Jethu Mahto and ors. Vs. State of Bihar - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 3. the prosecution case in brief is that sudhir chandra mahto gave a fardbeyan on 7.9.1994 at 11.30 hours near old well situated towards east of the house of jethu mahto stating inter alia that on 6.9.1994 at about 2 p. he learnt that dead-body ofhis sister is lying in the well. he is a witness to the inquest report as well as on the fact. learned counsel further pointed out that there is much finding in the evidence of pw 5 (doctor) that binita was first murdered and then thrown into the well, but learned court below has come to such a finding. he has come to say that in his presence dead body of a woman was taken out from the well and the well is adjacent to the house of appellant jethu mahto and the dead body was that of binita kumari, who happened to be the wife of barun mahto. he has stated that sudhir mahto (pw 3) informed him that his sister has been murdered and thrown in the well. he went to the place of occurrence and saw the deadbody of binita in the well. the dead body was taken out from the well. he has further stated that the well is adjacent to the house of appellant jethu mahto. he again went to the sasural of his sister on 7.9.1994 and karam chandmahto of that village told him that the dead body of his sister is floating in the well. he saw the dead body of his sister in the well adjacent to the house of appellant jethu mahto. according to him, place of occurrence was abandoned well situated at a distance of about 30 yards from the house of appellant jethu mahto. the well was very deep and there was water in the well. the dead body was recovered from this very well. he has further stated that the well was in a neat and clean place but water was not utilized for drinking purposes and that well was situated on the land of jharia raja. it is also an admitted fact that her dead body was recovered from the well and she died in an unnatural circumstance. her dead body has been recovered from a well lying near the house of appellants. stomach had been found empty, which means that there was no water in the stomach and it also shows that she did not die due to drowning in the well but she was first murdered and there after her dead body was thrown in the well, as a result of which no water was found in the stomach. from the evidence of pw 3 it also appears that he had contacted all the three appellants during the course of search of his sister and from there behaviour it appears that they were not serious about tracing out of binita because they knew very well that her dead body is lying in the well. it is true that doctor has not found any external or internal injury but the fact is that dead body was decomposed due to lying in the well for so many days and was also swollen, therefore, injuries, so caused, were not easily detectable. 14. the defence has taken the plea that pw 4 has stated that sasural people of binita deserted her six months prior to the alleged occurrence but from his evidence it appears that he has stated that binita remained in her naihar for a long time but after persuasion of shankar mahto, they had taken binita in 1994 and six months after she was murdered and her dead body was thrown in the well. he has stated in para 3 that binita was deserted by her sasural people six months prior to the occurrence and this tallies with the earlier evidence of this witness when he stated that six months after her vidai she was murdered and her dead body was thrown in the well. 17. admittedly there is no eye-witness to the alleged murder of binita but from the facts and circumstances of the case, it is clear that appellants are involved in the alleged murder of binita and after committing her murder they have thrown the dead body in the well.hari shankar prasad, j.1. this criminal appeal is directed against the judgment dated 19.12.1996 and order of sentence dated 20.12.1996 passed by shri wadhesh kumar ojha, 5th additional sessions judge, dhanbad in sessions trial no. 231/95, whereby and whereunder the learned additional sessions judge held the appellants guilty under sections 304-b/498-a, ipc and sentenced them to undergo r.i. for 7 years under section 304-b, ipc and 2 years r.i. under section 498-a, ipc and sentences were directed to run concurrently.2. sessions trial no. 231/95 has arisen out of baliapur ps case no. 82/94 dated 5.4.1994 registered on the basis of fardbeyan of sudhir chandra mahto.3. the prosecution case in brief is that sudhir chandra mahto gave a fardbeyan on 7.9.1994 at 11.30 hours near old well situated towards east of the house of jethu mahto stating inter alia that on 6.9.1994 at about 2 p.m. prahlad mahto, elder brother-in-law of barun mahto met him in the medical shop situated near saraidhela steel gate and informed him that his sister is traceless from the morning of 5.9.1994 and he has come in search. the informant told him that his sister