Bhawesh Pathak vs The State of Bihar

The sole appellant has preferred this appeal against the Judgment of conviction and Order of sentence dated 26.06.1995 passed in Sessions Trial No.343 of 1993/154 of 1993, whereby the court of the 5th Additional Sessions Judge, Samastipur, convicted the sole appellant under Section 304(B) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life but acquitted him for the charges under Sections 498(A), 201 and 302 of the Indian Penal Code. By the said Judgment, other three accused, who were facing trial with the appellant, have been acquitted of the charges under Sections 498(A), 201, 302 and 304(B) of the Indian Penal Code.

In brief, the prosecution case is that the Jha (P.W.4) gave his written report dated 13.04.1993 (Ext.3) before the Officer Incharge of Dalsing Sarai Police Station, to the effect that he had performed the marriage of his daughter Manju Devi with Awadhesh Pathak, son of Sachchidanand Pathak, resident of village-Aasinchak, P.S. Dalsingsarai, District-Samastipur before six years according to Hindu Customs. At the time of marriage, his son-in-law Awadhesh Pathak, his younger brother Bhawesh Pathak (appellant) were rigid on the demand of the motorcycle and five Bhar gold but he did not fulfill the said demand, due to that reason, they became annoyed. His son-in-law, after staying only five days at his house, returned to his house and message was sent by him that unless the demand will be fulfilled, remarriage would not be performed. After some days, the informant Bagish Jha (P.W.4) sent his son Devendra Jha (P.W.3) for making request to fix the date of remarriage of his daughter to her matrimonial house. His son Devendra Jha (P.W.3) returned to house and informed that his son-in-law, his mother Sago Devi and his brother Bhawesh Pathak (appellant) told that their house is of ?Phush? and unless the ho use would be constructed, the date of remar riage would not be fixed and also asked to help for constructing the house making demand of Rs.15000/-. The informant Bagish Jha (P.W.4), anyhow, managed Rs.12000/- and sent the same through his son Devendra Jha (P.W.3). Thereafter, his son-in-law Awadhesh Pathak started to construct the house. His another son Laxmi Kant Jha (not examined), who was in service of C.R.P., sent the money through money order and the bamboos and the other materials for constructing the house. Thereafter, his son-in-law Awadhesh Pathak took his daughter Manju Devi in Bidai in Duragaman. While the daughter of the informant was kept in her sasural for some days properly but, thereafter, demand of motorcycle and five Bhar gold was made by sasural people on which his daughter replied that money has already been paid by her father and brother and her father and brother is not in position to fulfill the further demand. Thereafter, his daughter was being tortured and assaulted by her husband, brother-in-law and mother-inlaw. In the meantime, his son Ratnesh Jha (P.W.2) went to the sasural of his sister but he was not permitted to meet to his sister but on repeated requests, he was permitted to meet to his sister, then his sister narrated him about her torturement, then his son Ratnesh Jha (P.W.2) returned to house with his daughter on 15.05.1990 as Bhawesh Pathak (appellant) had given threatening to kill his daughter. When his daughter came to house then she narrated about torturement and causing assault to her. Thereafter, the informant kept his daughter and granddaughter at his house, while his sonin- law made repeated request for Bidai. In the month of Baishakh, his sonin- law came and asked for Bidai of his daughter to attend the Shradh Ceremony of his grandfather Srikant Pathak. On the repeated request of son-in-law, the informant (P.W.4) sent his daughter and granddaughter with his son-law Awadhesh Pathak on assurance that, in future, his daughter will be kept properly. On 05.04.1993, Devendra Jha (P.W.3), son of the informant, received the letter of Baleshwar Pathak (D.W.7), resident of sasural village of daughter of the informant, about mishappening with granddaughter of informant. Then Devendra Jha (P.W.3), son of the informant, went to the sasural house of his sister Manju Devi and saw that his brother-in-law Awadhesh Pathak was engaged in performing the Shradh Ceremony. When Devendra Jha (P.W.3) asked him about his sister Manju Devi then mother of Awadhesh Pathak started weeping saying that Manju Devi has died on 01.04.1993. Thereupon, his son Devendra Jha (P.W.3) became annoyed and raised suspicion about killing of his sister on which Bhawesh Pathak (appellant) gave threatening to kill him also. Thereafter, Devendra Jha (P.W.3) made query in the village, then came to know that Awadhesh Pathak, his brother Bhawesh Pathak (appellant) mother Sago Devi, Bhagwan Daie Devi, the wife of Bhawesh Pathak (appellant) killed Manju Devi and removed her dead body. Thereafter, Devendra Jha (P.W.3) returned to the house and informed to the family members. The further allegation of the informant (P.W.4) is that his son Devendra Jha (P.W.3) again went on 06.04.1993 to the sasural village of his sister Manju Devi and collected the villagers at Shiv Temple, where Ritu Kumari (P.W.5), the daughter of Manju Devi, was playing and before villagers, his son-in-law Awadhesh Pathak admitted his guilt in not giving information about the death of Manju Devi immediately.

