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Asha Devi & Anr. Vs. State Of Bihar on 22 July, 2009

Asha Devi & Anr. Vs. State Of Bihar on 22 July, 2009Bench: Harjit Singh Bedi, J.M. Panchal

C RI MIN A L AP P E L L A T E JU RIS DICTIO N

C RI MIN A L AP P E A L N O. 296 O F 2005

AS H A D E VI & A N R. .. AP P E L L A N T(S) vs.

ST A T E O F BIHA R .. R E S P O N D E N T( S) WIT H

C RI MIN A L AP P E A L N O S. 297 O F 2005 A N D 1256 O F 2007 O R

D E R

These appeals arise from the following facts:

Sudhia Devi deceased was m arried with Hare Ra m Jha about 3-4 years before the incident happened and was pregnant at the time of the occurrence. O n 22 nd Septe m b er, 1997. P W.5 – M eena Devi, Sudhia Devi’s aunt, received information that Sudhia Devi was being beaten by her husband and his parents and sisters. M eena Devi along with her relatives rushed to Sudhia Devi’s ho m e and was told by her m other-in-law M eera Devi and her daughters Asha Devi and Mithilesh Devi that she was in the process of delivering a child. M ee na Devi, ho w ever, insisted that she should be allowed to see Sudhia Devi on w hich she was restrained from doing so by Asha Devi and Mithilesh Devi and was also threatened with dire consequences if she tried to enter the roo m. A heated argu m e nt ensued between the parties

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and the resultant noise attracted so m e residents of the village. M eena Devi ho w ever m a n a ge d to enter the roo m and having done so found the dead body of Sudhia Devi lying in the courtyard. M eena Devi then rushed to the police station and lodged the FIR. On the co m pletion of the investigation the accused Hare Ra m Jha, Sudhia Devi’s husband, Durga Nand and M eena Devi, his parents & Asha Devi & Mithilesh Devi, his sisters were charged for offences punishable under Sec.304-B and 498A of the Indian Penal Code and brought to trial.

The prosecution in support of its case relied upon the evidence of P W.5- M eena Devi and several other persons w h o had acco m p a nied her to the house of the deceased on the crucial day and also on the evidence of Ra m Saran Mishra-P W.11 the father of the deceased, P W.13-Jeevo Devi- her m other, and P W.15-Phoolo Devi, her M o u si. The prosecution also produced in evidence P W.16 Dr. Dhrub Ku m ar Dheeraj w h o had conducted post-m orte m on the dead body of the deceased and P W.17-B.P.Singh, the Investigation Officer. In the course of the trialP W.1-10 i.e.M eena Devi and all the others w h o had rushed to the rescue of Sudhia Devi on the crucial day were declared hostile. A letter Ext. P.2 written by the deceased to her m other on 25/6/1995, alleging m altreatment was also produced in evidence by the

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prosecution. The trial court relying upon the evidence of P W.11, P W.13 an m d P W.15 and the docu m e nts w hich had been produced on record, convicted the accused under Sec.304-B and Sec.498-A of the IPC and sentenced Asha Devi, Mithilesh Devi and M eera Devi to seven years R.I. under Sec.304-B and Durga Nand Jha and Hare Ra m Jha – the father-in- law and the husband of the deceased respectively, to undergo imprison m e nt for life.

The accused thereupon filed an appeal in the High Court w hich has been dismissed by the impugned judg m e nt dated 23/4/2004. Three appeals have been filed in this Court: Criminal Appeal No.296/2005 by Asha Devi and Mithilesh Devi, Criminal Appeal No.297/2005 by M eera Devi and 1256/2007 by Durga Nand Jha – father- law of the in-

deceased, w hereas Hare Ra m Jha has filed no appeal. All these m atters are being disposed of by this judg m e nt.

The learned counsel for the appellants has, at the very outset, argued that as per the facts on record, a case under Sec.304-B of the IPC was not spelt out as there was no de m a n d for do wry soon before the death w hich was a sine qua non for the applicabilityof that Section. On facts, the learned counsel has brought to our notice that the m arriage had taken place in the year 1993 and the death had occurred on 22/9/1997 and even if Ext. P.2 w hich was the primary piece of evidence on record, was taken into consideration, this too had been written on 25/6/1995 w hich was -4-

