Rajeshwar Mishra and Others vs State of Bihar

Manoharlal Visa, J.—Both these appeals arise out of the same judgment dated 27.8.1996 and order dated 28.8.1996 passed by IIIrd Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No. 176 of 1992 and, therefore, both the appeals have been heard together and are being disposed of by this common judgment.

Rajendra Tewary and Bachana Kuer, both appellants of Criminal Appeal No. 435 of 1996 and Rajeshwar Mishra, appellant of Criminal Appeal No. 430 of 1996 have been convicted under Sections 304B and 201, Indian Penal Code and Section 3, Dowry Prohibition Act. They all have been sentenced to undergo rigorous imprisonment for life u/s 304B, Indian Penal Code. No sentence against them has been passed u/s 201, Indian Penal Code and Section 3, Dowry Prohibition Act.

The prosecution case in short is that on 20.8.1991, the informant Bhanu Pandey (P.W. 8) received information from one Bageshwar Tiwary (not examined) that he (Bageshwar Tiwary) had heard at Bettiah Court that the daughter-in-law having her Naihar at Chailabhar had died. On hearing this, the informant along with his nephew Hari Shankar Pandey (P.W.I), Kapildeo Tiwary (not examined), Rahman Ansari (P.W. 4) and Balram Mishra (P.W. 5) went to the house of his son-in-law, appellant Rajendra Tewary situated at village Shivraj where he neither found the appellant nor his daughter Bimla Devi. Chandrika Tiwary, brother of appellant who, at that time, was lying sick, informed the informant that his daughter Bimla Devi died on the night of the day before yesterday and her dead body had been cremated on previous day by family members and villagers. When the informant enquired from Chandrika Tiwary about the cause of death of his daughter, Chandrika Tiwary replied that he did not know how she died. According to informant, his daughter was married two years ago and appellant, on account of demand of motorcycle in dowry, used to assault her and his daughter, being tortured by the high-handedness of appellant, his brother Lal Babu Tiwary and his mother Bachana Kuer, one of the appellants, had come to his house on 9.8.1991 and, thereafter, on 14.8.1991, appellant and Lal Babu Tiwary came to the house of informant and assured that his daughter will not be tortured in future and took her to their house. When Bimla Devi was with informant, she had told him that on account of demand of motorcycle, she was regularly being tortured by appellants Rajeshwar Tiwary, Bachna Kuer and her Devar. Informant further came to know that at the time of cremation of dead-body, some marks of assault were found on the body of Bimla Devi but villagers expressed their inability in deposing this fact in Court. The informant claimed that his daughter Bimla Devi was murdered on the night of 19.8.1991 by the appellants, Rajendra Tewary, Bachna Kuer and co-accused Lal Babu Tiwary and without giving him information, they all cremated the dead body of Bimla Devi on 20.8.1991 and he further came to know that for disposal of the dead body of his daughter, they had dug a ditch in their house but because of hulla in the village, they cremated the dead body of his daughter. The First Information Report was lodged by informant on 21.8.1991 at Nautan Police Station at about 1 p.m.- and the police registered a case against appellants and Lal Babu Tiwary under Sections 304B and 201, Indian Penal Code.

After investigation, Police submitted charge-sheet against all the three appellants and Lal Babu Tiwary under Sections 304B/201/34, Indian Penal Code and cognizance was taken. On 11.6.1992, the case of co-accused Lal Babu Tiwary was separated from the case of appellants because Lal Babu Tiwary appeared to be below the age of fifteen years and his case was separated for disposal according to the provisions of Juvenile Justice Act. The case of the appellants was committed to the Court of Sessions, where charges under Sections 304B and 201, Indian Penal Code and Section 3, Dowry Prohibition Act were framed and on denial of charges by the appellants, they were put on trial and on conclusion of trial, they all were found guilty under Sections 304B/201, Indian Penal Code and Section 3, Dowry Prohibition Act and were convicted and sentenced, as indicated above. The defence of appellants, as it appears from the trend of cross-examination, is of their false implication in this case at the instance of Seth Dubey (P.W. 7) and Rama Dwivedi (P.W. 3).