On the basis of the aforesaid written report (Ext.3) of the informant Bagish Jha (P.W.4), Dalsing Sarai P.S. Case No.32 of 1993 was instituted on 13.04.1993 under Sections 498(A), 304(B) and 201/34 of the Indian Penal Code against Awadhesh Pathak, Bhawesh Pathak (appellant), Most. Sago and Bhagwan Daie Devi, the husband, brother-in-law, motherin- law and Gotani of the deceased Manju Devi, the daughter of the informant (P.W.4), and the investigation was handed over to the A.S.I. Ram Sharnagat Singh (P.W.6), who, after investigation, submitted the chargesheet on 31.07.1993 against the F.I.R. named accused under Sections 304(B), 498(A), 201 and 302 of the Indian Penal Code.

During trial, the prosecution examined altogether six witnesses in support of its case and also got exhibited several documents. On the other hand, the defence also examined 7 witnesses and got exhibited several documents. On the trend of cross-examination of the prosecution witnesses and the statements of the accused recorded under Section 313 of the Code of the Criminal Procedure, it appears that the defence of accused was that the deceased Manju Devi died due to illness and the information was given to the informant (P.W.4), the father of the deceased Manju Devi, but with an ulterior motive, the informant (P.W.4) lodged the false case implicating all the accused, named in the F.I.R.

P.W.1 Surendra Pathak is an Advocate Clerk, who has formally proved the formal F.I.R. as Ext.1.

P.W.2 Ratnesh Jha is the son of the informant (P.W.4) and the brother of the deceased Manju Devi. He has deposed in his evidence that the marriage of his sister Manju Devi was performed with Awadhesh Pathak in the year 1987. At the time of marriage, he was not at the house. After marriage, request was made for Duragaman to Awadhesh Pathak, his mother and brother Bhawesh Pathak (appellant) but they replied that their house is in dilapidated condition and they made demand of Rs.15000/- for construction of the house but his family paid Rs.12000/ - for the construction of the house and, thereafter, Duragaman of his sis ter Manju Devi was performed and she was taken in Bidai to her sasural. He further deposed that after three years of marriage, his sister was sent in Duragaman at her sasural and he also visited the sasural house of his sister. At that time, he came to know that the demand of motorcycle and gold was being made. After some days, all of sudden, on the instruction of Awadhesh Pathak, his brother Bhawesh Pathak (appellant) informed that his sister is ill and is in the hospital. Thereafter, he went to the hospital but he did not find his sister there, then he went to the house of Awadhesh Pathak and, on request, he was permitted to meet to his sister. Thereafter, he carried his sister and her minor daughter to his house. At that time, he saw the injury at the head of his sister. After sometime, the grandfather of Awadhesh Pathak died, then Awadhesh Pathak took to his sister in Bidai on the occasion of Shradh. After 4-5 days, he came to know that his sister has died. The said information was given by Baleshwar Pathak (P.W.7), resident of sasural village of his sister. Thereafter, his brother Devendra Jha (P.W.3) went to the house of his sister and when he returned from there then informed that his sister has died. Thereafter, he alongwith other villagers went to the sasural village of his sister, then came to know that his sister committed suicide by burning. In cross examination, this witness has stated that he is not in memory about time and occasions of meeting with his brother-in-law and sister. He had gone in Duragaman with his sister to her sasural and stayed there for about 3-4 days. He further stated that after Duragaman, his sister was alive about 3 years.

