CRIMINAL APPEAL No.254 OF 1992 Against the Judgment of Conviction and Order of Sentence dated 18th day of September, 1992 passed by Sri P.K.Sinha, the then 4th Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 102 of 1987. 1. Gautam Thakur 2. Mahasati Devi 3. Chidanand Thakur ------------------------ Appellants Versus The State of Bihar ------------------------ Respondents For the Appellants : M/s Rana Pratap Singh, Sr. Advocate, Chittaranjan Sinha, Sumant Singh & Aruni Singh, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA 1. For the alleged offence of causing and committing the dowry death of Shobha Thakur by burning, the three appellants herein, respectively the father – in – law, the mother –in – law and the husband of the deceased were charged under sections 302/34, 304B/120B, 498A, 201/34 I.P.C. as also under section 4 of the Dowry Prohibition Act. However, the learned trial court acquitted all the three appellants of the offences punishable under sections 302/34 and 201/34 I.P.C. on a finding in paragraph 146 of the judgment to the effect “therefore, it must reasonably be held that Shobha Thakur had committed suicide”, and again at paragraph 148 at - 2 - page 98 of the judgment (inadvertently by typographical error typed as 148 in place of 248) – “therefore considering the entire evidence on the record, I find and hold that the prosecution has failed to prove its charge against any of the accused facing trial either under section 302 of the I.P.C. read with section 34 of the I.P.C. or under section 201 of the I.P.C. read with section 34 of the I.P.C.” Accused Chidanand Thakur was also acquitted of the charge under section 304B I.P.C. or in the alternative under section 304B read with section 120B I.P.C. 2. However, all the three accused were found guilty of the offence under section 498A I.P.C. and whereas accused Chidanand Thakur was sentenced to undergo R.I. for two years, the other two were not awarded any separate sentence in view of their conviction under section 304B I.P.C. whereunder each of them were sentenced to undergo R.I. for ten years. All the three accused were also convicted for the offence under section 4 of the Dowry Prohibition Act and each of them were sentenced to undergo R.I. for 6 months. All the sentences were directed to run concurrently. 3. The prosecution case in brief as culled from the F.I.R. is that Krishna Bihari Sharma (P.W. 6) was the maternal uncle (mausa) of the informant Ramesh Kumar Singh (P.W. 10) and at the relevant time the informant was living with his maternal grandfather at Khabra. It is said that the informant came to know that Gautam Thakur and his wife, because of - 3 - family problems, had murdered his sister Shobha Thakur by setting her on fire. It has been disclosed in the F.I.R. that Chidanand Thakur was married to Shobha Thakur some nine months back and that Chidanand was not present in the house at the relevant time since he was in service at Jamshedpur and that the occurrence took place at around 12 Noon. The reason for the alleged murder is said to be that accused Gautam Thakur was demanding more money from Krishna Bihari Sharma but Krishna Bihari, for unavoidable reasons, had delayed in fulfilling the demand made by the accused. The informant also stated that it was he who was giving the statement as his mausa, Krishna Bihari Sharma, was nervous Kumar Vijay, Dinesh Kumar and Haribansh Ojha have figured as attesting witnesses of the F.I.R. and their signatures have been marked as Exts. 1 series. 4. The statement of Ramesh Kumar Singh was forwarded to Kazi Mohamadpur P.S. by the Investigating Officer where the formal F.I.R. (Ext. 12) was drawn up and the dead body was sent for post mortem. The Investigating Officer inspected the place of occurrence that very day, seized certain articles and papers and recorded the statement of the witnesses. 5. After due investigation a charge sheet was submitted against the three appellants under various sections of the Penal Code and section 4 of the Dowry Prohibition Act, - 4 - and in accordance therewith appropriate charges were framed against the three accused. 6. The defence of the appellants before the trial court was of alibi and it can be gathered from the suggestions put to the witnesses that the father of the deceased had called the daughter to persuade her to put her signature on the N.S.Cs. purchased in her name prior to her marriage as he needed the money and that in fact he had taken loan on the strength of those N.S.Cs. standing in the daughter’s name. It was also suggested that even after that he wanted to take whatever amount there was in the name of the daughter and that in that regard immense pressure was put on the daughter who refused to oblige. That apart the specific suggestion was that he (the father) had detained Shobha in his house on 25.2.1987 and 26.2.1987 and had attempted to make her agree to his proposal to which she did not agree for which she was tortured over these two days. It was also suggested in specific terms that due to Shobha not condescending , the father in the morning of 27.2.1987 had insulted her, slapped and abused her and eventually threw her out of the house and in that excited state of mind, being a sentimental girl, she returned to her house and committed suicide and prior thereto she burnt the papers. 