IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.463 of 2013
Arising Out of PS. Case No.-44 Year-2011 Thana- KARENDE District- Sheikhpura
1. Dharmendra Mahato, Son Of Late Yamuna Mahato
2. Shakunti Devi alias Durgabati Devi, Wife Of Late Yamuna
Mahato
3. Sushma Devi, daughter Of Late Yamuna Mahato
All Residents Of Sijhuri, P.S.- Karande, District- Sheikhpura,
Bihar
… … Appellant/s
Versus
The State Of Bihar
… … Respondent/s
Appearance :
For the Appellant/s : Sri Jagdish Prasad, Advocate
Sri Bhimsen Prasad, Advocate
For the Respondent/s : Sri Ajay Mishra, A.P.P.
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 30-08-2018
1. The present Appeal has been preferred against the
judgment of conviction of aforesaid three appellants in Sessions
Trial No. 513 of 2012 / TR No. 29 of 2012 ( arising out of
Karande P.S. Case No. 44 of 2011 ) passed by learned Ad-hoc
Additional Sessions Judge – I, Sheikhpura. All the three appellants
by judgment dated – 10.04.2013 were convicted for commission of
offence under Section 498A / 34, 304B of the Indian Penal Code ,
1860 ( hereinafter referred to as the “I.P.C.”) and Section 4 of the
Dowry Prohibition Act, 1961 ( hereinafter referred to as the “D.P.
Act”). By order dated: 11.04.2013 appellant no. 1 – Dharmendra
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Mahato ( husband of the deceased) under Section 304B of the
I.P.C. was sentenced to undergo rigorous imprisonment for life,
whereas, other two appellants namely- Shakunti Devi @ Durgabati
Devi ( mother of appellant – 1 mother -in-law of deceased)
and appellant no. 3 – Sushma Devi (sister of appellant no. 1)
under Section 304B of the I.P.C. were sentenced to undergo
rigorous imprisonment for seven years. All the appellants under
Section 498A / 34 of the I.P.C. were sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs. 1000/- each.
In default of payment they were directed to additionally undergo
imprisonment for three months. Under Section 4 of the D.P. Act all
the three appellants were sentenced to undergo imprisonment for
six months and to pay a fine of Rs. 1000/- each. In default of
payment of fine they were directed to further undergo simple
imprisonment for one month. All the sentences were directed to
run concurrently. The judgment of conviction and sentence was
passed by Sri Vijay Kumar Trivedi, learned Ad-hoc Additional
Sessions Judge – I, Sheikhpura (hereinafter referred to as the “trial
judge”) in Sessions Trial No. 513 of 2012 / TR No. 29 of 2012
( arising out of Karande P.S. Case No. 44 of 2011).
2. Short fact of the case is that on 16.12.2011 at 18.50
Hours (6.50 P.M.) in Emergency Ward of Sadar Hospital,
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Sheikhpura one probationer Sub Inspector of Police Sri Mukesh
Kumar Verma (P.W. 9) recorded fardbyan of Bindu Devi
(deceased)/ wife of appellant no. 1. In the fardbyan the informant
disclosed that her marriage was solemnized with appellant no. 1 –
Dharmendra Mahato, S/o Yamuna Mahato three years back in the
village – Sijhuri, P.S. -Karande, district – Sheikhpura as per Hindu
rites. About six months back after donga she had come to her
husband’s house and with her husband , mother-in-law and father –
in-law led peaceful life, however, two months after donga her
husband , mother-in-law, father-in-law, devar and nanad started
torturing her and compelling her to bring Rs. 50,000/- as dowry on
which she replied that whatever was to be given that has already
been given by her father at the time of marriage and now it was
difficult to make any payment since his father was a poor person.