P.W.3, Devendra Jha is another son of the informant (P.W4) and the brother of the deceased. He has deposed in his evidence that the marriage of his sister Manju Devi was performed on 18.02.1987 with Awadhesh Pathak. Bhawesh Pathak (appellant) and Sago Devi are the younger brother and the mother of Awadhesh Pathak and Bhagwan Daie is the wife of Bhawesh Pathak (appellant). He further deposed that at the time of marriage, the demand of gold and motorcycle was made but the demand could not be fulfilled. Later on, information was received from the house of Awadhesh Pathak that unless demand of gold chain and motorcycle is fulfilled, his sister would not be taken in Duragaman. The mother of Awadhesh Pathak also informed that her house is in dilapidated condition and asked for help for the construction of the house and made demand of Rs.15000/- but his father handed over only Rs.12000/- to him for giving to Awadhesh Pathak then he went to the house of Awadhesh Pathak and gave him Rs.12000/-. At that time, bamboos and other materials were also sent to construct the house. Thereafter, his sister Manju Devi was sent in Bidai in Duragaman on 30.11.1989. At that time, his sister had 6-7 months baby in her lap. On 10.05.1990, his younger brother Ratnesh Jha (P.W.2) had gone to the house of his sister but, on much request, he was permitted to meet to his sister and when he came to his house then informed that Awadhesh Pathak has asked him to take Manju Devi in Bidai otherwise he will kill her. Due to that reason, he also took his sister Manju Devi and her minor daughter at his house. At that time, he saw the sign of assault on her body. Awadhesh Pathak, after the death of his grandfather Srikant Pathak, came at his house in 1992 in the month of Baishakh and made request to send his sister Manju Devi then on his assurance that she would not be ill-treated, she was sent in Bidai. Thereafter, on 05.04.1993, Baleshwar Pathak (D.W.7) sent a letter about the mis-happening with his Bhagini Ritu Kumari (P.W.5) and to come to sasural of his sister. Thereafter, he went at the sasural house of his sister, then he found his brother-in-law engaged in last rituals. Thereafter, he asked Awadhesh Pathak about his sister, thereupon he replied that his sister has died. On query made to the mother of Awadhesh Pathak, she started weeping on which he told that his sister has been killed, then Bhawesh Pathak (appellant) told that he has killed his sister and asked him to leave the village otherwise he would also be killed. Thereafter, he returned to the house and, again, went on 06.04.1993 with the villagers Shatrudhan Jha, Harishchandra Jha, Sri Narayan Jha, Keshav Jha and others at the sasural village of his sister where his Bhagini (P.W.5) was playing, then he took her in his lap and made query to her, then she replied that her uncle (appellant), father, grandmother and aunt pressed the neck of her mother. Thereafter, he returned to his house with his Bhagini Ritu Kumari (P.W.5).

