IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.454 of 2003
Lal Babu Chowdhary @ Lal Babu Sahni, Son of Magan Sahani, Resident o f
Batraula, P.S. Motihari Muffasil, District – East Champaran.
…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Sandeep Kumar, Adv.
Mr. Ajit Kumar, Adv.
Mr. Rohit Raj, Adv.
Mr. Neeraj Kumar, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 29-03-2018
This appeal is directed against the judgment of conviction dated
18.08.2003 and order of sentence dated 04.09.2003, passed by Sri
Ram Bilash Rai, the then 5th Additional Sessions Judge, East
Champaran, Motihari, in Sessions Trial No. 199/2002, 26/2002 by
which the sole appellant Lal Babu Chowdhary @ Lal Babu Sahni
stood convicted under Sections 304B of the Indian Penal Code
(hereinafter referred to as the “IPC”) and was sentenced to undergo
R.I. for ten years. He has further been convicted under Section 498A
and 201 of the IPC, however, no separate sentence was passed under
those sections.
2. Prosecution case as per the fardbeyan of informant Bhutur
Choudhay (P.W. 7), in short is that the marriage of his sister-in-law
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(Sali) Sharda Devi was solemnized with appellant Lal Babu
Chowdhary @ Lal Babu Sahni of his village, according to Hindu rites
and customs and in the marriage, dowry was also given as per the
capacity of father of Sharda Devi but soon after the marriage,
appellant started demanding cow, bicycle and watch, for that the
appellant used to assault the Sharda Devi. It is also his case that in
view of such demand, his father-in-law had given a cow and a calf to
the appellant twenty days ago but in spite of that appellant did not
stop assaulting the Sharda Devi. It has also been alleged that the
Sharda Devi had no issue, which was also one of the reasons that she
was being subjected to cruelty. It has further been alleged that the
informant received information that his sister-in-law has been done to
death by the appellant by pressing her neck and the dead body was
being carried by him for disposing of the same, on which, he along
with his wife went to the house of his sister-in-law but nobody was
found present there and came to know that after committing murder of
his sister-in-law, the appellant had gone along with nearby people
with the dead body carrying on the cycle to dispose of the dead body.
It is further case of the prosecution that about 12 „O‟ clock in the
night, he saw appellant with a wetted gunny bag along with other
persons and when he enquired about his sister-in-law, they told him
that she had died and her dead body has been disposed of. It is
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claimed that his sister – in – law Sharda Devi was killed by the
appellant by throttling her neck and disposed of the dead body of
Sharda Devi.
3. On the basis of the aforesaid fardbeyan of informant, F.I.R
bearing Mufasil P.S. Case No. 108/2001 was registered.
4. Police after investigation submitted charge-sheet. Cognizance
of the offence was taken and the case was committed to the court of
Sessions, which ultimately came to the file of Sri Ram Bilash Rai, the
then 5th Additional Sessions Judge, East Champaran, Motihari, for
trial and disposal.
5. Charges were framed under Sections 498A, 304B and 201 of
the IPC against the appellant.
6. To substantiate the charges, prosecution examined altogether
eleven witnesses. They are: P.W. 1 Ramesh Sahani, declared hostile,
P.W. 2 Sheomangal Choudhary, father of informant, P.W. 3 – Bachi
Devi, sister of deceased and wife of informant and has been declared
hostile, P.W. 4 – Narayan Mahto, who has not supported the case of
prosecution, P.W. 5 – Gyani Devi, mother of informant, declared
hostile, P.W. 6- Jhhakhar Sahani, father of the deceased, declared
hostile, P.W. 7 – Bhuthur Chaudhary (informant), P.W. 8 – Umesh
Sahani, brother of the deceased, declared hostile, P.W. 9 – Abdul
Jabbar, declared hostile, P.W. 10 – Rajendra Prasad Singh (I.O.), P.W.