7. In course of the trial the prosecution examined as many as 19 witnesses and the defence followed suit by - 5 - examining 12 witnesses. 8. The submissions advanced on behalf of the appellants is that it would appear from the evidence of the prosecution witnesses itself that the marriage between Shobha and Chidanand Thakur took place without any dowry and that at the time of marriage there had been no demand for any dowry. It is true that some dispute had arisen but the same was settled without any payment and the marriage was solemnized. Further regarding the gift of ornaments and N.S.Cs. the witnesses were contradicted by P.W. 12 as such demand story were put forth for the first time in Court only. It was submitted that the letters written by the deceased and her family members and the appellants completely exonerate the appellants. The letters and diary of the deceased which were duly proved by the prosecution filed as Ext. 8 series and Ext. 9 and letters Ext. A series which were proved by the defence. These only go to show that the allegation of cruelty was not true and the oral evidence which were sought to be led were false. It was also submitted that the allegation of demand prior to death is also concocted as from the circumstances and evidence it is apparent that allegation of demand on 25.2.1987 and 26.2.1987 were not proved. 9. The learned A.P.P. in support of the prosecution case submitted that the prosecution by cogent and reliable evidence had proved the charges under section - 6 - 498A I.P.C. and 4 of the Dowry Prohibition Act against all the appellants and under section 304B I.P.C. against the parents of the husband and the same in view of the cogent evidence could not be negated. In this context it was sought to be submitted that merely because the prosecution witnesses were not believed by the trial court regarding the offences under section 302/34 I.P.C. and the husband was also acquitted under section 304B I.P.C. was not a ground to reject the entire evidence of the prosecution or even other material part also as Falsus in uno Falsus in omnibus is not a sound principle as envisaged in several cases by the Hon’ble Apex Court. 10. A bare reading of the judgment of the Sessions Court shows that P.W. 6 was not believed by the trial court in many aspects and further P.Ws. 2, 5 and 10 were also disbelieved by the trial court. On this premise the evidence of the remaining prosecution witnesses is required to be scrutinized cautiously and with circumspection. 11. As stated above the prosecution examined as many as 19 witnesses of whom P.Ws. 1, 2, 5, 6 and 10 are important as the very fate of the prosecution case depends on their evidence. From their evidence it is apparent that the marriage of the deceased with Chidanand was solemnized without any dowry . P.W. 1, Sunil Prasad Singh, a relation of the deceased, stated in paragraph 23 that prior to marriage there had been no dispute between the samdhis. He also - 7 - stated in paragraph no. 1 that 5 days prior to the marriage phaldan had taken place and he had the occasion to attend the same. Further his evidence in paragraph 2 shows that two days prior to the marriage a demand of Rs. 1,10,000/- was made but after due deliberations the demand had been conceded by the father of the bridegroom. The deposition of this witness in paragraphs 21, 22, 23, 24 and 25 goes to show that on the date of phaldan the date of marriage was fixed for 13.6.1988 and no demand was made on the date of marriage. From the above it would appear that the prosecution case regarding demand of dowry prior to the marriage till date of marriage had not been proved. Similar is the evidence of P.W. 5, Radhe Shyam Sharma, in paragraph nos. 1, 3 and 4. P.W. 5 has further been contradicted by the evidence of P.W. 12 (I.O.) regarding demand of ornaments. P.W. 10 (Ramesh Pd. Singh) the father of the deceased in paragraphs 42 and 43 has adduced evidence to the effect that the marriage took place in happy circumstances and they were no heart burning at the relevant time. So far as his statement about the NSCs is concerned, the same is contradicted by P.W. 12. In the circumstances the following facts emerge from the evidence of prosecution itself which are as follows: (a) There was no demand of dowry at the time of phaldan , during marriage or in between the two - 8 - (b) Some dispute had arisen prior to the marriage which was settled amicably and the marriage was solemnized without any dowry. (c) Regarding the jewellary and the N.S.Cs. statement of the witnesses in Court were contradicted by P.W. 12, the I.O. As such the story of demand by P.Ws. 6 and 10 have been manufactured for the first time in the Court and in that view of the matter the same should be given a go bye or ignored in toto as the same is not worth reliance and credibility. 