SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Kalawati Devi vs State Of Bihar on 7 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.447 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BUXAR

Kalawati Devi, wife of Prem Jee Mahto, resident of village Koran Sarai, P.S. Koran
Sarai, District Buxar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
with

Criminal Appeal (SJ) No. 481 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BUXAR

Umesh Mahto, son of Prem Jee Mahto, resident of village Koran Sarai, P.S. Koran
Sarai, District Buxar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

(In both the appeals)
For the Appellant/s : Mr. Rajesh Kumar Sharma, amicus curiae
For the Respondent/s : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 07-08-2018

Since both the appeals arise out of the common judgment

and order, they have been heard together and are being disposed of by

this common judgment.

2. On repeated calls, nobody appears on behalf of the

appellants in both the appeals to argue the matter, as such Mr. Rajesh

Kumar Sharma, Advocate has been appointed as amicus curiae to

assist this Court.

3. Appellant Kalawati Devi in Cr.Appeal No. 447 of 2003

and appellant Umesh Mahto in Cr.Appeal No. 481 of 2003 have been
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

2/8

convicted under Sections 307 and 498A of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for five years and one

year respectively in Cr.Appeal No. 447 of 2003 and 10 years and one

year respectively in Cr.Appeal No. 481 of 2003 by the judgment dated

6.8.2003 and order dated 7.8.2003 passed by Sri Anil Kumar Verma,

the then District and Sessions Judge, Buxar in Sessions Trial No.58 of

2002.

4. Prosecution case as per fardbeyan of Subhanti Devi (PW

4), wife of Umesh Mahto, appellant, in short, is that she was married

to accused Umesh Mahto five years ago from the date of occurrence

and her Gauna took place in the preceding year and she was residing

in her sasural. Further prosecution case is that her husband and

mother-in-law used to ask her to bring a she buffalo from her naiher

and when protested, she was used to be assaulted by accused persons

and accused persons also intended to second marriage of accused

Umesh Mahto. It is alleged that on 22.11.2001 on the plea of

treatment at Buxar, she was boarded in a bus at 3 P.M. near village

Koransarai bus stand and they arrived at Buxar and after descending

from the bus, the accused persons took her to Ganga bridge on the

plea of showing the bridge to her and by that time they reached over

the bridge and it was almost dark and she was asked to see the river

Ganges and when she was looking towards river Ganges, her mother-

in-law Kalawati Devi pressed her neck and her husband lifted her legs

and they threw her in river Ganges. Further prosecution case is that
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

3/8

when she came on surface she raised alarm, some fishermen who were

fishing on the boat heard the alarm and rescued her and brought her

on their boat and she was taken to the bank of river where with the

help of the villagers, she was taken to a nearby Shivala of village

Ahirouli where arrangement for fire was made to give heat to the body

of victim lady and after sometime she gained her consciousness and

then she disclosed her name to the boatman and villagers assembled

and narrated the incident to them that she was thrown in river Ganges

by accused persons and thereafter she was taken to the house of

village Chaukidar where she remained during night and in the next

morning Chaukidar took her to Buxar (Ind) Police Station where at

11.20 A.M. her fardbeyan was recorded by S.I. Ram Bahal Singh of

Buxar (Ind) Police Station.

5. On the basis of aforesaid fardbeyan, Buxar (Ind) P.S.Case

No. 244 of 2001 was registered. After investigation police submitted

charge sheet, cognizance of the offence has been taken and after

commitment the case ultimately traveled to the file of Sri Anil Kumar

Verma, the then District and Sessions Judge, Buxar for trial and

disposal.

6. In order to substantiate its case, the prosecution has

examined altogether six witnesses, they are PW 1 Ganesh Mallah, PW

2 Brij Bihari Paswan, PW 3 Budhan mahto, PW 4 Subhanti Devi, PW

5 Satendra Singh and PW 6 Deoraj Manjhi, I.O., apart from that Ext.1

is fardbeyan and Ext.1/1 is formal FIR. It further appears that PW 1
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

4/8

Ganesh Mallah, who is said to have rescued the lady from river, has

been declared hostile as he has not supported the prosecution case,

PW 2 Brij Bihari Paswan is Chaukidar, who has informed the police,

has also been declared hostile and it appears that the case is based on

the evidence of remaining witnesses, PWs 3 to 5.

7. Defence of the accused persons is that the victim lady was

suffering from disease and tried to commit suicide and as such they

have falsely been implicated in this case.

8. Learned trial court on conclusion of trial has convicted the

appellants under Sections 307 and 498A IPC and sentenced them as

stated above.

9. Being aggrieved by the impugned judgment and order the

appellants in both the appeals have preferred this appeal.