P.W.4 Bagish Jha, who is the informant and is the father of the deceased Manju Devi, has deposed in his evidence that he had performed the marriage of his daughter Manju Devi in 1987 with the accused Awadhesh Pathak. At the time of marriage, Awadhedsh Pathak and his younger brother Bhawesh Pathak (appellant) made demand of motorcycle and cash Rs.15000/- but he did not provide the same and, on intervention of the mediator, the marriage was performed but his son-in-law after staying only five days at his house returned to his village and, thereafter, Awadhesh Pathak did not come to his house and started making demand of motorcycle and cash. His son Devendra Jha (P.W.3) went to the village of Awadhesh Pathak for fixing the date of Duragaman. When his son (P.W.3) returned then informed that Awadhesh Pathak and his family members are not ready for Duragaman on the pretext of dilapidated condition of the house and asked for help in constructing the house, making demand of Rs.15000/-. Thereafter, he sent Rs.12000/- through his son Devendra Jha (P.W.3) and also sent the bamboos and other materials for construction of the house. In the meantime, his daughter gave birth to a baby in the Sadar Hospital, Samastipur. Thereafter, in the year 1989, his daughter was taken in Bidai in Duragaman but she was being harassed. Thereafter, his daughter was taken in Bidai from her sasural and she narrated about making demand by her in-laws and torturement for the same and he also saw the sign of injury on the forehead of his daughter. Thereafter, his daughter and granddaughter used to reside at his house. After two years, his son-in-law Awadhesh Pathak came for the Bidai of his daughter to attend the Shradh ceremony of his grandfather Srikant Pathak, then on his assurance not to torture his daughter, his daughter and granddaughter were sent. Later on, Baleshwar Pathak (D.W.7), resident of the matrimonial village of his daughter, sent a letter to his son Devendra Jha (P.W.3). On receiving the letter, his son Devendra Jha (P.W.3) went to the sasural house of his sister, then saw his brother-in-law engaged in last rituals on which Devendra Jha (P.W.3) made query, then Awadhesh Pathak started weeping saying that Manju Devi has died. Thereafter, his son, Devendra Jha (P.W.3) returned to house and again went to the sas ural house of his sister alongwith his villagers and collected the villagers there, then Awadhesh Pathak admitted that he has committed mistake and his Bhagini Ritu Kumari (P.W.5) also told him that her father, uncle and grandmother killed her mother. Then his son Devendra Jha (P.W.3) returned to the house with his Bhagini Ritu Kumari (P.W.5). Thereafter, he sent written report on 13.04.1993 through his son to Dalsing Sarai Police Station and he proved the written report as Ext.3. In his cross examination, this witness further deposed that he had given the written report according to the information as given by his son (P.W.3) and he is not in a position to state whether he had stated about making demand of Rs.15000/ - by Awadhesh Pathak before the police or not.

P.W.5 Ritu Kumari is the daughter of the deceased Manju Devi. She disclosed her age 6 years at the time of her deposition and the court also assessed her age about 6 years at the time of recording her deposition on 22.09.1994. She has stated that quarrel had taken place with her mother and grandmother. Her grandmother and father called her uncle Bhawesh Pathak, who started to cause assault to her mother through lathi and her mother fell down. Thereafter, she started weeping, then she was taken by her grandmother to the shop, where she was provided biscuit. In the night, she was taken by her grandmother to the house and meal was served to her and she slept with her grandmother. Thereafter, her maternal uncle Devendra Jha (P.W.3) came alongwith several persons at temple where she was playing, then she narrated about the incident. Thereafter, she was taken by her maternal uncle at the house of her Nani. The name of her maternal uncle is Devendra Jha (P.W.3). She identified her uncle Bhawesh Pathak (appellant) in court. In cross examination, while she has stated that there are 10 fingers in her both hands but she showed her inability to disclose the number of days in a week, number of days in a month and the number of months in a year. She also stated that just after the death of her mother, she used to reside at the house of her maternal uncle. She was taken to her house by her maternal uncle just after the death of her mother. She has further stated in her cross examination that her mother used to prepare the meal separate. She has further stated in her cross examination at paragraph-5 that her mother was assaulted by her uncle (appellant) through lathi and on her cry, she came out from the house and found her mother weeping, then she also started weeping.

P.W.6 Ram Sharnagat Singh is the Investigating Officer of the case. He has stated that on 13.04.1993, he was posted as A.S.I. at Dalsing Sarai Police Station. On that day at about 03.00 P.M., Bagish Jha (P.W.4.) came with his written report and submitted the same on the basis of which Dalsingsarai P.S. Case No.32 of 1993 was instituted and the charge of investigation was handed over to him by S.I. Sri Polendra Singh, the Officer Incharge of Dalsing Sarai Police Station. Thereafter, he visited the place of the occurrence and recorded the evidence of the witnesses. On completion of investigation, he submitted the chargesheet against all the F.I.R. named accused.