Due to the said reason repeatedly the informant was being
tortured and compelled to bring money . She further disclosed that
on the same day i.e. on 16.12.2011 which was Friday at about
3.30 P.M. she developed some abdominal pain which was
intimated to her husband, mother-in-law and father-in-law, then
she was threatened that she will be done to death. One hour
thereafter while she was lying on bed with abdominal pain, her
mother- in- law ( appellant no. 2) , father- in- law , nanad , devar
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along with her husband entered into the room and locked the room
from inside. Her husband brought container of kerosene oil and
sprinkled the same over her body, then mother-in-law, father -in-
law, nanad and brother of her husband all caught her and thereafter
her father -in-law lighted machis and threw it on her person. Fire
caught her clothes and she started crying, however, all the accused
persons after locking room from outside fled away. She raised
alarm thereafter neighbourers arrived there and extinguished the
fire. In the meanwhile, her brother – Srikant Mahto (P.W. 4 )
arrived there and with his help she was carried to Sadar Hospital,
Sheikhpura where she was under treatment. She claimed that her
husband – Dharmendra Mahato (appellant no. 1), father -in-law /
Yamuna Mahato ( since died), mother -in-law /Shakunti Devi @
Durgabati Devi (appellant no. 2), brother of her husband-
Sakendra Mahto ( case referred to Juvenile Justice Board ) and
sister of her husband – Sushma Devi (appellant no. 3 ) conniving
with each other with common intention had administered torture
and by putting her on fire tried to kill her. She further stated that
her fardbyan was read over to her by her brother – Srikant Mahto
(P.W. 4) and after finding it correct in presence of Srikant Mahto
she put her right thumb impression. The said fardbyan was also
signed as witness by Srikant Mahto ( P.W. 4). On the basis of the
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said fardbyan on 17.12.2011 at 16.00 hours ( 4.00 P.M.) a formal
F.I.R. vide Karande P.S. Case No. 44 of 2011 was registered for
the offence under Sections 341/342/307/ 498A/ 34 of the I.P.C.
and Sections 3/4 of the D.P. Act against the aforesaid three
appellants and Yamuna Mahato ( father of appellant no. 1) and
Sakendra Mahto (younger brother of appellant no. 1).
3. After investigation, on 10.06.2012 charge- sheet was
submitted against all the five F.I.R. named accused persons for the
offence under Sections 304(B)/34 of the I.P.C. After filing of the
charge -sheet it appears that younger brother of appellant no. 1
Sakendra Mahto claimed juvenility, and as such, his case was
referred to the Juvenile Justice Board. Thereafter, on 26.06.2012
learned Chief Judicial Magistrate , Sheikhpura took cognizance
of the offence and on 26.06.2012 the case was committed to the
court of Sessions, and as such, it was numbered as Sessions Trial
No. 513 of 2012. On 30.07.2012 charge was jointly framed
against the remaining four accused persons which includes the
aforesaid three appellants under Section 498A, 302, 304B of the
I.P.C. and Section 3 /4 of the D.P. Act. Thereafter, evidence
commenced, however, due to death of accused – Yamuna Mahto
( father of appellant no. 1 ) on 01.08.2012 his case stood abated.
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4. During the trial to establish its case from the
prosecution side altogether ten witnesses were examined. P.W. 1
( Parmeshwari Devi ), P.W. 2 ( Sita Devi) and P.W. 3 (Janki Devi)
are co-villagers of the accused persons. P.W. 4 ( Srikant Mahto)
though in the fardbyan was described by the deceased
( informant ) as her brother, in his evidence has stated as if he was
distant relative of the informant, who proved his signature on the
fardbyan, which was marked as Ext. 1. This witness as well as
P.W. 5 -Vikash Kumar [ Son of P.W. 4 -Srikant Mahto] were
declared hostile. P.W. 2 ( Sita Devi ) was also declared hostile.
P.W. 6 -Soma Devi [ mother of the deceased ] though deposed
entirely contrary to the prosecution case, she was not declared
hostile. Similarly, P.W. 7 – Krishna Nandan Mahto ( father of the
deceased) has also not supported the prosecution case, he too was
not declared hostile. P.W. 10 ( Dr. Anil Kumar ) who was posted
on 20.12.2011 in the Patna Medical College and Hospital had
conducted post-mortem examination on the dead body of the
deceased. P.W. 9 (Mukesh Kumar Verma) who had recorded the
fardbyan of the informant (deceased) had proved the fardbyan,
which was marked as Ext. 2/1 and Bishweshwar Prasad Yadav
( P.W. 8) was the Officer- in-charge of Karande Police Station on
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the date of occurrence and he is the Conducting Officer who
submitted charge-sheet also.
5. After completion of prosecution evidence, on
01.02.2013 statement of accused persons under Section 313 of the
Code of Criminal Procedure, 1973 ( hereinafter referred to as the
“Cr.P.C.”) was recorded in which appellants claimed to be
innocent and also claimed that at the time of occurrence they were
not present at the place of occurrence. From the defence side
altogether six witnesses were examined to substantiate that the
appellants at the time of occurrence were not present at the place
of occurrence. A defence has been taken that deceased on her
marriage with appellant no. 1 was not satisfied and this was the
reason that she was not willing to come to her husband’s house and
by force she was asked to reside with her husband, and thereafter,
due to such reason, she had committed suicide by putting herself
on fire.