10. Contention of learned amicus curiae is that the conviction

is based only on the evidence of PWs 3 to 5 and PWs 3 and 5 are not

eye-witnesses to the occurrence, rather PW 4 is the sole eye-witness

to the occurrence and on perusal of evidence of PW 4 it appears that

though she has supported the prosecution case in her evidence in chief

but in her cross examination she has stated that whatever her father

(PW 3) has stated, she has stated in her evidence in court and that

clearly shows that her testimony is not free from reasonable doubt.

Further her evidence in cross examination shows that she was fearful

of water and light and also suffered with loss of sleep, etc. and further

stated that she was residing with her father for the last five years and
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

5/8

if her evidence is to be believed, it discloses that at the time of

occurrence, she was living with her father and her evidence in cross

examination further disclosed that she after the occurrence became

unconscious and after four days she regained her consciousness which

creates doubt about the genuineness of fardbeyan as fardbeyan has

been recorded on 23.11.2001, i.e., just one day after the occurrence

and, as such the impugned judgment suffers from inconsistencies and

infirmities and the evidence of PW 4 does not appear to be reliable

and trustworthy but in spite of that learned trial court has convicted

the appellants under Sections 307 and 498 A IPC which does not

appear to be just and proper.

11. On the other hand, learned counsel for the State has

defended the judgment on the ground that evidence of PW 4 clearly

disclosed that she was drown in river Ganges and she was saved by

the fishermen and thereafter she lodged the fardbeyan. Her evidence

also shows that there was demand of she buffalo from her by the

accused persons and though PWs 3 and 5 are not eye-witnesses to the

occurrence but their evidence supports the drowning of the informant

by appellants and as such the conviction of the appellants under

Sections 307 and 498A IPC appears to be just and proper and does not

require any interference by this Court.

12. Having heard both sides and on perusal of the evidence,

as discussed above, it appears that PWs 1 and 2 have been declared

hostile and evidence of PW 1 shows that he rescued the lady from
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

6/8

river Ganges and taken her to Shivala and thereafter he went for

fishing and he has been declared hostile and PW 2 is Chaukidar, who

informed the police and has been declared hostile and he has further

stated that fishermen saved the girl and he has also stated the girl has

not disclosed anything else. PW 3 is father of PW 4 and his evidence

shows that about six years ago her daughter was married with

appellant Umesh Mahto and they were demanding buffalo and

thereafter they have taken her to Ganga bridge on the pretext of her

treatment and they threw her in the river of Ganges and when he

came to know about the incident he informed the police and her

daughter disclosed that her mother-in-law and husband used to assault

her and had thrown her into river Ganges by taking her to Ganga

bridge. This witness has been cross examined and in his cross

examination he has admitted that he had not seen the occurrence and

he has also stated that her daughter has not written any letter to him

about her complaint. This witness has come with a new story that

poisonous injection was also given to her and his daughter was

suffering from dogbite and for that injunction was given. PW 5 is

brother-in-law (jija) of PW 4, informant and his evidence disclosed

that informant was not well and her husband has taken her to Buxar

for treatment and on the next day her family members came and they

disclosed that she was severely assaulted and caused her death and her

dead body was cremated by them. However, I find that no such story

has been given by PW 3, father of the informant. On the other hand,
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

7/8

evidence of PW 4 in her cross examination shows that she does not

understand the court queries and not answering the question in proper

manner and her evidence in chief discloses that whatever she has

stated in her evidence, is based on the instruction of her father PW 3

and that shows that her evidence is not free from embellishment. Her

evidence further shows that she regained her consciousness after four

days of the occurrence and if it is believed to be true, the fardbeyan

does not appear to be believable as fardbeyan was recorded just after

one day of the occurrence. Similarly she has stated that for the last

five years she was residing with her father and she was deposing in

the year 2002. All the above discrepancies in the evidence of PW 4

create a serious doubt about the credibility of PW 4, who is sole eye-

witness to the occurrence. PW 5 is the I.O. in this case and he has

submitted charge sheet also. Considering the evidence of PW 4, the

sole eye-witness, the same does not inspire confidence and it is not

free from inconsistencies and infirmities. However, learned trial court

has convicted the appellants on the basis of the testimony of PW 4,

even though the court has found that she is a rustic lady and she does

not understand the court question.

13. In view of the discussions made above, the prosecution

has not been able to prove its case against the appellants beyond all

shadow of reasonable doubts. Hence, the appellants are entitled to

benefit of doubt.

14. Accordingly, both the appeals are allowed. The
Patna High Court CR. APP (SJ) No.447 of 2003 dt.07-08-2018

8/8

impugned judgment and order are set aside. As the appellants are on

bail, they are directed to be discharged from the liabilities of their bail

bonds.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 13.8.2018
Transmission 13.8.2018
Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation