IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.616 of 2015

Arising Out of PS.Case No. -370 Year- 2013 Thana -GORAUL District- VAISHALI(HAJIPUR)

LALA SAH SON OF JINDA SAH, RESIDENT OF VILLAGE – MAL
MATHNA, P.S. – GORAUL (KATHARA O.P.), DISTRICT – VAISHALI.

…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR
…. …. RESPONDENT/S

Appearance:

For the Appellant/s : Mr. Vinod Kumar, Adv.

Mr. Suman Kumar, Adv.

For the Respondent/s : Mr. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 31-07-2018

Appellant, Lala Sah has been found guilty for an

offence punishable under Section 498A of the IPC and sentenced

to undergo R.I. for three years as well as to pay fine appertaining

to Rs.5000/- and in default thereof, to undergo S.I. for one month

additionally with a further direction of set off against the period

having spent under custody during course of trial as provided

under Section 428 of the Cr.P.C. vide judgment of conviction and

sentence dated 28.08.2015 passed by the Addl. Sessions Judge,

Vaishali at Hajipur in Sessions Trial No.431/2014.

2. Asha Devi (PW.1) filed written report on 20.10.2013

disclosing therein that her daughter Hema Devi was married with

Lala Sah, son of Jinda Sah of village-Mal Mathna, P.S.-Goraul,
Patna High Court CR. APP (SJ) No.616 of 2015 2

District-Vaishali about six years ago. Her daughter was being

tortured by her husband Lala Sah and his family members on

account thereof, her daughter had instituted a case against them.

On the intervention of the villagers, the matter was amicably

shorted out whereupon, case was disposed of. Subsequently

thereof, her daughter had gone to her Sasural where her husband

Lala Sah, father-in-law Jinda Sah, brother-in-law (Bhaisur)

Devendra Sah, mother-in-law Girija Devi and sister-in-law

(Gotani) Lalita Devi began to torture in order to procure a

motorcycle as well as rupees five lacs as dowry. Her daughter had

disclosed that his mother is poor and on account thereof, she

could not fulfill their demand. On 19-10-2013 at about 04:30 PM

she received telephonic information from the Sasural of her

daughter with regard to commission of her murder by her

Sasuralwala by administering poison as well as dead body having

been disposed of. After getting information, she along with her son

Dharmendra Sah came at the place of her daughter where she

came to know that all the accused persons have assaulted and

then administered poison causing her murder. Further with the

help of co-villager, namely, Sharwan Sah, Basu Sah and four

others got dead body disposed of.

3. On the basis of the aforesaid written report, Goraul

P.S. Case No.370 of 2013 was registered followed with an

investigation. After concluding the same charge sheet has been

submitted only against the appellant/accused as he was under

custody keeping the investigation pending against remaining of

the accused. Accordingly, trial commenced and concluded in a
Patna High Court CR. APP (SJ) No.616 of 2015 3

manner, subject matter of instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of

the Cr.P.C. is that of complete denial oral as well as documentary

evidence has been adduced in defence.

5. In order to substantiate its case, prosecution had

examined altogether five PWs out of whom PW.1 is Asha De vi,

informant, PW.2-Dhruv Narayan (I.O.)., P.W.3-Shankar Sah, PW.4

Ranjeet Kumar Singh and PW.5-Dharmendra Kumar Sah. Side by

side had also exhibited written report-Ext.1, endorsement over

written report-Ext.1/1, forwarding-Ext.1/2, signature of

Dharmendra-Ext.1/3, formal FIR-Ext.2. Side by side defence had

also exhibited one DW Ram Pravesh, formal in nature and had

exhibited Complaint Petition No.1339/03 as Ext.A.

6. From the record, it transpires that at an initial stage

appellant was charged for an offence punishable under Section

304B/34 IPC, 201/34 IPC vide order dated 10-04-2015. Later on,

the charge was amended and then, he has been charged for an

offence punishable under Section 304B/34 of the IPC, 302/34 of

the IPC, 201/34 of the IPC vide order dated 18-08-2015. From the

judgment impugned, it is evident that learned lower court had

acquitted the appellant for an offence punishable under Section

302/34 IPC, 304B/34 and 201/34 of the IPC but, convicted and

sentenced for an offence punishable under Section 498A of the

IPC and for that, it has been observed by the learned lower court

under para-18 of the judgment that in spite of non-framing of
Patna High Court CR. APP (SJ) No.616 of 2015 4

charge, conviction could be recorded under the minor offence of

the major offence whereunder charge has been framed as provided

under Section 222 of the Cr.P.C.

7. Now, it has to be seen whether the evidence

available on the record did justify the finding recorded by the

learned lower court.

8. Coming to the evidence available on the record, it is

evident that PW.1 is the mother of the deceased while PW.5 is the

brother of the deceased. PW.2 is the I.O. and PW.3 and 4 are co-

villagers of the appellant.

9. PW.3 had stated that the occurrence is about one

and nine months ago. There was quarrel amongst mother-in-law,

daughter-in-law over dowry whereupon, she committed suicide.

Deceased was daughter of Asha Devi and wife of Lala Sah. He had

further stated that wife of Jinda Sah, Lala Sah, Devendra Sah

were quarreling over dowry. Identified the accused. Then was

declared hostile whereupon he was confronted with his previous

statement which he denied. During cross-examination at para-3

he had stated that Lala Sah happens to be separate from his

brothers. The mother-in-law and the daughter-in-law fought over

domestic affair.

10. PW.4 had deposed that the occurrence is about one

year and nine months ago. He was at Muzaffarpur. He had got no

knowledge regarding the occurrence. He had not made statement

before the police and so was declared hostile. During cross-

examination he had stated that Devendra lives separately.
Patna High Court CR. APP (SJ) No.616 of 2015 5

11. PW.5 is the brother of the deceased. He had deposed

that deceased was his sister who was married with Lala Sah, son

of Jinda about 7-8 years ago. After marriage when sister had gone

to Sasural her husband, parents of her husband, Sharwan

Kumar, her sister-in-law began to torture her on the pretext that

as your brother is earning a lot therefore, she should bring Rs.5-

10 lacs. His brother-in-law deserted his sister due to development

of intimacy with his Bhabhi. His brother-in-law had illicit

relationship with his Bhabhi. His sister was being assaulted by

him as she protested. Then, thereafter, a case was instituted.

Thereafter, case was compromised and in the aforesaid

background, his sister was taken away. Lastly Lala Sah, firstly

assaulted her with Lathi and then, caused murder by

administering poison and then thereafter, put the dead body on

fire. He along with his mother gone to police station where her

mother had instituted a case over which, he had also put his

signature (exhibited). During cross-examination he had stated

that meaning of torture means to punish. I.O. had taken his

statement. In para-3 there happens to be contradiction. In para-4

he had stated that at the time of marriage of the sister, he was

aged about 4-5 years. In the case, having instituted by his sister

there was allegation of demand of dowry to a tune of rupees ten

thousand as well as one T.V. In para-5 he had stated that after

compromise, he had gone to the Sasural of his sister but he is

unable to disclose the date and year. Then had said that Chaur

lies 500 steps away from the house of Lala Sah. He had gone to

Chaur. He is unable to disclose the boundary of the place where
Patna High Court CR. APP (SJ) No.616 of 2015 6

funeral taken place. It was duly fenced. Then had denied the

suggestion that his sister was not at all murdered by

administering poison rather, his sister was coming ill since before

as a result of which she died. After amendment of the charge he

was recalled wherein at para-6 he had stated that he received

telephonic information from her Sasural regarding her precarious

condition.

12. PW.1 is the informant. She had deposed that her

daughter Hima Devi was married with Lala Sah about eight years

ago. At the time of marriage she had gifted the articles according

to her means. After marriage when her daughter had gone to her

Sasural, her husband Lala Sah, Devendra Sah, Basu Sah,

Sharwan Sah, Jinda Sah, Vidya Devi, Lalita Devi, Girija De vi

demanded one motorcycle as well as cash appertaining to rupees

five lacs and for that, she was being tortured. They have also said

that in case of non-fulfillment of the same, he will be murdered.

Lastly, her daughter returned back to her place. Then case was

filed. Subsequently thereof, case was compromised. Then, accused

persons took away her daughter and during course of her stay all

the accused persons after tying her hands and legs, administered

poison and lit fire while she was alive. She received telephonic

information whereupon she along with her Samdhini, son gone

there. Chowkidar was also there. He disclosed that she has been

murdered by the accused persons on account of dowry. Then they

have gone to police station where got the written report scribe d by

the Pushpa whereupon she put signature (exhibited). During

cross-examination, at para-2 she had stated that she had dictated
Patna High Court CR. APP (SJ) No.616 of 2015 7

Pushpa and got the written report prepared. She had further

stated that her daughter begotten two sons and a daughter who

are living with their father. Even after death of her daughter, she

met with all the three. In para-3 she had stated that she happens

to be vegetable vendor. Her son-in-law resides Dehri. 1-2 year

after the marriage accused persons began to advance rupees five

lacs and a motorcycle. At para-4 she had further stated that just

one month after marriage accused persons forced her to leave the

place. She was frequently assaulted by the accused persons and

for that panchayati was convened wherein both the parties

participated. In para-5 she had stated that Bara Babu had

informed her on phone. She gave information about two years ago.

