AI Structured Summary
Not yet generated for this judgment
Judgment
All the above named appellants have been convicted for the offences punishable under Section 302/34 of the I.P.C. and ¾ of Dowry Prohibition
Act and accordingly, they have been sentenced to undergo rigorous imprisonment for life under Section 302/34 of the I.P.C., to undergo rigorous
imprisonment for one year under Section 3 of D.P. Act and to undergo rigorous imprisonment for one year under Section 4 of D.P. Act. All the
sentences were ordered to run concurrently.
It is pertinent to note here that one Nawal Yadav and Meera Kumari also stood charged for the offences punishable under Section 302/34 of the
I.P.C. and ¾ of Dowry Prohibition Act along with the appellants but above stated Nawal Yadav and Meera Kumari were acquitted of the charges
by the impugned judgment.
The appellants, being aggrieved by the impugned judgment of conviction and sentence order dated 24.02.1994 passed by learned 1st Additional
Sessions Judge, Madhepura in Sessions Case No. 65 of 1989, have preferred the present appeal.
PW-18, namely, Janardan Paswan, chowkidar of Murliganj police station, gave his ferdbeyan on 20.07.1987 at about 10:00 A.M. at Murliganj police
station before the officer in charge of concerned police station to this effect that in previous night at about 4:00 A.M., one Banke Yadav informed him
that one Nawal Yadav of Village Maharajganj and his parents burnt to death wife of Nawal Yadav. He further claimed that having received the
aforesaid information, he went to village Maharajganj where he met Sarpanch Domi Ram (PW-11), Mukhiya Chandeshwari Yadav, chowkidar
Nemani Paswan, chowkidar Mogi Paswan etc. The aforesaid persons told him that Nawal Yadav along with his parents burnt to death his wife. He
further claimed that he went to the house of Nawal Yadav where he saw dead body of the deceased lying in the house having burnt injuries. The dead
body was covered with cloth. He removed the cloth from the dead body and noticed burn injuries on whole body of the deceased. He further claimed
that Sarpanch and Mukhiya ordered him to go to police station and give information that Nawal Yadav committed the murder of his wife by putting
her on fire. He further claimed that marriage of deceased with Nawal Yadav had taken place seven years ago but there was some differences
between appellant Gajab Yadav and Krishna Ballabh Yadav, father of the deceased on the point of dowry and ten days prior to death of the deceased
a Panchayati was held between natal people of the deceased as well as appellants. He further claimed that on 10.07.1987 Nawal Yadav brought his
wife (deceased) to his home but subsequently, he burnt her to death.
On the basis of ferdbeyan of PW-18, Murliganj P.S. Case No. 188 of 1987 under Section 302/34 of the I.P.C. was registered against appellant
Gajab Yadav and Nawal Yadav.
PW-20 Abdul Raquibe took charge of investigation. He recorded the further statement of PW-18, inspected the place of occurrence, recorded the
statements of witnesses, sent the dead body for postmortem examination. In course of investigation, Section ¾ of Dowry Prohibition Act was
inserted and accordingly, on the order of Superintendent of Police he handed over charge of investigation to PW-21, Dwarika Prasad Singh, the then
Deputy Superintendent of Police, Madhepura.
PW-21 also went to the place of occurrence and after completion of investigation, he submitted charge sheet against the appellants and others.
The case was committed to the court of sessions in usual way and accordingly, appellants along with charge sheeted accused Nawal Yadav and
Meera Kumari were put on trial. Appellants and above stated two co-accused stood charged for the offences punishable under Sections 302/34,
304(B) of the I.P.C. and 4 of Dowry Prohibition Act whereas appellant Gabaj Yadav, Shiv Narayan Yadav and co-accused Nawal Yadav were
separately charged for the offence punishable under Section 3 of Dowry Prohibition Act. The appellants and others denied the charges and claimed to
be tried.
In order to prove the charges, prosecution examined, altogether, 22 prosecution witnesses and also got exhibited several documents. The statements
of appellants and others were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence and denied the prosecution story.
