Suresh Rai Son of Late Sheo NaraIn Rai Vs. the State of Bihar - Court Judgment

Abhijit Sinha, J.

1. The deceased, Meena Devi, wedded to Suresh Rai, the appellant herein, died in her matrimonial home within seven years of her marriage, otherwise then under normal circumstances, allegedly for the failure of her father to cater to the additional demand of a Television set and Rs. 10,000/- in cash as dowry. Bishwanath Prasad, brother of deceased Meena Devi allegedly on witnessing the death of his sister gave his fardbeyan at 5.30 A.M. on 1.10.1989, on the basis whereof Patna (Gardanibagh) P.S. Case No. 545 of 1989 came to be registered under Section 302/34 I.P.C. and Sections 3/4 of the Dowry Prohibition Act.

2. In the resultant Sessions Trial, the appellant herein along with his brother Umesh Rai and mother Fulwa Devi were charged under Section 304B/34 I.P.C. for committing dowry death of his wife Meena Devi in furtherance of their common intention. They were further charged under Section 4 of the Dowry Prohibition Act for demanding further dowry of Rs. 10,000/- and a Television Set from the parents of Meena Devi. However, by the Judgment dated 8.7.2003, whereas accused Suresh Rai was found guilty and convicted under Section 304B I.P.C. as also Section 4 of the Dowry Prohibition Act, Umesh Rai and Fulwa Devi were acquitted of the charges framed against them. Suresh Rai was sentenced to undergo rigorous imprisonment for ten years under Section 304B I.P.C. and rigorous imprisonment for one year under Section 4 of the Dowry Prohibition Act with both the sentences to run concurrently.

3. According to the prosecution case, as disclosed in the F.I.R. (Ext.3), his sister, Meena Devi, was married to accused Suresh Rai of Bhikhachak and after the marriage she went to the matrimonial home to begin her new life. It is said that at about 3.30 P.M. on 1.10.1989, the informant along with his cousin, Rabita Devi, Fufa, Ramesh Rai and Fufu went to meet Meena Devi in the matrimonial home as her parents in-law and other members of husband's family were not allowing him to meet his sister. It is alleged that as soon as he, the informant, opened the door and looked inside the house, he saw that Sheo Naraian Rai (father-in-law) ,Suresh Rai (husband) and Umesh Rai had thrown Meena Devi to the ground and Suresh Rai was throttling her, even as accused Sheo Narain Rai had gagged her mouth with hands and Umesh Rai had caught hold of both her hands and mother-in-law had caught hold of her both legs thereby rendering her immobile. The informant and the witnesses on seeing this scene raised alarm, whereupon Sheo Naraian Rai and his two sons fled outside the house. The informant and the witnesses entering into the house found his sister lying dead. The further case of the prosecution is that the accused persons used to assault Meena Devi for non-fulfilment of the demand, used to pressurize her to get the demand fulfilled by her father and also threatened her that only if their demand was fulfilled, she would be allowed to go to her parents' house. It has been claimed that death of Meena Devi had been caused for non-fulfilment of the dowry demand.

4. The defence of the accused, as gathered from the suggestions given to the prosecution witnesses and defence witnesses examined, as also their statements under Section 313 Cr.P.C, is a total denial of the allegations of demanding dowry, torture to the deceased and commission of her murder. The further defence is that the deceased Meena Devi had a love affair with a boy in her parental village and as her parents did not take her back to their house, she out of humiliation committed suicide. The further defence pleaded by the appellant herein was that he was not present at Bhikhachak on the date of death and after the death of the deceased was discovered, information was given to her grand-father.

5. At the trial as many as six witnesses were examined by the prosecution to prove the charges of whom Bishwanath Prasad (P.W.1) is the informant, Jagdish Prasad (P.W.2) is the brother of the informant, Ramesh Rai (P.W.3) is the uncle (Fufa) of the informant, Fufu of the informant Ganga Devi (P.W.4) and Dr.Shambhu Sharan (P.W.5) the doctor who had conducted the post mortem examination of the dead body of the deceased, Meena Devi and Tarkeshwar Nath is Advocate Clerk (P.W.6) who has proved the F.I.R. (Ext.3) and Case Diary (Ext.4).

6. The defence in support of their plea also examined as many as five witnesses.

7. The bona fides of the impugned judgment of conviction and order of sentence are sought to be challenged by the appellant on the ground that the four prosecution witnesses apart from P.Ws 5 and 6, who were examined in support of the prosecution case, are all family members of the informant and thereby are interested witnesses and no independent witnesses at all had been examined in the case by the prosecution. As such, it was submitted, the evidence of the four witnesses could not be relied upon. It was the further stand of the defence that curiously the parents of the deceased have not been examined as prosecution witnesses, although they were very important witnesses to prove the allegation of demand of dowry and torture of their daughter. The learned Counsel further sought to point out that Champa Devi, wife of Ramashish Prasad, father of P.Ws 1 and 2, had been cited as witness of the chargesheet, but she was not examined by the prosecution. Grievance was also raised against the non-examination of the Investigating Officer, though he is still alive, which fact is available from the deposition in paragraphs 4 and 10 of P.W.1.