6. Sri Jagdish Prasad, learned counsel, assisted by Sri
Bhimsen Prasad, learned counsel for the appellants after referring
aforesaid evidences has argued that all the appellants have been
held guilty and sentenced in a case of no evidence. He submits
that of-course initially prosecution had come out with a case that
the case was based on dying declaration of the deceased but on
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perusal of the fardbyan itself vis-à-vis post-mortem examination
report of the deceased it appears that fardbyan appears to be not
believable. It is evident that in a case of burn injury having about
95% injury the injured was in any event not in a position to make
any statement what to talk of detailed description which has been
shown in the fardbyan of the deceased. He submits that the doctor
who conducted post-mortem examination on the dead body of the
deceased was examined as P.W. 10 and in the post- mortem
examination he had noticed that the deceased was having 95 %
burn injury. Sri Jagdish Prasad, learned counsel for the appellants
has argued that in a case of more than 70% burn injury it would be
difficult for anyone to make any statement whereas in the present
case deceased had received 95 % burn injury and in such injured
condition it was impossible for her to make such specific
description in the fardbyan as to when she was married with
appellant 1, for what time she remained with her husband and
how she was tortured and was forcibly burnt. It has also been
argued that though fardbyan of the injured (deceased) was shown
to be recorded in the Sadar Hospital, the Investigating Officer had
not bothered to get any certification from the doctor in the
Emergency Ward as to whether the injured was in a condition to
make such statement or not . He submits that it is settled law that
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in absence of certification of doctor in a case of recording
fardbyan in hospital the said fardbyan may not be treated as dying
declaration. He submits that if the fardbyan in the case is not
treated as dying declaration, there is nothing in the case to show
that the appellants were directly or indirectly involved in the case,
rather it was a case of voluntary suicide by the deceased without
any provocation from the appellants side.
7. Sri Jagdish Prasad, learned counsel for the appellants
has argued that in the case mother and father of the deceased
were the best persons to depose as to whether the victim before the
occurrence had ever informed them regarding torture for non-
fulfillment of dowry or not. He submits that on the contrary
mother and father both have deposed that their daughter was not
happy on her marriage with appellant no. 1 and she was not
willing to go to her husband’s house. It has also come in their
evidence that they put pressure on the deceased to reside with her
husband and within few days when she was left to her husband’s
house she voluntarily committed suicide. Besides this, it has been
argued that the neighbourers of the appellants have also come
forward to depose but they too had stated that the wife of
appellant no. 1 herself had put fire on her and committed suicide.
Sri Jagdish Prasad, learned counsel for the appellants has further
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argued that at best the so-called brother who had put signature on
the fardbyan was the best person to state as to whether the
deceased had made any such fardbyan or not, however, in the
present case the said person i.e. Srikant Mahto was examined as
P.W. 4 and to the reasons best known to the prosecution he was
declared hostile and he has only identified his signature on the
fardbyan, which was marked as Ext. 1. On aforesaid grounds it
has been argued that the learned trial judge in a case of no
evidence has incorrectly passed judgment of conviction and
sentence, which requires to be set aside.
8. Sri Ajay Mishra, learned Additional Public Prosecutor
tried to defend the prosecution case, however, he was not in a
position to satisfy the court as to whether in a case of 95% burn
injury the informant (deceased) was in a position to give such
descriptive fardbyan or not, but he insisted that fardbyan is
virtually the last word of the deceased, and as such, the learned
trial judge relying on the fardbyan has passed judgment of
conviction and sentence, which may not be interfered with.
9. Besides hearing, learned counsel for the parties, we
have minutely examined entire evidences available on record and
after going through the same we are prima facie satisfied that in
view of aforesaid evidences there was no reason for the learned
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trial judge to pass judgment of conviction and sentence. We have
already discussed in detail as to what informant ( deceased ) had
stated in her fardbyan. On going through the fardbyan it is difficult
to rely on the prosecution case that the said fardbyan was given by
the injured who was having 95% burn injury. It is not a case that
in hospital few words were stated by the injured and she
disclosed regarding involvement of the accused persons but in the
fardbyan right from the very beginning it has been described as to
when marriage of injured (deceased ) was performed with
appellant no. 1, when after ruksaddi she went to the house of her
husband, what torture was administered and what amount was
demanded. All those things create serious doubt in the mind of the
Court as to whether in such injured condition one can make
such detailed statement. Moreover, we are in agreement with
the submission of learned counsel for the appellants that in the
hospital once fardbyan of injured was being recorded certification
by doctor was necessary. Of- course in absence of such
certification entire prosecution case may not be brushed aside, but
in view of the peculiar facts and circumstances of the present case
non-availability of certification by doctor also creates some doubt.