The defence also got examined altogether ten defence witnesses and also got exhibited some documents in support of their defence. From perusal of
statements recorded under Section 313 of the Cr.P.C., trends of cross examination of prosecution witnesses as well as statements of defence
witnesses coupled with documentary evidence adduced on behalf of the defence, it would appear that defence of appellants and other accused was
denial of prosecution story and it was specific stand of the defence that deceased committed suicide as she did not want to reside at her matrimonial
home.
The learned 1st Additional Sessions Judge having heard the parties and having evaluated the evidences available on the record came to conclusion
that prosecution failed to prove the charge framed under Section 304(B) of the I.P.C. as the marriage of deceased had not taken place within seven
years of her death rather marriage of deceased had taken place much prior to seven years of her death. However, the learned court below came to
conclusion that prosecution succeeded to prove charge under Section 302/34 of the I.P.C. and ¾ of Dowry Prohibition Act against the appellants but
failed to prove the aforesaid charges against co-accused Nawal Yadav and Meera Kumari.
Learned counsel appearing for the appellants assailed the impugned judgment arguing that the learned trial court failed to appreciate the evidences
available on the record in right perspective as a result of which the learned trial court came to wrong conclusion. She would further submit that PW-18
admitted in his ferdbeyan that he got information about the alleged occurrence from one Banke Yadav but the aforesaid Banke Yadav was not
examined and no explanation of non examination of aforesaid Banke Yadav was given by the prosecution. She would further submit that there are so
many contradictions in the statements of prosecution witnesses which make the prosecution witnesses unreliable. She would further submit that
admittedly, prosecution could not succeed to prove charge framed under Section 304 (B) of the I.P.C and furthermore, none had seen the actual killing
of the deceased and, therefore, the entire prosecution case was based upon circumstantial evidence. She would further submit that learned trial court
failed to take note of this fact that there was no chain of circumstances to prove the guilt of appellants without any hypothesis. She would further
submit that in course of investigation as well as trial, prosecution developed its story to this extent that before death deceased made her statement in
respect of her death before some prosecution witnesses. She would submit that the learned trial court although disbelieved the aforesaid claim of the
prosecution but without any material convicted the appellants. She would submit that impugned judgment is not liable to be sustained in the eye of law.
On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that in course
of trial, prosecution brought strong circumstantial evidences to prove the guilt of the appellants and, therefore, there is no need to interfere into the
impugned judgment of conviction and sentence order.
Having heard the above stated contentions of the parties, we went through the record along with lower court record. The only question arises for
determination as to whether the impugned judgment of conviction and sentence order are liable to be sustained or not.
As we have already noticed that the prosecution examined, altogether, 22 prosecution witnesses to prove the charges framed against the
appellants. Out of them PW-1 Gopal Prasad Verma, PW-2 Shashikant Jha, PW-5 Nawin Prasad Yadav, PW-8 Mahendra Yadav, PW-14 Dev
Narain Yadav, PW-17 Santosh Kumar Singh and PW-22 Bindeshwari Yadav are formal witnesses who have proved some documents or signatures
of other witnesses. PW-6 Sudisa Yadav and PW-12 Ramdev Yadav were tendered by the prosecution and they stated nothing in their examination in
chief. PW-4 Shivnandan Prasad Yadav, PW-7 Bhubneshwar Prasad Yadav, PW-9 Ajit Yadav, PW-10 Balram Sah, PW-11 Domi Ram, PW-13
Satya Narain Yadav, PW-16 Krishana Ballabh Yadav, PW-18 Janardan Paswan and PW-19 Hari Ballabh Yadav supported the prosecution story.
PW-15 Dr. J.B. Singh claimed to have conducted postmortem examination on the corpus of the deceased and proved the postmortem report of the
deceased. PW-20 Abdul Raquibe and PW-21 Dwarika Prasad Singh are police officials.
PW-15 claimed that he did postmortem examination on the corpus of the deceased on 21.07.1987 and found that whole body of the deceased from
head to heel-1st to 2nd degree ante mortem burn present except occipital region of scalp and 2nd degree of burn was present over face, back of chest
and buttock region. He also claimed that after removal of scalp haemotoma measuring 3â€x3†present on right side of parietal region. He also
claimed that after opening the skull cavity, he found the brain material paled. He also claimed to have opened chest cavity and abdominal cavity of the
deceased. He also claimed that smell of K. oil was found present and the cause of death was shock due to burn injuries. He also claimed that time
elapsed since death was about 24 to 36 hours. This witness proved the postmortem report as Ext. 5. The testimony of this witness as well as
postmortem report of the deceased go to show that deceased died of burn injuries. Moreover, cause of death of the deceased is not in dispute.
