W.12. Kavita Kumari is another sister of the deceased who has deposed that on the date of Raksha Bandhan Sandhya had disclosed that Biriu Sah and his elder brother as well as vounger brother were demanding money and if it is not paid they may kill her but in cross-examination she has denied to have made any statement before the police. P.W.13. Lalita Devi is mother of the deceased who in cross-examination has given UP the entire prosecution case by stating that neither she has seen her daughter being assaulted nor the accused persons demanded dowry from her nor she ever gave any statement to the police.

(7.) P.W.14. Dr. Suniti Kumar held autopsy on the dead body of the deceased. He found no internal or external iniury and in order to ascertain the possible cause of death he preserved the viscera which was sent for chemical examination by Forensic Science Laboratory at Patna. The viscera report has been brought on record as Exhibit-5 and it shows that thimet was detected in the viscera and thimet is a organo phosphorus pesticide which is commonly used in the agriculture for killing pests and is highly poisonous. P.W.15. Nisar Ahmad is an Assistant Sub-Inspector of Police who was the Investigating Officer in this case.

(8.) The evidence of P.W.9. the informant and his son P.W.10 require to be noticed in some detail. According to P.W.9 the deceased was married to the appellant, Biriu Sah in the vear 1995 and she went to live with her in-laws and husband after second marriage (Duragaman) which was performed after one year. Thereafter she was treated well for two months and then she was subiected to torture by her husband and in-laws who were demanding Rs. 15.000/- by wav of dowry which could not be paid. She was being tortured by the in-laws and information of her death was received on 2-10-2000 from Jugal Sah. On 3-10-2000 the informant went to Nawadah and found that no member of the family of accused persons were present in the house. The persons in the neighbourhood informed him that dead body of his daughter was thrown near the cremation ghat. He failed to locate the dead body even after search and then he went to the police station and his Fardbevan was recorded by the A.S.I. After recording the fardbevan police went to the cremation gnat and in course of search the dead body was found from under sand. The dead body was sent for postmortem examination. In cross-examination he not only admits that he had not seen the dead body being concealed or the deceased being killed but has gone further to admit that he has never seen any assualt/torture being committed against his daughter and the accused persons had never made any demand of dowry from him. He further stated in cross-examination that what ever Jugal Sah told him on that basis he lodged the criminal case.

(9.) It has been earlier noticed that mother of the deceased P.W.13. Lalita Devi also did not support the demand of 1 dowry by stating in cross-examination that the accused persons have never demanded dowry from her. She claimed that this fact was told to her by her husband. She also admitted that she has made no such statement before the police. In this back-ground the evidence of P.W.10 has to be scrutinised because to counter the submission on behalf of the appellants that there is no evidence worth reliance in respect of demand of dowry or harassment and torture for that soon before the death of the deceased, learned counsel for the State has placed reliance upon statement of P.W.10 in paragraph-5. Surya Mohan Sah (P.W.10) has stated that deceased Sandhyawas his sister and that she was married with appellant Biriu Sah. He has further stated that relation of Biriu Sah with his sister was not good and he used to assault and abuse her. He has also stated that Biriu Sah. appellant no. 1 had made a demand of Rs. 15.000/- from his mother and father. In cross-examination in paragraph-5 of his deposition he has stated that he had never seen the deceased being tortured but claimed that Rs. 15.000/- was demanded in his presence at his hguse but the money was not paid. He further stated that he does not know the date when the demand of Rs. 15.000/- was made and there was no letter written by the deceased which could show that she was being tortured. It has already been noticed while discussina the evidence of P.W.9, the father of the deceased that he admitted in cross-examination in paraaraph-5 of his deposition that the accused persons had never made demand of dowry from him.

(10.) The offence under Section 304-B of the I.P.C. is a serious offence which warrants the court to draw certain presumptions in case a married woman meets with un-natural death within 7 vears of her marriage provided there was demand of dowry being made by the husband or his relations and for such demand the deceased was being subiected to cruelty or torture soon before the occurrence. In the present case the materials on record show that the deceased died within seven vears of marriage and her death was on account of poison which was found in the viscera report and hence she had met un-natural death. The issue falling for decision is whether on the basis of materials on record i.e. the oral evidence of close relations of the deceased which include her father mother and brother it can be found that soon before her death she was subiected to crueltv or harassment by the accused persons for or in connection with any demand, for dowry. The evidence of the material witnesses have already been noticed above and it is clear that a demand for dowry in order to be effected must be addressed to the parents of the victim. In this case the evidence of the father and mother of the victim do not permit us to come to the conclusion that the accused persons had made any demand for dowry from them. The statement of brother of the deceased (P.W.10) lacks material particulars as to the date, when the demand was made from his father and mother. It is difficult to rely upon his evidence for accepting the demand of dowry when his father and mother have made clear statements that no such demand was made from them. Hence it must be concluded that prosecution in this case has failed to prove that there was any demand for dowry for which the deceased could be subiected to cruelty or harassmen. On a careful scrutiny of the prosecution evidence on record it has to be found that there is no r

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eliable material even to show that soon before her death the deceased was subiected to cruelty or harassment. There is no documentary evidence such as letter etc. which could re-assure us regarding prosecution case that the deceased was subiected to cruelty or harassment by her husband or any of her relation for or in connection with any demand for dowry. (11.) There is admittedly no direct evidence in respect of death of the deceased as to how she could consume poison found in her viscera. There is no direct evidence as to who carried her dead body to cremation (that and how she was left there and kept under the sand. In such circumstances we are compelled to hold that the prosecution has failed to prove the charges against the appellants. Hence the impugned iudgment of conviction passed against them is set aside and the appellants are acquitted of all the charges. The appeal stands allowed. (12.) It appears that appellant no. 1 . Biriu Sah is still in custody. He should be released forthwith from jail custody if not wanted in any other case. It appears that other appellants i.e. appellant no. 2. Laddu Sah. appellant no. 3 Baiiu Sah and appellant no. 5. Parmila Devi are on bail. They shall stand discharged from the liabilities of their bail bonds.
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