In order to prove its case, prosecution has examined nine witnesses. Bhanu Pandey (P.W. 8) is informant, Hari Shankar Pandey (P.W. 1), nephew of informant, has simply stated that Bimla Devi, the daughter of informant, four years prior to occurrence, was married to appellant Rajendra Tewary. He has simply stated that he heard that a bride had died in village Shivraj and the Naihar of that bride was Chailabhar and he does not know that appellant Rajendra Tewary was demanding motorcycle from informant. He has been declared hostile by the prosecution. Shanker Gour (P.W. 2) has simply stated that when he had gone to Shivraj village, he came to know that wife of appellant Rajendra Tewary was not present in her house and he also came to know that her dead body was cremated and villagers were telling that she had committed suicide but cause of her committing suicide was not known to him. He has also been declared hostile. Rama Dwivedi (P.W. 3) and Kapildeo Mishra (P.W. 6) are tendered witnesses, Balram Mishra (P.W. 5) has simply stated that Bimla Devi, daughter of informant, was married to appellant Rajendra Tewary four years ago and he came to know that Bimla Devi died but he does not know how she died. Rahman Ansari (P.W. 4) and Seth Dubey (P.W. 7) have stated about case of the prosecution.

Bhanu Pandey (P.W. 8), the informant, has stated that his daughter Bimla Devi was married six years ago with the appellant Rajendra Tiwari and she has a daughter aged about two years and after marriage, relationship between his son-in-law Rajendra Tewary and daughter Bimla Devi was not cordial and once Bimla Devi came to his house but some days thereafter, appellant Rajendra Tewary came to his house and took his daughter with him. He has said that his daughter died two years ago and this information was given to him by Bageshwar Tiwari who came to his house and told him that when he was in Court, he came to know that his daughter had been killed and on this information, when he went to the house of appellant, Rajendra Tewary, he did not find the appellant there and the house of appellant was locked and he came to know from Rama Dwivedi (P.W. 3) and Seth Dubey (P.W. 7) that appellant Rajendra Tewary, after assaulting his daughter, had committed her murder and he also came to know that body of his daughter had been cremated. He has further said that when his daughter had come to his house, she had told him that because of non-fulfilment of demand of dowry, appellant Rajendra Tewary used to assault her. In cross-examination, he has said that on three occasions, his daughter came from her sasural to his house, Seth Dubey (P.W. 7) has said that his house is situated near the house of appellant Rajendra Tewary and appellant Rajendra Tewary was not having cordial relations with his wife Bimla Devi and prior to occurrence, Bimla Devi, on account of suffering from torture, was compelled to go to the house of informant and, thereafter, appellant Rajendra Tewary, along with Lal Babu Tiwary went to the house of informant and brought back Bimla Devi. He has further said that on 19.8.1991, the appellants Rajendra Tewary, Bachna Kuer and co-accused Lal Babu Tiwary had. assaulted Bimla Devi and on the morning of 20.8.1991, appellant Bachna Kuer told him that Bimla Devi had run away from the house but on the same day at about 11 a.m., he came to know that Bimla Devi had died and on the previous day, appellants Rajendra Tewary and Bachna Kuer and co-accused Lal Babu had said that they would kill her. About appellant Rajeshwar Mishra, he has simply stated that the remaining appellants took the dead body of Bimla Devi on his tyre cart for cremation and in cremation, this appellant was also present. Rahman Ansari (P.W. 4) has stated that on 19.8.1991, he came to know that appellants Rajendra Tewary, Krishna Kuer along with Lal Babu had committed the murder of Bimla Devi after assaulting her and he further came to know that assault was made on her and she died and when he went to the house of appellant Rajendra Tewary, he did not find any one there except elder brother of Rajendra Tewary who was lying ill and who informed him that dead body of Bimla Devi had been cremated. He had further said that informant had told him that her daughter was killed because of non-fulfilment of demand of motorcycle.

From the evidence on record, we find that so far case of appellant Rajeshwar Mishra is concerned, admittedly, he is not related to the family of Rajendra Tewary, the husband of deceased. Informant has not even whispered his name in his evidence. Only P.W. 7, in Para 3 of his evidence, has said that appellant took the dead body of Bimla Devi on a tyre cart and that tyre cart belonged to Rajeshwar Mishra and Rajeshwar Mishra was with other appellants in cremating dead body of Bimla Devi. There is nothing on the record to show that appellant Rajeshwar Mishra was having any knowledge that Bimla Devi, immediately before her death, was put to torture by remaining appellants on account of demand of dowry and her death was under the circumstances not normal and other remaining two appellants were disposing of her body in order to screen themselves from any legal punishment. It is the usual practice that a dead body is taken for its final disposal and last rituals to places marked for such purposes such as graveyard, cremation ground, etc. and taking the dead body of Bimla Devi on his cart and, thereafter, taking part in the cremation of dead body by appellant Rajeshwar Mishra, does not show commission of any offence by him. So we find that the conviction of appellant Rajeshwar Mishra is not proper. We, therefore, hold appellant Rajeshwar Mishra not guilty of charges levelled against him.

So far appellant Bachna Kuer, the mother-in-law of deceased Bimla Devi is concerned, we find that although P.W. 7, in his evidence, has said that on the night of 20.8.1991. Bimla Devi was assaulted by this appellant and appellant Rajednra Tewary and co-accused Lal Babu Tewary, but he has said that she was assaulted in the night. He has not made it clear that place where the deceased was assaulted by the aforesaid persons and if she was assaulted in the house of appellants how he came to witness this occurrence. The informant, who is father of deceased, has clearly stated that when her daughter had come to his house from her sasural, she had complained against her husband, appellant Rajendra Tewary only and had stated; that because of non-fulfilment,of demand of dowry, she was being assaulted by her husband. He has further stated that when, after hearing the death of his daughter, he had gone to the house of appellant Rajendra Tewary, he did not find any one there and at that time RWs. 3 and 7 had told him that his daughter was killed by appellant Rajendra Tewary who, after assaulting her, had killed her. He made this statement further clear by stating that she was assaulted by one man only, namely, appellant Rajendra Tewary and by assaulting his daughter, he had committed her murder. He has not named appellant Bachna Kuer as the assailment of deceased. In this view of the matter, the evidence of P.W. 7 that on the night of 19.8.1991, deceased was assaulted by appellant Bachna Kuer also does not seem convincing and reliable. We, therefore, find that evidence against appellant Bachna Kuer is also not adequate to warrant her conviction and she is held not guilty of the charges framed against her.

So far the case of appellant Rajendra Tewary is concerned, admittedly, he is the husband of deceased and it is not disputed that his marriage with deceased had taken place within seven years from the death of deceased. There is clear statement of informant who is none else but the father of deceased that when his daughter had come to his house, she had complained that on account of demand of dowry, appellant Rajendra Tewary used to assault her. We do not find any reason to disbelieve this evidence. It is the further case of informant that the news of death of his daughter was given to him by one Bageshwar Tiwary, who in turn, had heard it in Court. The conduct of petitioner in not informing the informant about the death of his wife is also a strong circumstance against the appellant. It has not been denied that death of deceased occurred in the house of appellant Rajendra Tewary. The learned Counsel appearing on behalf of the appellant Rajendra Tewary submitted that Bimla Devi died of natural death. The appellant Rajendra Tewary, in his examination u/s 313, Code of Criminal Procedure has not stated that his wife died of natural death and in this examination, he has simply denied the charges. When deceased, who was, admittedly, wife of appellant Rajendra Tewary and who, admittedly, died in his house, the cause of her death or the circumstances in which she died, must be within the knowledge of appellant Rajendra Tewary and it was for him to show that how she died but failure on his part to disclose anything about the cause of death of deceased coupled with the fact that he did not inform the informant about death of his wife clearly shows that deceased died under circumstances which were not normal. The evidence of informant that immediately before her death, the deceased was subjected to torture on account of demand of dowry clearly proves that it is a case of dowry death. We, therefore, find that so far the case of appellant Rajendra Tewary is concerned, the prosecution has proved its case beyond all reasonable doubts against him under Sections 304-B, 201, Indian Penal Code as well as Section 3, Dowry Prohibition Act. The finding of the Court below, therefore, requires no interference by this Court.

In the result, Criminal Appeal No. 430 of 1996 is allowed and appellant Rajeshwar Mishra is acquitted of the charges because he has not been found guilty and he is discharged of his liabilities of bail bonds.

So far Criminal Appeal No. 435 of 1996 is concerned, it is allowed in part and appellant Bachna Kuer, who is held not guilty, is also acquitted of the charges and she is discharged of her liabilities of bail bonds. So far this appeal, in respect of appellant Rajendra Tewary is concerned, considering the facts and circumstances of the case, we find that in place of imprisonment for life, a period of rigorous imprisonment of seven years will meet the ends of justice and is sufficient for the offence. Upholding the conviction of appellant Rajendra Tewary, his sentence is reduced from rigorous imprisonment for life to rigorous imprisonment for seven years and this appeal against the appellant Rajendra Tewary stands dismissed with modification in sentence, as indicated above.

Needless to say that period already undergone by appellant Rajendra Tewary in custody will be set off according to law.

Bal Krishna Jha, J.

I agree.