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11- Dr. Sailendra Kumar Jha, who along with other doctors conducted
post mortem examination on the dead body of deceased Sharda Devi
and P.W. 12 – Sk. Sagir Hussain, a formal witness, who proved
fardbeyan (Ext. 2), Formal F.I.R (Ext. 3), Inquest Report (Ext. 4) and
writing of case diary from 04.07.2001 to 14.11.2001 (Ext. 5)
7. Apart from that following documents have been brought on
record and marked as Ext. 1 to 1/C – Post mortem examination report
and signatures of S.S. Mehta and S.N. Chaudhary over the post
mortem report, Ext. 2 – Fardbeyan, Ext. 3 – Formal F.I.R, Ext. 4 –
Carbon copy of inquest report and Ext. 5 – Case diary.
8. The defence of the accused person is of innocence and of false
implication due to enmity. Further defence is that the deceased died
due to epilepsy
9. On conclusion of trial, the Trial Court has convicted the
appellant under Sections 304B ,498A and 201 of the IPC and
sentenced him in the manner as stated above.
10. Contention of learned counsel for the appellant is that the trial
court has failed to consider that most of the witnesses have either not
supported the case of prosecution or has been declared hostile and
even the P.W. 3, who is sister of the deceased and wife of informant
and P.W. 6, who is father of the deceased has not supported the case
of prosecution. It has further been submitted that though the informant
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has supported the case of prosecution in his evidence in chief,
however, in his cross examination he has stated that he heard about
demand of cycle and watch from others and has further stated that his
sister-in-law was suffering from epilepsy. Similarly, P.W. 2 has also
stated in his examination that he has no knowledge of demand of
dowry and whether there was a difference between the parties with
regard to demand of dowry. Further submission of learned counsel for
the appellant is that in fact the deceased died due to sudden epilepsy
attack and appellant had no role to play in his death and the trial court
without considering all these facts has convicted the appellant under
Section 304B, 498A and 201 of the IPC, which is out and out perverse
and not sustainable in the eye of law.
11. On the other hand, learned counsel for the respondent – State
supported the finding of guilt, recorded by the Trial Court and has
submitted that there are consistent evidence of witnesses that the
deceased died within seven years of her marriage and in the house of
the appellant and the burden is on the appellant to explain the exact
cause of death of the deceased. Further the doctor, who conducted the
post mortem examination of the dead body of the deceased has also
found that the deceased died due to asphyxia and the F.I.R also shows
that there was demand of a cow, bicycle and a watch and for that
appellant used to assault and torture the deceased, as such, there is no
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infirmity in the impugned judgment and conviction of appellant under
Section 304B, 498A and 201 of the IPC is just and proper.
12. In the background of rival contentions of the parties, on perusal
of the evidence of witnesses, it appears that P.W. 1, co-villager, P.W.
3, who is sister of the deceased and wife of informant, P.W. 4, co-
villager, P.W. 5 – mother of the deceased, P.W. 6- father of the
deceased and P.W. 8 – brother of the deceased and P.W. 9, co-
villager, either have not supported the case of the prosecution or have
been declared hostile by the prosecution and as such prosecution case
rests only on the evidence of P.W. 2, who is father of informant and
P.W. 7, who is informant in this case. From the evidence of P.W. 2, it
appears that he has supported the prosecution story so far marriage of
deceased with appellant is concerned. However, his evidence shows
that he does not know as to when the marriage was solemnized and
the deceased Sharda Devi used to live in her Sasural. His evidence
also disclosed that demand of appellant of a cow was fulfilled by the
father of the deceased and he has no knowledge about the demand of
cycle and watch. His evidence further disclosed that he did not have
any knowledge that the deceased Sharda Devi was used to be tortured
as she had no issue. His evidence further shows that deceased Sharda
Devi died in her Sasural and appellant was in his house and as to how
deceased Sharda Devi died, he could not say. However, his evidence
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shows that he is a witness on inquest report. This witness has stated in
his evidence that the dead body was recovered from four kilometers
away from his village from a field. He has also stated that the dead
body was thrown at a distant place with a view to screen the evidence.
His evidence in cross-examination shows that at the time of
occurrence, he was in his house.