8. Learned Counsel for the appellant further sought to point out the contradictions in the deposition of P.W.1 vis-a-vis the version narrated in the fardbeyan given by him and according to him, the major contradictions goes to falsify the entire prosecution story. In this connection, he pointed out that whereas in the fardbeyan he had stated that T;ksafg njoktk [kqyok;k vkSj ?kj es ns[kk fd---- whereas in paragraph 1 of his deposition, he has stated that ^^T;ksfg njoktk /kdsyk rks [kqy x;k geus ns[kk fd----^^ As against this, P.W.3 has stated that ^^ckgj dk fdokM+ dks [kV[kVk;k rks ugh [kksyk] nksuks iyM+k ds Nsn ls ns[kk rks ik;k fd----^^. P.W.4 has stated that ^^geyksx njoktk rksM+dj vUnj x;s rks mijksDr vfHk;qDr fiNys xsV ls Hkkx x;s----^^. On this premise it was submitted that although all these witnesses had arrived at the same time, yet they had narrated different means of seeing the occurrence. He also sought to point out that P.W.2 in his statement had not stated any demand for dowry being made or of Meena Devi being tortured. In this connection he drew my attention to paragraph 3, wherein the witness has stated that ^^eS chp esa feyus ,d ckj mlds llqjky x;k Fkk] cgu ls feyk Fkk] cgu us dqN ugh dgk Fkk A^^. The learned Counsel further pointed out that P.W.2 in paragraph 7 of his deposition had stated that he had not given any statement before the police which would mean that he was stating about the incident/occurrence for the first time in court, and as such, his deposition has no evidentiary value.

9. Continuing with the discrepancies and contradictions in the evidence of the prosecution witnesses, learned Counsel for the appellant drew my attention to the deposition of P.W.3, wherein he has stated that ^^fo'oukFk eq>s esjs ?kj vkdj dgk fd---- rc eS vkSj iRuh ?kj ls nkSM+dj feuk ds llqjky x;s]----^^, which evidently would mean that Bishwanath Prasad having seen the occurrence first came to the house of P.Ws.3 and 4 who on being informed rushed to the sasural of Meena Devi. Therefore, P.Ws 3 and 4 by their own depositions were not eye witnesses of the occurrence.

10. So far as the question of demand of dowry is concerned, it was submitted by the learned Counsel for the appellant that it would be clear that no specific allegation had been made against the appellant, Suresh Rai, as the accusation against him was that he used to say that unless the dowry was given, Meena Devi would not be allowed to go back to her father's house. He also referred to the statement of P.W.), as contained in paragraph 5, where he had stated that ^^'kknh esa eS e/;LFkrk fd;k Fkk] 'kknh ds le; ysu nsu dks ysdj dksbZ fnDdr ;k f'kdk;r ugh gqbZ Fkh A 'kknh ds le; nksuks i{k [kq'k Fks----^^. He has also stated about having no knowledge whether Meena Devi had sent any information to the parental home regarding her being subjected to cruelty and torture. On this premise, it was submitted that the prosecution had failed to prove that the deceased Meena Devi soon before her death had been subject to cruelty or harassment by her husband or any relative of the husband for, or in connection with, any demand for dowry. He also submitted that the prosecution had also failed to prove that dowry in terms of Section 2 of the Dowry Prohibition Act was ever demanded. In this context, the learned Counsel for the appellant drew my attention to the deposition of the five defence witnesses, all of whom are contiguous neighbours of the place of occurrence, all of whom have supported the defence suggestions given to P.W.3 in paragraph 10 regarding Meena having committed suicide. It was also submitted that had there been any grain of truth in the allegation of Meena being subjected to cruelty and torture, at lease one of the neighbours would have come forward to support such allegation, but there is no support to the allegations except from the interested relatives of the deceased.

11. The learned trial judge placing reliance on the Judgment of Kansraj v. State of Punjab reported in : 2000(5) SCC 207 has set out the conditions that are required to be proved by the prosecution to seek conviction of a person for the offence of dowry death and has proceeded to analyse the evidence that has come forth in support of the prosecution case. Admittedly, the marriage of the deceased, Meena Devi, was solemnized with appellant Suresh Rai in May, 1989 and her death took place on 1.10.1989, that is, well within seven years of the marriage.