Even P.W. 4 ( Srikant Mahto ) in the fardbyan was shown to be
brother of the injured (deceased ) however at the time of evidence
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P.W. 4 has stated otherwise, which indicates that he was distantly
related with the deceased. This witness i.e. P.W. 4 who is the only
witness to the fardbyan has also not supported the prosecution
case. In absence of any corroboration by the witness to the
fardbyan certainly the said fardbyan cannot be termed as dying
declaration.
10. In the case P.W. 1 (Parmeshwari Devi) – co-villager
of the appellants has accepted that deceased as a co-villager was
her daughter- in- law and her marriage was solemnized with
Dharmendra Mahato ( appellant no. 1 ). She in paragraph -2 has
stated that the in -laws of the deceased had gone outside for their
work and in the meanwhile Bindu Devi ( deceased) had put
herself on fire. She further stated that she was unaware as to
whether in between husband and wife there was any dispute or
not. This witness examined as prosecution witness though had not
supported the prosecution case, was not declared hostile by the
prosecution. Meaning thereby that evidence of this witness may
not be ignored particularly on the point that deceased herself had
put herself on fire and at the time of occurrence none of the
appellants were present at the place of occurrence.
11. P.W. 2 (Sita Devi) – one another co-villager of the
appellants deposed in paragraph -2 that deceased was not willing
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to reside with her husband and 10-15 days back she had come to
her in-law’s house. In paragraph -3 she further stated that when the
in-law’s of deceased were not in house Bindu Devi put herself on
fire. Due to such burn injury she was not in a position to speak.
This witness was thereafter declared hostile as requested by
learned Public Prosecutor.
12. P.W. 3 (Janki Devi) – another co-villager of the
appellants has reiterated that the deceased herself had put herself
on fire. She further indicated that about 10-15 days back deceased
had come to her in-law’s house and she was not liking her in-
law’s house and this was the reason that by sprinkling kerosene oil
she ignited machis. This witness has also not been declared
hostile.
13. Similarly, P.W. 4 (Srikant Mahto) whose presence
has been shown as per fardbyan since he put his signature on the
fardbyan and informant (deceased) in her fardbyan had also
disclosed that after injury she was carried by this witness and
others to hospital, has not supported the prosecution case and he
also reiterated the same stand which was taken by other witnesses
that victim herself had tried to commit suicide. This witness has
identified his signature on the fardbyan which was marked as Ext.
1. This witness was declared hostile.
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14. P.W. 5 (Vikash Kumar) is none else but the son of
P.W. 4 (Shrikant Mahto) and he too was declared hostile.
15. Now the most important witnesses were the mother
and father of the deceased who were examined as P.W. 6 (Soma
Devi ) and P.W. 7 ( Krishna Nandan Mahto) . In paragraph -2 of
the evidence of P.W. 6 she stated that in the in-law’s house the
deceased with her husband remained only for fifteen days and
thereafter by putting herself on fire she died in Government
Hospital, Patna. In paragraph -4 she stated that Bindu (deceased)
was not interested to go to her in law’s house and with a view to
maintain social image she had compelled her to go to her in- law’s
house. She further reiterated that her daughter was not liking her
husband and this was the reason for the occurrence. P.W. 6 was
not declared as hostile witnesses.
16. Father of the deceased- P.W. 7 (Krishna Nandan
Mahto) in his evidence in paragraph – 2 has stated that his daughter
had never intimated him as to whether anything had ever
happened against her in her in- law’s house. In paragraph -13 of
his cross- examination he stated that before Police at Patna and
Sheikhpura he had given statement that his daughter was not liking
her husband nor she was willing to go with him. In paragraph -14
he stated that by force to save social image he sent his daughter
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and this was the reason that she put herself on fire. In paragraph –
17 of his cross -examination he further stated that his daughter
had informed him that she was not willing to continue relation
with her husband . In paragraph – 18 of the cross -examination he
while identifying all the four accused persons which includes the
aforesaid three appellants stated that they had not burnt his
daughter. This clearly indicates that it was not a case of dowry
death.