has not come to his house. the informant came to kuwardih with prahlad mahto then at about 3.30 p.m. he saw jethu mahto, father of barun kumar mahto was sleeping on a cot and on enquiry from him he learnt that his brother-in-law has gone to sindri in connection with work and about his sister he learnt that she is traceless from monday morning, although there was no quarrel. the informant went to the house of his mausi but could not get any clue. he again went to his sister's sasural at 7 p.m. and enquired but his brother-in-law did not come out from the house, although he was in the house nor he talked to him. then he returned to his house. he gave information in his house and again, with basudeo mahto and sudhir mahto came to guli more. in the morning he sent to kuwardih and started searching for his sister then at about 8 a.m. he learnt that dead-body ofhis sister is lying in the well. he went there and saw that the dead-body of his sister was lying in the well and bad smell is coming. several co-villagers have assembled there but none of the sasural people of his sister was there. he went to his house and informed the matter. he came back with a number of persons. the marriage of his sister was solemnized in the year 1990 according to hindu rites and besides a sum of rs. 4000/- several articles were given in the dowry. on the occasion of marriage itself a demand of a watch and a sum of rs. 5000/- was placed and on that very occasion sasural people of his sister had created trouble. when informant went for bidai of his sister, at that time also he was assaulted by sasural people of his sister. in 1993, when his sister came to naihar her sasural people never came for bidai of his sister and threatened to divorce her and marry with another girl. on the pressure of mediator shankar mahto the sasural people took bidai of his sister and since then his sister was neither provided with any clothes nor any facility was given to her and she was always tortured. he suspected the hands of his brother-in-law, his father jethu mahto and his elder brother prahlad mahto in the commission of murder of his sister for the sake of dowry. on the basis of his fardbeyan baliapur ps case no. 82/94 was registered under sections 498a/304b/34, ipc. the police after investigation submitted charge-sheet against the appellants and they were put on trial.4. the learned trial court framed charges against the appellants and after recording the evidences of witnesses both oral and documentary, came to a finding that the appellants are guilty and convicted them and sentenced them as aforesaid.5. the prosecution has examined altogether 6 witnesses to prove its case. some defence witnesses have also been examined in this case. pw 1 is shanti ram mahto. he is a witness to the inquest report as well as on the fact. pw 2 is suresh chandra mahto. pw 3 is the brother of deceased binita. pw 4 is the father of the deceased binita. pw 5 is doctor, who conducted the post-mortem of deceased binita devi. pw 6 is i.o. of the case.6. assailing the judgment, the learned counsel for the appellants submitted that pw 4, who is the father of deceased, stated in his evidence that sasural people of binita had deserted her six months prior to the alleged occurrence but the piece of evidence has not been appreciated by learned court below. learned counsel further pointed out that there is much finding in the evidence of pw 5 (doctor) that binita was first murdered and then thrown into the well, but learned court below has come to such a finding. on the other hand, it was pointed out that doctor (pw 5) has not ascertained the cause of death. learned counsel further pointed out that learned court below has not correctly appreciated the evidence and, therefore, came to a wrong finding.7. pw 1 is shanti ram mahto. he has come to say that in his presence dead body of a woman was taken out from the well and the well is adjacent to the house of appellant jethu mahto and the dead body was that of binita kumari, who happened to be the wife of barun mahto. he further stated that police prepared an inquest report, upon which he put his signature. he has further stated that binita kumari was married to barun mahto in 1990. he has further stated that on the occasion of marriage a sum of rs. 4000/- besides utensils etc. were given. after the arrival of barat party a sum of rs. 5000/- and two watches were demanded as dowry by appellant jethu mahto, brun mahto etc. and there was some trouble over this issue also. even after solemnization of marriage the sasural people of binita pressurized for fulfillment of demands and for that they used to assault binita kumari. he has further stated that binita has even disclosed to him that she used to be assaulted for dowry. he has admitted that he happens to be the nephew of the informant. he has further stated that he was told by binita that she used to be tortured for dowry. he further stated that there is no house adjacent to the house of the appellants and there is no house in the nearby of this house.8. pw 2 is suresh prasad mahto. he has stated that sudhir mahto (pw 3) informed him that his sister has been murdered and thrown in the well. he went to the place of occurrence and saw the deadbody of binita in the well. the dead body was taken out from the well. he has further stated that the well is adjacent to the house of appellant jethu mahto. he has further stated that sasural people of binita used to torture her for a sum of rs. 5000/- and two watches. he has further stated that sudhir chand mahto had given dowry according to his capacity. he has further stated that he is a witness to inquest report. he has further stated that whenever binita came to her naihar, she always told him that she was tortured by her sasural people. he has further stated that he has seen the houses of the appellants and all the houses are together. he has admitted that he happens to be the bhagina of the informant.9. pw 3 is informant himself. according to him, he performed the marriage of his sister binita with appellant barun mahto in 1990 and on the occasion of marriage he gave in dowry according to his capacity but still appellants demanded rs. 5000/- and two watches at the time of solemnization of marriage and even there was some trouble and thereafter marriage took place. he further stated that 2-4 days after marriage he went for bidai of his sister and there too some trouble took place. he further stated that in 1993 his sister was in her naihar and her sasural people were not ready to keep her for the sake of dowry but on the persuasion of shankar mahto bidai was performed and his sister went to her sasural but she used to be tortured and was assaulted in her sasural. he has further stated that on 6.9.1994 when he was near steel gate then one prahlad mahto gave him information that his sister is traceless from monday. he went to the sosural of his sister where appellant jethu mahto informed him that his sister is trace-less from monday and about his brother-in-law he told him that he has gone to sindri in connection with his work. he went to the house of his mausi and enquired from her but he did not get any clue. he again went to the house of appellant jethu mahto and enquired and at that time his brother-in-law barun mahto was in the house but he did not talk to him. he came to his house and informed his family members. he again went to the sasural of his sister on 7.9.1994 and karam chandmahto of that village told him that the dead body of his sister is floating in the well. he saw the dead body of his sister in the well adjacent to the house of appellant jethu mahto. he immediately came to his house and again went with some person and by that time the police have arrived there. he further stated that the dead body was taken out. he identified the dead body of his sister binita and he gave his statement there, which was recorded by the police and he put his signature after the same was read and explained to him. he stated in cross-examination that from the date of marriage trouble started over dowry matter.10. pw 4 is sona ram mahto. he is the father of deceased binita. he has also stated the samething in his evidence. he has stated that his daughter was tortured in her sasural for dowry.11. pw 5 is doctor, who conducted the post-mortem examination on the dead body of binita kumari. he has stated that the dead body was received in the decomposed state with swelling of whole body. in course of post-mortem examination, he found the following injuries :'the dead body was received in a decomposed state with swelling whole body, features were bloated and distorted, tongue was protruded 1/2' between swellen lips, abdomen and vaive were disturbed, manhandling of veins were found all over the body, post-mortem blabs were found on the extremities and on the face articles were found peelings of extremities, clothes were wet, skin of palm and soles were corrugated. no external ante-motem wounds were found, on detection no internal wounds were found, heart empty and flabby, stomach and bladder were empty, uterus was empty and non-pregnant. all internal organs were in the decomposing state, skull and scalp were normal, brain matter was liquefied, spleen was also liquefying. portion of heart, lungs, lever, spleen, one kidney and stomach were pressed in safer saturated common salt solution.'12. according to doctor, the time elapsed since death was between 2-4 days from the time of post-mortem examination. he could not give his opinion as he reservedhis opinion for receipt of chemical examination report pw 6 is i.o. of the case. according to him, place of occurrence was abandoned well situated at a distance of about 30 yards from the house of appellant jethu mahto. the well was very deep and there was water in the well. the dead body was recovered from this very well. he has further stated that the well was in