The appellants and others were charged for the offence punishable under Section 304B of the I.P.C. Now, it has to be seen as to whether
prosecution could succeed to prove the charge framed under Section 304B of the IPC against the appellants. The learned trial court came to
conclusion that prosecution could not succeed to prove the charge of Section 304B/34 of the IPC against the appellants.
On the point of marriage of deceased, PW-7 Bhubneshwar Prasad Yadav at para 7 of his statement, claimed that marriage of deceased had taken
place seven years prior to the alleged occurrence. PW-9 Ajit Yadav at para 20 of his cross examination claimed that marriage of deceased had taken
place ten years ago from the date of occurrence. Similarly, PW-11 Domi Ram stated at para 24 of his cross examination that marriage of deceased
had taken place ten years ago from the date of alleged occurrence. PW-13 Satya Narain Yadav also claimed that marriage of deceased had taken
place ten years ago prior to the alleged occurrence. PW-16 Krishana Ballabh Yadav, who happens to be father of the deceased, at para 8 of his cross
examination admitted that marriage of deceased had taken place ten years ago from the date of alleged occurrence. PW-19 Hari Ballabh Yadav also
admitted that marriage of deceased had taken place ten years ago from the date of alleged occurrence. Therefore, it is obvious that on the point of
marriage there is consistent statement of prosecution witnesses that deceased died much after seven years of her marriage and the learned trial court
rightly held at para 12 of the impugned judgment that prosecution failed to establish charge under Section 304B/34 of the IPC against the appellants as
one of the important ingredients of Section 304B of the IPC was lacking and the question of presumption of dowry death under Section 304B/34 of the
IPC does not arise.
Now, it has to be seen whether the death of the deceased was suicidal, accidental or homicidal. The learned court below has come to conclusion
that death of the deceased was homicidal and it were appellants who killed the deceased.
PW-3 Srimant Sah is co-villager of the appellants. This witness claims that in the night of alleged occurrence, he having heard the noise went
running to the house of appellant no. 1 and saw the deceased writhing due to burn injuries. She also noticed that there was box of k. oil lying there and
he also noticed that there were burnt clothes lying there. This witness further claimed that deceased disclosed that appellants and some others poured
k. oil and lit fire on her body.
PW-4 Shivnandan Prasad Yadav is also co-villager of father of the deceased. This witness claims that PW-19 gave information to him that
deceased was put on fire at Maharajganj and having got the aforesaid information he went to the house of appellant no. 1 where he saw the deceased
lying at Verandah. This witness, further, claims that on being asked deceased told him that appellants and others lit fire on her body after pouring k. oil
on her.
PW-7 Bhubneshwar Prasad Yadav is also co-villager of the appellants. This witness claims that he went to the house of appellant no. 1 having
heard the noise and saw the deceased writhing in pain at Verandah. This witness, further, claims that mother-in-law and sister-in-law of the deceased
were pouring water on the deceased. This witness, further, claims that deceased was uttering that appellants and others lit fire on her person after
pouring k. oil on her.
PW-9 Ajit Yadav is also co-villager of father of the deceased and this witness also claims that he went to the house of appellant no. 1 and saw the
deceased in burnt condition. This witness further, claims that deceased told him that appellants and others lit fire on her body after pouring k. oil on
her.
PW-10 Balram Sah is co-villager. This witness also claims that he went to the place of occurrence and saw the deceased in burnt condition and
when he reached at the place of occurrence, deceased was talking with those persons who were present there.
PW-11 Domi Ram is also co-villager of father of the deceased. This witness also claims that he went to the house of appellant no. 1 where he
saw the deceased who was writhing in pain and was uttering that appellants and others lit fire on her body.
PW-13 Satya Narain Yadav, who happens to be co-villager of the appellants, also made the same statement.
PW-16 Krishana Ballabh Yadav is father of the victim and this witness also claims that when he reached at the house of appellant no. 1, deceased
was writhing in pain in a room and she disclosed that appellants and others lit fire on her body after pouring k. oil on her. Almost similar statement has
been made by PW-19. Therefore, it is obvious that the prosecution witnesses claimed before the trial court that before her death deceased disclosed
that the appellants and others put fire on her body after pouring k. oil on her. The learned trial court disbelieved the aforesaid claim of the prosecution
witnesses.
Admittedly, the present case was lodged on the basis of ferdbeyan of PW-18 Janardan Paswan. This witness has proved his signature on
ferdbeyan. Furthermore, PW-18 admitted in his deposition that on 20.07.1987 while he was at his home he got information about the alleged
occurrence and having got the aforesaid information he went to the house of appellant no. 1 where Chowkidar Nemani, Mukhiya Chandeshwari,
Sarpanch Domi Yadav, Satya Narayan Yadav (PW-13) etc. were present and the aforesaid persons disclosed that appellants and others lit fire on the
person of the deceased after pouring k. oil on her. This witness, further, claims that he went inside the house of appellant no. 1 and found the
deceased lying in a room having burnt injuries on his whole body. This witness, further, admitted that deceased had already died and, thereafter, he
went to Murliganj police station at about 10:00 A.M. and got recorded his ferdbeyan. PW-18 has, nowhere, stated in his ferdbeyan or in his testimony
that when he reached over the place of occurrence, the prosecution witnesses present there disclosed that the deceased had made her extra judicial
statement disclosing the manner of occurrence. In ferdbeyan of PW-18, it has been admitted by PW-18 that when he reached at the house of
appellant no. 1, he found the deceased dead. The above stated statement of PW-18 goes to show that till the registration of present case, none of the
natal people of the deceased had arrived at the place of occurrence. The defence witnesses have also stated that deceased had not made any
statement. Therefore, the claim of above stated prosecution witnesses that deceased disclosed about the alleged occurrence prior to her death appears
to be doubtful and in my view, the learned trial court rightly declined to rely upon the above stated so-called dying declaration because the above
stated so-called dying declaration of the deceased was not free from doubt.
I have already noticed that deceased died of her burn injuries and her whole body was found burnt in course of postmortem examination. PW-15
Dr. J.B. Singh on being cross examined by the defence stated that since maximum burn injury was found on back side of chest, buttock and face and
there was collection and clot of blood in parietal bone, therefore, it was not a case of suicidal death. So, in the opinion of PW-15, death of the
deceased was not a suicidal death and death of deceased was homicidal. The aforesaid claim of PW-15 is mere an opinion and that requires deep
scrutiny. The postmortem report (Ext.5) as well as statement of PW-15 go to show that burn injuries were found on the person of the deceased from
head to her heel. Although, PW-15 claims that injuries found on the person of the deceased suggest that death of the deceased was not suicidal but in
my view, possibility of suicide cannot be ruled out because only on the ground that maximum injuries were found on back portion of the deceased, it
cannot be said that death of the deceased was not suicidal in nature.
Admittedly, perusal of testimonies of prosecution witnesses go to show that not a single prosecution witness claimed to have seen the appellants
pouring k. oil and litting fire on the person of the deceased rather almost all the co-villagers of the appellants claimed to have gone at the house of
appellant no. 1 having heard the noise and when they reached at the place of occurrence, deceased was writhing in pain due to burn injuries.
Furthermore, almost all the prosecution witnesses, except one, admitted that the appellants were not present in the house when they reached over the
place of occurrence. Although, one witness claimed that when he reached at the place of occurrence, he saw that mother-in-law and sister-in-law of
the deceased were pouring water on the deceased but that witness also did not claim that remaining family members of the deceased were also
present over the place of occurrence. It is also an admitted position that appellant no. 2 is cousin father-in-law and appellant no. 3 is cousin mother-in-
law of the deceased. PW-7, who happens to be co-villagers of the appellants, has very clearly admitted at para 11 of his deposition that appellant no. 1
Gabaj Yadav and appellant no. 2 Shiv Narayan Yadav are full brothers and they have partitioned their share and had been residing separately at the
time of alleged occurrence. Furthermore, this witness admitted at para 12 of his cross examination that Shiv Narayan (appellant no. 2) had no concern
with the affairs of appellant no. 1. The prosecution witnesses were confronted by the defence that prosecution brought this false case because
appellant no. 2 had lodged a case of dacoity against the natal people of the deceased for the occurrence of the same day.
It is obvious from the aforesaid fact that appellant no. 2 and appellant no. 3 had no concern with the affairs of appellant no. 1 and admittedly, they
were residing separately from appellant no. 1. It is an admitted case of the parties that deceased was burnt inside the house of appellant no. 1 and it
has come in evidence that appellant no. 2 and appellant no. 3 were not residing in the house of appellant no. 1 and, therefore, presence of appellant no.
2 and appellant no. 3 in the house of appellant no. 1 at the time of alleged occurrence cannot be presumed and appellant no. 2 and appellant no. 3 are
not liable to explain the circumstances in which deceased died.
Admittedly, appellant no. 1 is father-in-law whereas remaining appellants are cousin parents in law of the deceased. The learned court below has
passed the judgment of conviction taking note of this fact that the occurrence took place inside the house of appellant no. 1 and at the time of
occurrence, all the appellants were present in the said house and furthermore, the appellants took active part to cool down the fire by pouring water
and covering the deceased with blanket. The aforesaid finding of the learned trial court does not find support from the prosecution evidence because
as I have already stated that none of the prosecution witnesses claimed to have seen the appellants when they reached over the place of occurrence.
Moreover, only one prosecution witness claimed that he saw that mother-in-law and sister-in-law of the deceased were pouring water on the
deceased but sister-in-law of the deceased has already been acquitted by the learned court below passing impugned judgment and so far as mother-in-
law of the deceased is concerned, she was not put up on trial along with appellants and others. Therefore, it is obvious that there is nothing in the
entire evidence of the prosecution that at the time of alleged occurrence, the appellants were present in the house in which the alleged occurrence
took place.
The prosecution has come with definite story that deceased was killed by the appellants on account of non-fulfilment of illegal demand of dowry.
PW-3 at para 8 of his examination in chief claimed that deceased was taken to her in-laws’ house eight days prior to the alleged occurrence and
the appellants and others had taken Rs. 1500/- in dowry and they were demanding she-buffalo and more cash from the father of the deceased but at
para-36 of his cross-examination, he admitted that terms and conditions of the marriage of deceased had not been settled before him. He also admitted
at para 40 of his cross-examination that at the time of BIDAI of the deceased, he had not gone to natal place of the deceased. Although, this witness
claimed that 2 to 4 days prior to the alleged occurrence deceased was assaulted by her in-laws but he failed to remember as to whether the said
statement was made before the police or not. At para-27 and 28 of his cross examination, this witness admitted that there were two groups in his
village and appellant no. 2 was member of one group and he was also in the group of appellant no. 2. However, as I have already stated that talk of
demand of dowry had not taken place before him nor any cash amount was handed over to appellants before this witness, therefore, it is difficult to
place reliance on the statement of this witness.
PW-7 at para 7 of his deposition claimed that at the time of marriage of deceased rupees seven thousand was given in dowry and again at the time
of BIDAI of the deceased, rupees one thousand five hundred was given but in-laws of the deceased were not satisfied and they were demanding
more dowry. However, at para 26 of his cross examination, he admitted that he had heard about the demand and payment of dowry. Again, this
witness at para 36 of his cross examination admitted that he had not gone to take BIDAI of the deceased. This witness also admitted that no
Panchayati had been held in respect of demand of dowry. This witness also admitted at para 38 of his cross examination that he had heard about the
torture of the deceased.
PW-9 has only claimed that deceased was killed on account of non-fulfilment of dowry. PW-9 happens to be co-villager of father of the deceased
but this witness has stated nothing about the demand of dowry. Almost similar statement has been made by PW-10 who has stated that present
occurrence took place on account of demand of TILAK. Moreover, this witness at para 23 of the cross examination admitted that talk of Tilak as well
as demand of dowry had not taken place before him.
