Jatashankar Sah vs State of Bihar

Hemant Kumar Srivastava, J.—Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. This criminal appeal has been preferred by the sole appellant against the judgment of conviction dated 20.02.2001 and sentence order dated 27.02.2001 passed by Sri Nishi Kant Choudhary, 7th Additional Sessions Judge, Motihari in Sessions Trial No. 272/113 of 2000 by which and whereunder he convicted the appellant for the offences punishable under Sections 304B and 201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years u/s 304B of the Indian Penal Code and to undergo rigorous imprisonment for three years u/s 201 of the Indian Penal Code. The learned 7th Additional Sessions Judge, Motihari directed that both the sentences would run concurrently.

In brief, the prosecution case is that P.W. 8, namely, Bhagwan Prasad gave his Fardbeyan to S.I., A. K. Mishra, Officer in Charge of Banjaria Police Station on 21.10.1999 at about 11:30 a.m. at Banjaria Police Station to this effect that marriage of his elder daughter, namely, Anita Kumari was solemnized with the appellant in the year 1993 and after marriage, Anita Kumari went to her in-laws'' house and started residing there. He further stated that in due course, she gave birth to two children but after marriage, appellant demanded television in dowry but he expressed his inability to fulfil the aforesaid demand. He further stated that his third daughter, namely, Rani Kumari had gone to the in-laws'' house of Anita Kumari and on 18.10.1999, appellant assaulted Anita Kumari due to non-fulfilment of his demand of television and when Rani Kumari came to her rescue, she was, too, beaten by the appellant and ousted from his house. After the aforesaid occurrence, Rani Kumari returned to her home and narrated the aforesaid incident to him. He further stated that on 20.10.1999, his cousin brother, namely, Shiv Pujan informed him that Anita Kumari was poisoned by her husband and after that she was taken to doctor Rahmen Nursing Home but doctor refused to get her admitted as she had already died. He further stated that in the morning, he came to know that dead body of his daughter, Anita Kumari was recovered by the Banjaria Police and after that he went there and identified the dead body of his daughter.

On the basis of aforesaid Fardbeyan, Mufassil (Lakhaura) P.S. Case No. 171 of 1999 under Sections 304B and 201 of the Indian Penal Code was registered and accordingly, formal first information report was drawn for the above stated offences against the appellant. The matter was investigated and after completion of investigation, charge sheet was submitted for the above stated offences. The cognizance of the offences was taken and the case was committed to the court of Session, in usual way and accordingly, the appellant was put on trial.

The appellant was charged for the offences punishable under Sections 304B and 201 of the Indian Penal Code to which he denied and claimed to be tried.

In course of trial, altogether, nine prosecution witnesses were examined and prosecution also got exhibited signature of P.W. 8 on Fardbeyan as Exhibit-1, Fardbeyan as Exhibits-2 and carbon copy of inquest report as Exhibit-3. The statement of appellant was recorded u/s 313 of the Cr.P.C. in which he reiterated his innocence. No evidence was adduced on behalf of the appellant in support of his defence but from perusal of statement of the appellant recorded u/s 313 of the Cr.P.C., it is apparent that the defence of the appellant was total denial of the prosecution story.

The learned trial court having relied upon the testimony of P.W. 8 and P.W. 9 coupled with facts and circumstances of the case passed the judgment of conviction and sentence order in the manner as stated above.

Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove all the ingredients of Section 304B of the Indian Penal Code but in spite of that learned trial court convicted the appellant only on the basis of surmises and conjectures. He further submitted that learned trial court failed to understand this fact that unless and until prosecution succeeds to prove all the ingredients of Section 304B of the Indian Penal Code, there would be no presumption for the offence u/s 304B of the Indian Penal Code against an accused.

On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W. 8, the informant of this case, supported his case in his examination-in-chief and the learned trial court after taking the totality of the materials available on the record passed the impugned judgment of conviction and sentence order and, therefore there is nothing before this Court to interfere with the findings of the learned trial court.

As I have already stated that, altogether, nine prosecution witnesses were examined by the prosecution in course of trial. Out of whom, P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5, P.W. 6 and P.W. 7 have been declared hostile and they have stated nothing in respect of the alleged occurrence. It is pertinent to note here that P.W. 6 is none else than third daughter of informant. P.W. 8 but P.W. 6 stated that she does not know anything about the alleged occurrence nor she had made any statement before the police.

P.W. 8 is informant of this case. He stated that marriage of his daughter, namely, Anita Kumari was solemnized with the appellant six and half years ago. He further stated that his younger daughter had gone to the house of the appellant and when she returned to her home, she disclosed that there was a quarrel between Anita Kumari and appellant, Jatashankar Sah. He further stated that later on, he came to know that appellant administered poison to deceased, Anita Kumari and having got the aforesaid information he went to the house of the appellant where he came to know that dead body of Anita Kumari had been recovered by Banjaria Police Station. This witness proved his signature on Fardbeyan as Exhibit-1. On being cross examined by the defence, he Stated that Anita never made any complaint regarding any dowry demand against the appellant. This witness has, nowhere, stated in his examination-in-chief that appellant had made any demand from him.

P.W. 9 is Investigating Officer of this case. This witness stated that he took the charge of investigation and recorded the statements of witnesses, inspected the place of occurrence and after completion of investigation, submitted charge-sheet.

On scrutiny of the evidences available on the record, it is explicit clear that not a single prosecution witness stated that there was any demand of dowry and furthermore, there is no witness on this point that deceased was subjected to cruelty and harassment soon before her death. According to prosecution case itself, P.W. 8 came to know about the alleged torturing of the deceased from his daughter, Rani Kumari, who has been examined as P.W. 6 but P.W. 6 has, nowhere, stated that deceased, Anita had been subjected to cruelty and harassment by the appellant and, therefore, it is apparent that the prosecution completely failed to prove all the ingredients of Section 304B of the Indian Penal Code.

It is settled principle that to attract the presumption u/s 113B of Evidence Act, the prosecution has to prove this fact that deceased was subjected to cruelty by the accused soon before her death and the aforesaid cruelty must be in connection with demand for dowry but in the present case, the aforesaid important ingredient could not be proved by the prosecution and the learned 7th Additional Sessions Judge committed error in coming to the conclusion that prosecution succeeded to prove its case beyond all shadow of reasonable doubts.

So far as Section 201 of the Indian Penal Code is concerned, admittedly, there is nothing on the record to show this fact that appellant tried to disappear the dead body of the deceased with an intention to screen himself from legal punishment and only because the appellant is husband of the deceased and the dead body of the deceased was found under the jurisdiction of Banjaria Police Station, it cannot be said that dead body of the deceased had been thrown by the appellant. On the basis of aforesaid discussions, I am of the opinion that the impugned judgment of conviction and sentence order cannot sustain in the eye of law. Accordingly, this criminal appeal is allowed and the impugned judgment of conviction dated 20.02.2001 and sentence order dated 27.02.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liability of his bail bonds.