17. At this juncture it would be necessary to incorporate
the evidence of Dr. Anil Kumar ( P.W. 10 ) who conducted post-
mortem examination on the dead body of the deceased. He had
proved the post -mortem examination report, which was marked as
Ext. 3. On 20.12.2011 this witness was posted in P.M.C.H. and on
the same day he conducted post -mortem examination on the dead
body of the deceased which was conducted at 3.30 P.M. on
20.12.2011 and in the post-mortem examination he noticed the
following facts:-
“External finding:- She was thin built. Rigor mortis present all
over body. No sign of decomposition. Fooly’s IV Cells , in-
citic and intravenous eathalen right foot.
Scalp hair sinerd and bandaged burn wound found as
detailed in para below.
On removal of bandage, anti-mortem burn wound was
found all over body, both upper limb, both lower limb,
neck on anterior and posterior of surface and face except
part of both sole and (all together 95% burn). Burn was
epidermal to dermal in thickness.
Internal finding on dissection:-
Cranial and spinal canel:- Maninges conjusted.
Thorax:- Lung both congested.
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Heart:- Right side chamber contained blood and left side
empty.
Abdomen:- Liver, spleen and kidney all congested.
Stomach:- Yellow color fluid and its mucosa was normal.
Urinary bladder:- Empty and uterus N.A.D. (no abnormality
detected).
Opinion:-
I. Cause of death- ante-mortem burn and its complication.
II. Time elapse since death- 06 to 24 hours approximately ”
In his cross -examination in paragraph – 5 he stated that
in case of 40 % burn injury also death can be caused, however, in
his evidence as well as on examination of the post-mortem
examination report it is evident that dead body was having 95 %
burn injury.
18. P.W. 9 (Mukesh Kumar Verma) had only recorded
fardbyan of the deceased and he proved the fardbyan, which was
marked as Ext. 2/1.
19. P.W. 8 (Bishweshwar Prasad Yadav) on the date of
occurrence was posted as Officer – in – Charge in Karande Police
Station and he had drawn the formal F.I.R., which was marked
Ext. 2. He conducted investigation and he had also submitted
charge-sheet. In his evidence he has stated that after the occurrence
he visited the place of occurrence, however he did not notice any
smoke nor smell of kerosene oil at the place of occurrence. On
going through the evidence of P.W. 8 we are of the opinion that in
such cases particularly in case of burning this should not have
been the approach of the Investigating Officer to conduct
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investigation in such a manner. Moreover, on examination of the
evidence of P.W. 8 ( Investigating Officer) it is difficult to come to
a conclusion as to what was the actual place of occurrence.
20. In defence in the statement of the appellants which
was recorded under Section 313 of the Cr.P.C. they had taken the
same stand that at the time of occurrence they were not present.
This fact has also been corroborated in the defence evidence. In
the case from the defence side six witness were examined, namely:
Rajendra Mahto ( D.W. 1), Kapildev Mahto ( D.W. 2), Shibu
Mahto ( D.W. 3), Shanti Devi ( D.W. 4), Mushtaque Ansari ( D.W.
5) and Arun Kumar ( D.W. 6).
21. Normally, in a criminal trial it is not necessary to
place much reliance on the evidence of defence witnesses but in
view of peculiar facts and circumstances of the present case
certainly we may lend some reliance on defence evidence. Even if
for the time being we ignore the defence evidence on examination
of prosecution evidence we are satisfied that prosecution has
miserably failed to establish its case beyond all reasonable doubt,
and as such, it is fit a case for interfering with the judgment of
conviction and sentence. Accordingly, judgment of conviction
dated -10.04.2013 and sentence dated : 11.04.2013 passed by Sri
Vijay Kumar Trivedi, learned Ad-hoc Additional Sessions Judge –
Patna High Court CR. APP (DB) No.463 of 2013 dt.30-08-2018
18/18I, Sheikhpura in Sessions Trial No. 513 of 2012 / TR No. 29 of
2012 ( arising out of Karande P.S. Case No. 44 of 2011 ) is
hereby set aside.
22. The Appeal is allowed.
23. In this case appellant no. 2 and 3 are on bail, and as
such, they are discharged from liability of their bail bonds. So far
appellant no. 1 is concerned, he is in custody and since judgment
of conviction and sentence has been set aside, it is hereby
directed to release him forthwith, if not required, in any other case.
24. The Appeal stands allowed.
(Rakesh Kumar, J)
( Arvind Srivastava, J)
praful/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 06-09-2018
Transmission Date 06 -09-2018