PW-11 has stated that occurrence took place on account of demand of dowry but he admitted that nothing was paid in his presence. This witness
again admitted at para 32 of his cross examination that talk of dowry did not take place in his presence.
PW-13 at para 8 of his examination in chief claimed that at the time of Bidai of the deceased, rupees one thousand five hundred was paid to her in
laws and the in-laws of the deceased were demanding more cash from the father of the deceased. However, para 18 of cross examination of this
witness goes to show that this witness has inimical terms with appellant no. 1. This witness admitted at para 42 of his cross examination that demand
of dowry was not made before him and he was also not present at the time of negotiation of marriage of the deceased. This witness further admitted
at para 45 of his cross examination that no Panchayati was held in respect of demand of dowry. He further admitted at para 55 of his cross
examination that he had not gone to take BIDAI of the deceased.
PW-16 is very important witness because PW-16 is father of the deceased. This witness admitted that after six to six and half years of marriage
deceased was taken to her in laws house and between the above stated period of six to six and half years, in laws of the deceased were demanding
rupees four thousand in cash and one she-buffalo in dowry. This witness further claimed that at the time of BIDAI, he had given rupees one thousand
five hundred in cash and other articles but after five to six days of BIDAI of the deceased, he got a message sent by in laws of the deceased to give
rupees four thousand and one she-buffalo to them. This witness also got information that deceased was being tortured. This witness further claimed
that having got the aforesaid information he went to the house of appellant no. 2 but the appellants as well as other in laws of the deceased demanded
cash and she-buffalo and also threatened to kill the deceased. This witness in his cross examination admitted that husband of the deceased had come
to his house for taking BIDAI of the deceased and hot exchange of words had taken place between him and husband of the deceased on the point of
dowry. This witness has also admitted that he had not made complain to any person in respect of demand of the appellants. This witness further
admitted that at the time of marriage he agreed to pay rupees seven thousand to in laws of the deceased and he paid the aforesaid amount to them.
He further admitted that husband of the deceased did not visit to his house prior to BIDAI of the deceased and he told the aforesaid fact to appellant
no. 1. This witness further admitted that he had not made complain before the police or any person regarding torture of the deceased. This witness
further admitted at para 18 of his cross examination that PW-3, PW-13 and Bhumi Yadav had given information to him about the demand of cash and
she-buffalo. Perusal of statement of this witness goes to show that appellants had not made any demand directly from PW-16. So far as PW-3 and
PW-13 are concerned, they have, nowhere, stated in their respective statements that appellants had asked them to convey their demand to PW-16.
Moreover, only oral statement regarding the so-called demand has been made by the prosecution and there is no documentary evidence on record to
show that appellants had made any demand from PW-16.
As I have already stated that some of the prosecution witnesses have admitted that appellants no. 2 and 3 were separate from appellant no. 1 at
the time of alleged occurrence and the aforesaid fact has been corroborated by PW-20 who has admitted at para 14 of his examination in chief that at
the time of inspection of place of occurrence, he found that appellant no. 2 was separate from appellant no. 1. Furthermore, as I have already
discussed that there is nothing in prosecution evidence to show that at the time of alleged occurrence appellant no. 1 was present in his house rather it
has come in evidence that wife and daughter of appellant no. 1 were present in the house at the time of alleged occurrence. Therefore, in my view,
only on this ground that deceased died in mysterious circumstance in the house of appellant no. 1, it cannot be said that appellant no. 1 was duty bound
to explain the circumstances in which deceased died.
On the basis of aforesaid discussions, I am of the considered view that prosecution could not succeed to prove the charges levelled against the
appellants beyond shadow of reason doubts and in my view, the appellants are entitled to get benefit of doubt.
Accordingly, this criminal appeal is allowed and impugned judgment of conviction and sentence order dated 24.02.1994 is, hereby, set aside and the
appellants are acquitted of the charges giving benefit of doubt to them. The appellants are already on bail. They are discharged from the liabilities of
their bail bonds.
Copy of first and last page of this judgment be handed over to learned Amicus Curiae Ms. Surya Nilambari so that she could claim for her
remuneration before the competent authority.