a neat and clean place but water was not utilized for drinking purposes and that well was situated on the land of jharia raja.13. admittedly the marriage of binita was solemnized in the year 1990 and defence has not controverted or disputed the year of marriage of binita with appellant barun mahto. it is also an admitted fact that binita died on 5.9.1994 within 7 years of solemnization of her marriage with appellant barun mahto. it is also an admitted fact that her dead body was recovered from the well and she died in an unnatural circumstance. there is consistent evidence of pws 1, 2, 3 and 4 that she was tortured for dowry and pws 1, 3 and 4 have stated that from the date when barat party had reached near the house of pw 3, some trouble was started over demand of rs. 5000/- and two watches and after some trouble marriage could be solemnized. these witnesses have also stated that binita was tortured in her sosural for dowry and even was assaulted for the same. her dead body has been recovered from a well lying near the house of appellants. stomach had been found empty, which means that there was no water in the stomach and it also shows that she did not die due to drowning in the well but she was first murdered and there after her dead body was thrown in the well, as a result of which no water was found in the stomach. from the evidence of pw 3 it also appears that he had contacted all the three appellants during the course of search of his sister and from there behaviour it appears that they were not serious about tracing out of binita because they knew very well that her dead body is lying in the well. she was traceless from 5.9.1994 and an information to that effect was given to pw 3, when he met appellant prahlad mahto at the gate and thereafter a search was made by pw 3. the doctor has also found the dead body decomposed anddeath had taken place in between 2-4 days before from the time of post-mortem examination. it is true that doctor has not found any external or internal injury but the fact is that dead body was decomposed due to lying in the well for so many days and was also swollen, therefore, injuries, so caused, were not easily detectable. the doctor has also found tongue protruded 1/2' between swollen lips, which is a symptom of death caused by strangulation or by hanging.14. the defence has taken the plea that pw 4 has stated that sasural people of binita deserted her six months prior to the alleged occurrence but from his evidence it appears that he has stated that binita remained in her naihar for a long time but after persuasion of shankar mahto, they had taken binita in 1994 and six months after she was murdered and her dead body was thrown in the well. this piece of evidence finds support from the evidence of pw 3 also who has stated that on persuasion of shankar mahto, sasural people took binita to her sasural. he has stated in para 3 that binita was deserted by her sasural people six months prior to the occurrence and this tallies with the earlier evidence of this witness when he stated that six months after her vidai she was murdered and her dead body was thrown in the well. he has never stated that at the time of her death she was in her naihar but it was asserted that her uidai was done and six months after her uidai, she was murdered.15. dw 1 is a witness, who has come to say that appellant prahlad mahto is separate from other appellants from last seven years. he further says that binita (deceased) used to pressurise appellant barun for keeping his parents separate but appellant did not do so.16. dw 2 is another witness, who has come to say that appellant prahlad was separate from other appellants. he has proved two certificates (exts. a and a/1). ext. a is a certificate granted by dw 2 and ext. a/1 is a certificate granted by sri anand mohan, mla ext. a shows that appellant prahlad is living separate from other appellants for the last seven years and the certificate is dated 20.11.1994. ext. a/1 isa certificate dated 16.10.1994, which shows that appellant prahlad mahto is living separate from other appellants for the last five years. these certificates have been granted only after death of binita devi. but dw 2 has admitted that ration card is joint. further witnesses have stated that houses are together and that prahlad mahto does not live separate from other appellants. hence evidence dw 1 and dw 2 is worth of no avail.17. admittedly there is no eye-witness to the alleged murder of binita but from the facts and circumstances of the case, it is clear that appellants are involved in the alleged murder of binita and after committing her murder they have thrown the dead body in the well.18. taking into consideration the entire facts and circumstances of the case, i do not find any material to interfere with the judgment and order of sentence passed by the learned court below.19. in the result, i find no merit in this appeal, which is accordingly dismissed.