From the evidence of P.W.2 Ratnesh Jha, P.W.3 Devendra Jha and P.W.4 Bagish Jha, who are brothers and father of the deceased Manju Devi, it is apparent that they have not stated in their evidence about mishandling or cruelty at the hands of the appellant to the deceased just before her death due to non fulfillment of the dowry demand. It also appears from the evidence of P.W.4 Bagish Jha, P.W.2 Ratnesh Jha and P.W.3 Devendra Jha, who are father and brothers of the deceased Manju Devi, that they received the information about the death of the deceased of Manju Devi on 05.04.1993 through the letter of Baleshwar Pathak (D.W.7) and P.W.3 Devendra Jha visited at the matrimonial house of the deceased on the instruction of his father, the informant (P.W.4) Bagish Jha, and returned on the same day feeling suspicion about the death of his deceased sister. On the next day, i.e., 06.04.1993, P.W.3 Devendra Jha alongwith his villagers went at the sasural village of his deceased sister Manju Devi and collected the villagers at the temple, where P.W.5 Ritu Kumari was playing and P.W.3 Devendra Jha took her in his lap and came to know from P.W.5 Ritu Kumari that her mother was killed by her fathter, grandmother, aunt and uncle (appellant) and on the same day, P.W.5 Ritu Kumari was taken by Devendra Jha (P.W.3) to his house. Thereafter, written report of the informant P.W.4 Bagish Jha was sent through P.W.3 Devendra Jha to the concerned police station on 13.04.1993 but it is not detailed in the F.I.R. that the deceased was killed by her husband, brother in-law, mother-in-law and sister-in-law. P.W.2 Ratnesh Jha has deposed in his evidence about committing suicide by his sister (deceased) by burn whereas P.W.3 Devendra Jha has stated in his evidence that his Bhagini (P.W.5) told him that his sister was killed by pressing the neck by the accused. P.W.4 Bagish Jha, who is the father of the deceased, in paragraph- 4 of his evidence has stated that his granddaughter divulged him that her mother was killed by her father, grandmother and uncle. P.W.5 Ritu Kumari has stated in her examination-in-chief that her mother was assaulted through lathi by this appellant but in her cross-examination at paragraph-5, she has stated that when her mother started crying, she came out from the house and saw her mother in weeping condition and then she also started weeping. This fact clearly indicates that she was not present at the time of causing assault to her mother. As such, there is contrary evidence about manner of causing injury to the deceased resulting her death. P.W.5 Ritu Kumari has stated her age before the trial court six years and the trial court also assessed her age about six years at the time of recording of her evidence. Accordingly, the age of P.W.5 was about 4 1/2 years on the date of the occurrence, i.e., 05.04.1993 but the trial court has not given the certificate at the time of recording the evidence of P.W.5 Ritu Kumari that she was able to understand the question and give the reply of the question and she is a competent witness to give the evidence. P.W.5 Ritu Kumari in her evidence did not reply to the questions about the number of the days in a week, number of days in a month and number of months in a year. As such, it would be unsafe to rely on the evidence of P.Ws.2, 3, 4 and 5 to hold the guilty to the appellant for the offence under Section 304(B) of the Indian Penal Code.

On the basis of the facts and circumstances of the case and the evidence, as discussed above, we are of the view that the prosecution has not been able to prove its case and charge under Section 304(B) of the Indian Penal Code against the appellant beyond all reasonable doubts and the appellant is entitled to get the benefit of doubt.

In the result, this criminal appeal is allowed. The Judgment of conviction and Order of sentence dated 26.06.1995 passed in Sessions Trial No.343 of 1993/154 of 1993 by the court of the 5th Additional Sessions Judge, Samastipur, is hereby set aside. The appel lant is acquitted of the charge under Section 304(B) of the Indian Penal Code. The appellant is on bail, therefore, he is discharged from the liabilities of his bail bonds.