about two years and three m o nths before the death and such as this could not form basis of the conviction. He has also sub mitted that in any case there was no evidence to connect the accused, m ore particularly Asha Devi, Mithilesh Devi and M eera Devi, with the incident and that in any case the sentence awarded to Durga Nand Jha was excessive as it was the settled position that in a case of conviction under Sec.304 seven years R.I. was the nor m al rule with a higher sentence being awarded in exceptinal cases. For the last sub mission reliance has been placed upon the judg m e nt He m Chand vs. State of Haryana in 1994 (6) S C C 727 The learned counsel for the State has, ho w ever, pointed out that a clear finding of fact had been recorded by the two courts below on an appreciation of the evidence and the fact that the deceased had m et an unnatural death and had been tortured prior to the strangulation indicated that all the accused had been involved in the incident. She has brought to our notice the evidence of the Doctor – P W.16 w h o deposed of epidermal burn injuries 4" x 3" x 3 x 2" on the upper part of the abdo m e n and contusions on the chest wall in an area of 7" x 3" and observed that ultimate cause of death was trau matic asphyxia and strangulation and that the m ark of hanging was post m orte m in nature. O n internal exa mination it was found that upper lobes of both lungs were bruised and other internal organs were congested. It

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is also clear from the post-m orte m report that a female foetus of about 36 weeks was also found in the dead body. She has accordingly urged that instead of presenting a case of m urder, the accused have already been dealt with in a very light m a n n er. She has also e m p h asized that the w ords `soon before the death’ occurring under Sec.304-B could not be m e c ha nically applied and the chain of circu mstances and the conduct of the accused were extremely relevant factors in evaluating the evidence in a case under Sec.304-B, m ore particularly,on account of the presu m ption laid against the accused by virtue of Sec.113-B of the Evidence Act. W e have heard learned counsel for the parties and have perused the record. At the very outset we m u st observe that a perusal of the statements of P W s.11 and 15 w h o are father and m other of the deceased respectively,do not sho w any involve me nt of Asha Devi and Mithilesh Devi – two of the sisters- law. Even a perusal of the letter – Annexure P.2 in-

does not indicate any cruelty on their part.As a m atter of fact,ithas been brought to our notice by the learned counsel for the appellants that Mithilesh Devi had been m arried in the year 1976 and Asha Devi in 1979 and they were living in their m atrimonial ho m e s at so m e distance from the village in w hich the incident happened.

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W e, therefore, find that there is absolutely nothing to connect these two accused with the incident. Criminal Appeal No. 296/2005 m u st, therefore, to our mind be allowed. Asha and Mithilesh are ordered to be acquitted. The evidence against the other accused ho w ever is un- exceptional. M eera Devi is the m other-in-law and Durga Nand Jha is the father- law and Hare Ra m Jha-the husband. Ithas co m e in the evidence in-

that the deceased was being harassed by these three persons for having brought inadequate do wry and repeated de m a n d s were m a d e for a T.V. set etc. and further that a su m of Rs.51,000/- had been given after the m arriage pursuant to a de m a n d. The learned counsel for the appellants has, ho w ever, sub mitted that as a Panchayat had been organized to sort out the dispute, the best evidence in this case w o uld have been the appearance of so m e m e m b ers of the Panchayat to sho w that such a proble m had arisen. Itis true that ifa statement from a Panchayat m e m b er had co m e on record, the case of the prosecution w o uld be strengthened but this o mission w o uld not m e a n that the evidence available was insufficient to record a conviction, m ore particularly, in the back drop of Sec.113-B of the Evidence Act.

We also find from Ext. P.2 referred to above that the primary villain was the m other in law M eera Devi and that Her husband and son were in fact acting as tools at her behest.

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M oreover, from a reading of Ext. P.2 with the statements of ocular evidence it appears that the de m a n d s had been m a d e over for a period of time. The presence of burn m arks on the abdo m e n of the deceased indicate torture and cruelty m eted out to the deceased even on day w he n she m et her death. M oreover, as already observed above, from the doctor’s evidence it transpires that the deceased was first strangulated, and, thereafter (to ca m o uflage the cause of death) she had been hanged in the bedroo m to m a ke it look as a case of suicide. It has co m e in the evidence of P W.17, the I.O. B.P.Singh, that he had entered the roo m to find the dead body hanging from the roof. In this view of the m atter and keeping in mind the presu m ption under Sec.113-B of the Evidence Act, we find absolutely no m erit in the other two appeals. The appeals of M eera Devi and Durga Nand Jha (Crl.A.Nos. 297/2005 and 1256/2007 respectively),are accordingly, dismissed. W e are told that M eera Devi is on bail. She shall be taken into custody forthwith to serve out the remaining period of sentence.

…. . . . ….. . . . . . . .

. . . . . . . . . . . .J

(HA RJIT SIN G H B E DI)

…. . . . . . . . . . . . . . .

. . . . . . . . . . . . . .J

(J.M. PA N C H A L)

Ne w Delhi,

July 22, 2009.

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