Chowkidar had come to inform. She had instituted one case

relating to dowry. This case has been instituted after four years

but again corrected, as he is unable to disclose exact time. Her

daughter used to suffer from ailment before marriage. Then again

corrected. Then she denied the suggestion that her daughter died

of ailment as accused persons have not concealed over their illegal

demand on account thereof, this false case has been filed. On

recall after amendment of charge at apra-6 she had stated that the

officer of the police station had informed her regarding murder of

his daughter.

13. DW.1 has been examined in order to exhibit the

earlier complaint petition wherein the date of marriage has been

shown in the month of May, 2002.

14. On the record, it is apparent that the learned lower

court had rightly held that the alleged death of deceased was
Patna High Court CR. APP (SJ) No.616 of 2015 8

beyond the statutory period of seven years on account thereof,

Section 304B of the IPC is not at all applicable. In likewise manner

there happens to be no evidence regarding murder more

particularly in the background of inconsistency amongst PW.1 as

well PW.5 apart from the fact that they both were not an eye

witness to occurrence. In the aforesaid background, the learned

lower court had acquitted the appellant for an offence punishable

under Section 201/34 of the IPC also.

15. Now coming to propriety of the judgment impugned

relating to Section 498A of the IPC is concerned, it is evident that

not only from the evidence of PW.1 and PW.5 rather PW.2, co-

villager of appellant had also deposed on that very score. It is

needless to say that though there happens to be some sort of

variance while appreciating the ingredients of Section 304B of the

IPC as well as 498A of the IPC but, cruelty is found having the

same meaning. Furthermore, it is crystal clear that Ext.A,

complaint petition having been filed by the deceased at an earlier

occasion on the score of torture having been inflicted upon her for

fulfillment of demand of dowry which ended in compromise. Apart

from this, it is also manifest that though suggestion has been

given to the respective witnesses that deceased died of ailment but

not been substantiated. So, cause is found unexplained.

16. In Kunjabai v. State of M.P. reported in (2016) 15

SCC 608, it has been held:-

“10. However, the High Court was of the
considered view that the evidence on record
proved beyond reasonable doubt that the
Patna High Court CR. APP (SJ) No.616 of 2015 9

appellant subjected the deceased to cruelty
due to non-satisfaction of the demand for
gold bracelets and tape recorder as dowry.
Further, the appellant was the best person
to disclose the relevant facts solely within
her knowledge as to the circumstances
leading to the death of the deceased as she
was present in the house at the relevant
time. While committing the act of self-
immolation, it was natural for the deceased
to cry out in pain and agony, however the
nature and extent of burn injuries suffered
by the deceased gave rise to the inference
that no attempt was made by the appellant
to save the deceased from the burn injuries.
In that view of the matter, the guilt of the
appellant for the offence punishable under
Section 498-A IPC was proved beyond
reasonable doubt. Therefore, the High Court
confirmed the order of conviction passed by
the trial court against the appellant for the
offence punishable under Section 498-A
IPC, but reduced the sentence to
imprisonment for a period of one year.

11. xxx xxx xxx.

12. xxx xxx xxx.

13. xxx xxx xxx.

14. xxx xxx xxx.

15. xxx xxx xxx.

16. After going through the records of
the case including the judgments and
orders passed by the courts below, we are of
the considered view that there is no
infirmity in the well-reasoned judgment of
conviction passed by the High Court for the
offence punishable under Section 498-A IPC
which requires our interference.”

Patna High Court CR. APP (SJ) No.616 of 2015 10

17. That being so, the learned lower court had rightly

found the appellant guilty for an offence punishable under Section

498A of the IPC and for that, the sentence having inflicted, in the

facts and circumstances of the case, is found appropriate. As

such, instant appeal sans merit and is accordingly, dismissed.

Appellant is on bail hence his bail bond is hereby cancelled

directing him to surrender before the learned lower court to serve

out remaining part of sentence within a fortnight failing which the

learned lower court will proceed against him in accordance with

law.

(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.

CAV DATE 10.07.2018
Uploading Date 31.07.2018
Transmission 31.07.2018
Date