13. Evidence of P.W. 3, who is the sister of the deceased and wife
of informant, before her being declared hostile shows that she has
stated in his evidence that Sharda Devi died in her Sasural but how
she died she could not say and she had not seen the occurrence.
14. P.W. 7 is the informant in this case and brother-in-law of the
deceased and he has stated in his evidence that marriage of the
deceased was solemnized with the appellant five years ago and in-
laws have demanded bicycle and watch. His evidence also disclosed
that the Sharda Devi died in her Sasural and he came to know about
the same. His evidence also shows that at 12 „O‟ clock in the night, he
met appellant Lal Babu Chowdhary and others, who disclosed that
deceased Sharda Devi had died, thereafter, he informed the same to
police. However, in his cross-examination, this witness has stated that
there was no demand of dowry by appellant and he had heard about
demand of bicycle and watch from others. His evidence also disclosed
that as the deceased Sharda Devi had no issue, sometime she used to
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behave in insane manner and had tried to commit suicide and she was
also suffering from epilepsy. His evidence also disclosed that he came
to know from the villagers that she died due to epilepsy.
15. P.W. 10 is the Investigating Officer in this case and it appears
from perusal of his evidence that he only submitted charge-sheet in
this case and not even recorded the statements of the witnesses.
16. P.W. 11 is the doctor, who along with other doctors, conducted
postmortem examination on the dead body of the deceased Sharda
Devi and opined that no external injury was discovered on dissection.
The injury detected on dissection in the neck and chest were ante-
mortem caused by hard and blunt substance. In the opinion of doctor,
the cause of death was asphyxia caused by throttling. His evidence
also disclosed that in epilepsy, a person may die due to suffocation or
may not die.
17. On perusal of the entire evidence of prosecution witnesses, it
appears that so far the allegation of demand of dowry and subjecting
the deceased to cruelty is concerned, there is absolutely no evidence
available on record. No doubt prosecution case as per F.I.R is that
there was a demand of cow, cycle and watch but the evidence of P.W.
2 shows that a cow was demanded and that has been fulfilled by the
father of the deceased and he has not disclosed with regard to demand
of other articles. Similarly the evidence of P.W. 7 (informant) in cross
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examination shows that there was no demand of dowry. Further it
appears that the prosecution has not been able to prove that whether
the deceased was subjected to cruelty soon before her death and there
is nothing except general allegation that she was subjected to cruelty
and harassment. No doubt, all the prosecution witnesses are consistent
on the point that the deceased died in her Sasural including the
witnesses, who have been declared hostile and further the evidence of
doctor also shows that cause of death of the deceased was asphyxia
due to throttling and as such, the prosecution has been able to
establish the death beyond normal circumstances. However, for
conviction under Section 304B IPC, the prosecution must establish
that the deceased died within seven years of her marriage and she was
subjected to cruelty soon before her death in connection with demand
of dowry. As discussed above, in this case prosecution evidence is
that she died within seven years of her marriage under abnormal
circumstances but so far evidence of cruelty soon before her death is
concerned, there is absolutely nothing on record. No doubt, the
evidence shows that the deceased died in her Sasural and no proper
explanation has been given by the appellant for her death and there
shall be a presumption under Section 106 of the Indian Evidence Act
but in the present case the appellant has not been convicted under
Section 302 of the IPC and even no charge was framed under Section
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302 of the IPC and since the case is of the year 2003 and fifteen years
have passed since then, therefore, it will not be proper to remand the
matter back to court below to conduct the trial afresh.
18. Considering the facts and circumstances of the case and the
discussions made above, the conviction of the appellant under Section
304B, 498A and 201 of the IPC does not appear to be sustainable.
19. Accordingly, this appeal is allowed. Judgment of conviction
dated 18.08.2003 and order of sentence dated 04.09.2003, passed by
Sri Ram Bilash Rai, the then 5th Additional Sessions Judge, East
Champaran, Motihari, in Sessions Trial No. 199/2002, 26/2002, is
hereby set aside.
20. As the appellant is on bail, he is discharged from liability of
bail bond.
(Vinod Kumar Sinha, J)
sunil/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 04.04.2018
Transmission 04.04.2018
Date