Suresh Kumar and Others vs The State of Bihar

Honourable Mr. Justice Mandhata Singh

Prosecution case is based on complaint of one Nilam Kumari wife of Dilip Kumar Sinha appellant of Cr. Appeal No.132 of 1999 which later was registered as F.I.R. when was sent to Police Station u/s 156(3) of Code of Criminal Procedure. Prosecution case, in brief, is that complainant/informant was married with Dilip Kumar Sinha on 1.6.1986 according to Hindu rites and rituals. At the time of negotiation on 11.5.1986 father of husband namely Kedar Nath Singh, his brothers Binda Lal and Sarwan Kumar demanded Rs. 25,000/- by way of dowry besides other articles as consideration for marriage. At the time of marriage, father of complainant gave ornaments of 5 tola gold, 5 tola silver, one TV and utensils etc but not to the satisfaction of the in-laws. This demand continued even after marriage when she went to her Sasural at Mohalla Ghoghari Tand, Gaya. All her gold, silver and Rs. 1,000/- were taken forcibly by husband on persuasion of other accused persons. After 15 days of marriage, father and brother of complainant went to her Sasural, same demand was made rather threatening was given not to keep complainant with them. Bidai could be possible only on promise to pay Rs. 20,000/-. Ill-treatment started after Rukhsati followed by assault mercilessly and demand of Rs. 40,000/- was made. Several requests at different occasions were made by father of complainant to keep complainant by accused persons giving dignity for which she was entitled, remained unheard.

On 22.8.1989 informant came to her Sasural at Gaya. After some time, she was taken to Patratu by husband where husband, his brother Sarwan Kumar, wife Narayani Devi and Kedar Nath assaulted her by means of fist and kicks with threatening to kill. They threw her on railway track with intent to kill but any how she was saved. Cruelty has been defined by giving no food also.

The trial is ended to conviction and sentence to accused appellants for the offence under sections 307/34, 498A and 379 of the Indian Penal Code and section 4 of Dowry Prohibition Act.

I.A.No. 368 of 2012 at Flag-A has been filed on behalf of counsel for appellants stating therein that appellant nos. 3,4 and 6 namely Malti Devi, Kedar Nath and Narayani Devi have died during the pendency of this appeal. Hence their names be expunged from the memo of appeal. Accordingly, the prayer is allowed. Appeal on their behalf is abated.

In all ten witnesses are examined on behalf of prosecution and they are P.W.1 Pankaj Kumar Sinha, P.W.2 Rajesh Kumar, P.W.3 Rajiv Kumar, P.W.4 Meena Devi, P.W.5 Kusum Devi, P.W.6 Manohar Murti Nandkuliyar, P.W.7 Arvind Kumar Sinha, P.W.8 Dr. Sultan Ahmad, P.W.9 Nilam Kumari, P.W.10 Brijnandan Prasad S.I. a formal witness.

Witness nos. 1, 2, 3 and 7 are brothers of the informant, P.W.4 is her sister and P.W.5 her mother. As conviction to accused appellants is in different sections, so witnesses are to be scrutinized to the angle of particular offence if really constitutes. For that purpose, the offence u/s 379 of the Indian Penal Code is taken first. Offence under this section is alleged for keeping informant''s ornaments and cash by accused appellants that is corroborated by P.Ws 1, 2, 3 and 7 but these witnesses are not eye witness of the incident of keeping of jewellery or cash. Victim P.W.9 is only there who could state about keeping of jewellery or cash by accused appellants but she is not making any statement on this point. So, the incident and allegation about commitment of theft recorded by the trial court cannot be justified finding no material.

Another offence for which appellants are alleged is section 307 of the Indian Penal Code. No doubt witnesses 1, 2, 3,4,6,7 and 9 are there to state that assault was being caused to P.W.9 but except victim other witnesses are not eye witness of the incident. So the victim herself alone remains to state about assault if any was caused with intention to kill having corroboration of medical report of P.W.8 Dr. Sultan Ahmad who has examined the victim.

Vague allegation about Marpeet is leveled at Ghughari Tand, Gaya and Patratu. There is no specification at all for the assault at Ghughari Tand but that is specified for Patratu. In paragraph 4 P.W.9 states that at Patratu she was ousted after assault. Her hearing was damaged. Dilip Kumar Sinha, Sarwan Kumar and Jai Narayani Devi kept her (informant) on railway track that she would come under the running train. Again and again she was assaulted.

The doctor P.W.8 has found two scar mark opining no injury, in no case leading to intention to kill and alleged against three of the accused appellants namely Dilip Kumar Sinha, Sarwan Kumar and Jai Narayani Devi. They have been further alleged for keeping the victim at railway track after causing assault with intention to eliminate. How this act can be connected with intention to kill is beyond imagination. If the allegation would have been that she was kept on the railway track while any train was coming that could justify for eliminating her but simply the allegation of keeping the victim on railway track in no case can be believed for intention to kill so, the conclusion on this point arrived at by the trial court is not liable to sustain.

Next offence is section 4 of the Dowry Prohibition Act. Fardbeyan recorded in the F.I.R. is to the effect that the demand of dowry was being made by the father and two brothers of the husband from the time of negotiation of marriage which only continued after marriage with torture, harassment or cruelty caused to victim. The act of demand of dowry and torture is accompanied by husband also after marriage though before marriage it was against father and two brothers. Allegation of torture in form of assault for demand of dowry is specified against husband, his brother Sarwan Kumar and brother''s wife Jai Narayani Devi.

Accused appellants are residents of Ghughari Tand, District Gaya. Accused appellants Sarwan Kumar and his wife were residing at Patratu in connection with job to Sarwan Kumar. Husband was unemployed as deposed by most of the witnesses. After death of father and sister-in-law Narayani Devi, demand or torture remains to be decided against the husband and his brother Sarwan kumar that is believed for the husband appellant of Cr. Appeal No. 132 of 1999, has been well discussed by the trial court also. But as about involvement of accused appellant Sarwan Kumar in paragraph 5 P.W.9 states that she had watched illicit relation of her husband with Jai Narayani Devi wife of Sarwan Kumar and his youngest sister-in-law (Sali). Accused appellant Dilip Kumar Sinha was to be married with Sarwan Kumar''s youngest sister-in-law, if that was the reality then Sarwan Kumar would have never cooperated this relation. As about marriage of his sister-in-law with complainant''s husband the case is beyond imagination. This relation was earlier to marriage and it has come that husband of the informant was dependent upon Sarwan Kumar. He could lead a vital role in marriage of his sister-in-law with Dilip Kumar Sinha and now it is said that she never married to informant''s husband. This much of the allegation if would have not been added there could be a little chance to accept the allegation leveled against accused appellant Sarwan Kumar but now that also came to an end.

Rest of accused namely appellants no. 1 and 2 of Cr. Appeal No. 120 of 1999 have not been ever specifically alleged for demand, torture, harassment or cruelty to the informant. So their conviction by the trial court may never be justified.

For the appellant husband of Cr. Appeal No. 132 of 1999 it is submitted that the case was lodged in the year 1990, marriage solemnized in the year 1986, informant left husband''s house in the year 1990, since then she never joined the company of husband rather it has come in her statement in paragraph 12 that she was not willing to reside with her husband. So, the sentence may be minimized to the period undergone by accused appellant Dilip Kumar Sinha of Cr. Appeal No. 132 of 1999.

On the observations made above, evidence on record and circumstances of the case, Cr. Appeal No. 120 of 1999 is allowed. Judgment of conviction and order of sentence dated 15.5.1999 and 17.5.1999 passed in Sessions Trial No. 112/98/297/92 is set aside, accused appellants Suresh Kumar, Binda Lal and Sravan Kumar are acquitted of their respective charges, discharged from the liabilities of their bail bonds and set at liberty. Cr. Appeal No. 132 of 1999 is allowed in part. Judgment and order of conviction and sentence dated 15.5.1999 and 17.5.1999 are set aide for the offence under sections 379 and 307 of the Indian Penal Code but affirm for the offence u/s 4 of the Dowry Prohibition Act and section 498A of the Indian Penal Code and for both the offences the sentence is minimized to the period already undergone by accused appellant Dilip Kumar Sinha. As he is on bail, he shall stand discharged from his liability of bail bond and set at liberty. Let a copy of this judgment along with lower court records be sent back to the trial court forthwith.