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Lal Babu Chowdhary @ Lal Babu Sahni vs State Of Bihar on 29 March, 2018

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

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