12. In dealing with the death of the woman caused by burns or bodily injuries occurring otherwise than under normal circumstances, the learned trial judge has referred to the evidence of the doctor (P.W.5) who had conducted the post mortem examination on the dead body of Meena Devi at around 12.30 P.M. on 2.10.1989 and found one external injury, namely, bruise 1/2' in breadth and encircling the whole neck beyond the thyroid cartilage. On dissection, he found that extra vasatin of blood in the sub-cutaneous tissues under the ligature mark present. The carotid artery was found lacerated. The hyoid bone and thyroid cartilage were found fractured. The doctor opined that the injuries was ante mortem in nature and the cause of death was asphyxia due to strangulation and time elapsed since death was between 12 to 36 hours approximately. In his cross-examination, the doctor had admitted that in case of hanging also there may be ligature mark and that there is little or no difference between an asphyxia produced by strangulation and asphyxia by hanging. However, he volunteered that there will be difference in nature of injury in between strangulation and hanging. He denied that this was a case of hanging. The learned trial judge differing the doctor's opinion that this was a case of hanging proceeded to cite from books on Medical Jurisprudence and Toxicology to show the differences between hanging and strangulation and came to a conclusion that this was a clear case of strangulation and not suicide by hanging. However, the learned trial judge appears to have been remiss of the fact that if the prosecution story of Meena Devi being throttled to death was to be believed then marks of thumbs and fingers ought to have been found or detected.

13. P.W.1 admittedly has stated in his evidence that when he along with others reached the matrimonial home of Meena Devi, the door of the house was closed and as soon as they pushed the door, the door opened and he saw the four persons had thrown his sister on the ground and accused Suresh Rai was pressing her neck. Accused Sheo Naraian had closed the mouth, Umesh Rai had caught hold of her hands, the mother of Suresh Rai had caught hold of her both legs. He has also stated of having raised alarm when they ran to assault them and there was scuffle and the accused persons tied away. It is strange that P.Ws 1 to 4 though seeing that Meena Devi was forcibly being subjected to death by her husband and in-laws remained immobile and raised no alarm or rushed to the rescue of Meena. The action of P.W.I and his companions seem to be rather unusual and unbecoming in the situation that they were facing. The deposition of P.W.I is falsified by the deposition of P.W.3 who has stated that the informant had gone to meet him and had told him that all the four accused had caught hold of Meena and on this he along with his wife rushed to the sasural of Meena Devi and knocked the main door, but it was not opened. He has further stated that he peeped through a slit in the planks of the door and saw all the four accused persons had caught hold of Meena and he raised alarm, whereupon several persons assembled and the accused persons fled through the western door. The evidence of P.W.4 is in identical terms. If the version of P.Ws 3 and 4 is to be believed, then the statement of P.W. 1 that he had gone to the matrimonial house of Meena Devi in the company of P.Ws 2, 3 and 4 is falsified. There is another disparity in the statements of these three witnesses, namely, that P.Ws. 1, 3 and 4. Where as P.W.1 claims to have pushed the closed door which opened and then he saw the occurrence. P.W.3 claims to have seen the occurrence through the slit in the planks of the door, which was closed and P.W.4 states of breaking open the door and entering inside.

14. It is also to be noted that although these three witnesses have stated that three of the four accused managed to flee, accused Sheo Naraian was apprehended at the spot, but this fact is conspicuously missing in the F.I.R.

15. The discrepancies pointed out by the learned Counsel for the appellant also appears to be true and has a great relevance on the bearings of the case.

16. The non-examination of the Investigating Officer can result its failure of the prosecution case only in those cases when the defence to prove some material contradictions in the depositions of the witnesses or some materials facts cannot be brought on record without examining the Investigating Officer.

17. In the instant case, the objective findings of the Investigating Officer in respect of the place of occurrence is sadly missing and may have had a great impact in the case. At the same time by the non-appearance of the Investigating Officer, the defence has not been able to prove some material contradictions in the depositions of the witnesses. In that view of the matter, the defence stand is highly prejudiced.

Due regard being had to the materials available on the record, the discrepancies between the fardbeyan and evidence of P.W.1, the discrepancies in the evidence of P.W.1 vis-a-vis P.Ws. 3 and 4, the non-examination of some of the chargesheet witnesses as also the Investigating Officer and the large embellishment in the prosecution case, I am of the confirmed opinion that the prosecution has not been able to prove its case beyond all reasonable doubts. Accordingly, the appeal is allowed and the judgment of conviction and order of sentence passed by the learned trial court is hereby set aside.

It appears that the sole appellant is in custody as his prayer for bail had lastly been rejected by a Bench of this Court vide order dated 17.3.2004. It is hereby directed that the appellant be released from custody forthwith if he is not required to be in custody in connection with any other case.