12. The next question which falls for consideration is the story of the deceased being subjected to cruelty immediately after the marriage. This aspect has not been proved by the prosecution as the deceased had gone to her maika wherefrom she wrote a letter dated 14.7.1986 (Ext. A) to her father – in – law and mother – in – law. It is evident from the said letter that the deceased had no grievance of any kind after her marriage. Even Ext. A/1, the letter written by the deceased from her sasural to her dewar on 15.7.1986, reveals her happy and cordial relationship with all the appellants. Ext. A/2 a letter written by the deceased to her husband on - 9 - 20.11.1986 reveals that she was well looked after by her in – laws. Then again Ext. A/3 dated 11.11.1986 which is a letter written by the deceased to her dewar reiterates her being treated in her sasural with respect and cordiality. It may not be out of place to state here that the prosecution has not been able to point out any specific allegation of torture in the six months period after her marriage. No witness has come forward to allege the story of torture within six months of marriage. The letters of the deceased which have been exhibited only go to show that a very normal and affectionate relationship with the husband and in laws had prevailed and there was no reflection of her being tortured for dowry. 13. Now coming to the point whether soon before her death the deceased had been subjected to cruelty in any manner whatsoever. Since the issue is very delicate the evidence of the witnesses will have to be scrutinized with utmost care and circumspection. P.W. 1, Anil Prasad Sinha, has not made any statement on this issue and P.W. 10, Ramesh Prasad Singh, the informant has stated in the fardbeyan that it was due to the family dispute that the father – in – law and mother – in – law of deceased Shobha had killed his sister by setting her on fire. This evidence was disbelieved by the trial Court as the appellants were acquitted of the charge under section 302/34 I.P.C. P.W. 6 has made omnibus allegations regarding the torture. The crucial date for the demand - 10 - appears to be from 25.2.1987 to 26.2.1987 when admittedly the deceased Shobha was in her naihar and P.W. 6, Krishna Bihari Sharma, had stated that a demand of Rs. 50,000/- was made from his daughter and again on 26.2.1987 a demand of Rs. 50,000/- was made by Gautam Thakur but in the F.I.R. the aforesaid specific statement had not been made . It needs to be recorded that the deceased had returned to her sasural on 27.2.1987 and in the absence of her father – in – law, mother – in – law and husband and after bolting the house from inside she committed suicide after burning certain papers. 14. From the evidence of the prosecution and defence and perusal of the documents the following facts emerge:- (i) The parental house as also the matrimonial house of the deceased was in the town of Muzaffarpur and the deceased was allowed to visit her naihar at her will. (ii) The deceased had remained in her naihar on 25.2.1987 and 26.2.1987 and reached her sasural on 27.2.1987 at around 10 A.M. (iii) Chances were remote of the deceased being allowed to go back to her marital home on 27.2.1987 if the allegation of threat like the proverbial sword of Damocles was hanging over her head. (iv) No report was made anywhere regarding the demand of dowry of Rs. 50,000/- as disclosed in the Court - 11 - for the first time. (v) At the time of the suicide she returned from her naihar but none of the appellants were present in the house. (vi) The solitary and oral evidence of PW 6 is wholly inconsistent with the documentary evidence. Ext. A/g, the last letter by deceased to her husband on 24.2.1987 late night written from her sasural and from the place where she committed suicide on 27.2.1987 at around 10.30 A.M. The letter Ext. A/g completely demolishes the story of demand. It further shows good and cordial relationship between the deceased and her parents - in – law. It further reveals that the husband was to come during Holi. Judicial notice of the date of Holi in the year 1987 is taken from the calendar of the High Court. Ext. A/10, a letter dated 3.2.1987 by deceased to her husband from which certain quotes are given below: “ Moped dks D;k gks x;k gS A iSlk de feyus ls igys dh vis{kk dqN fnDdr rks gksxh ij [kkus ij vki dks ftruk [kpZ gksxk fdft;sxk A” “vki yksxks us gj ckj bruk lkjk I;kj esjs vkWpy es Mky dj fcxkM fn;k gS eq>s k lols T;knk okowth fd;s gS eq>s k eq>s ;gkW vk dj ftruh [kq’kh feyh gS ;g eS tkurh gwW ;k fQj Hkxoku tkurs gS k 15. The two letters proved by the defence completely demolishes the story of demand prior to her death. - 12 - It further reveals excellent and cordial relationship with husband and in – laws. It also shows that the deceased used to fix photographs in albums in presence of the in – laws. Solitary oral evidence of P.W. 6 is wholly inconsistent with the circumstantial evidence and the letters which the prosecution and the defence exhibited undisputedly, written by the deceased, completely falsifies the case of torture and demand immediately preceding her death as has been agitated by the prosecution. 16. Another circumstance which can be taken into account is Ext. 9, the pocket diary of the deceased. It shows that the deceased was not prepared to pocket any insult to her husband from any one including her parents. Further Ext. 8/3 shows that a television was purchased by her husband on instalment basis and the husband used to pay for the same from his salary. 17. Further evidence of P.W. 12 in paragraphs 1, 7, 9, 10, 13, 50 to 52 and 81 clearly shows that deceased after returned from her naihar on the fateful day closed the main gate and doors leading to the first floor and committed suicide after burning some papers. These burnt papers unfortunately were never sent for forensic examination by the prosecution. Further it reveals that there was no one in the house at the relevant time. Apparently the deceased had committed suicide by putting electric connection from wire of - 13 - the blanket and burnt herself to death. Some witnesses tried to implicate the appellants for offences under section 302 I.P.C. for which the trial Court has acquitted all of them and further acquitted the husband under section 304B I.P.C. 18. As such the following inference can be drawn: (i) There is no evidence worth reliance to show that any demand of dowry was made during marriage or prior thereto. It further transpires and remains proved that the marriage took place without any dowry. (ii) The letters of defence and the prosecution, as exhibited by them completely falsifies the evidence of P.W. 6 regarding demand of dowry just before death or that the deceased was subjected to cruelty. It thus appears that the evidence of P.W. 6 is inconsistent and not trust worthy. (iii) The story of torture is also not proved by reliable or cogent evidence. From the exhibits it is apparent that relationship of the deceased with her husband and in – laws was normal and cordial. (iv) From the evidence it is apparent that the deceased was deeply in love with her husband. (v) No man of common prudence would allow his daughter to go back to her sasural and that too alone after such threats if the allegation is to be believed, was purportedly advanced. - 14 - 19. The presumption under section 113B of the Evidence Act cannot be drawn on the fact and circumstances of the case. There is no evidence worth reliance to show that death of Shobha Thakur was caused by appellants in connection with a demand of dowry or that she was subjected to cruelty by all the accused including the husband soon before her death. The evidence clearly reveals that a very happy and normal relationship existed between Shobha Thakur, the deceased, and her – in – laws. Reliance in this connection can be placed on the cases of Raja Ram Vs. State of Rajasthan reported in 2005 SCC (Cr.) 1050 and Mukhtiyar Ahmad Ansari Vs. State of Delhi reported in 2005 SCC (Cr.). 20. The above discussions on the basis of evidence and materials on record clearly establishes that the prosecution has miserably failed to prove its case beyond all reasonable doubts against the appellants. It is very unfortunate that a young housewife died within 9 months of her marriage but I do not find any cogent evidence against the appellants so as to come to a conclusion that due to demand of money deceased Shobha Thakur found no other way but to commit suicide. I have already discussed that the evidence discloses normal relationship between the deceased and her husband and her – in – laws and there was no perpetrated torture of the deceased for want of dowry. - 15 - 21. Accordingly the conviction under section 498A I.P.C. and section 4 of the Dowry Prohibition Act against husband Chidanand Thakur and parents – in – law Gautam Thakur and Mahasati Devi and under section 304B I.P.C. against appellants Gautam Thakur and Mahasati Devi are set aside. Accordingly, the judgment and order of conviction and sentence passed by the learned Trial Court are hereby set aside. 22. The appellants who are on bail granted by this Court during the pendency of the appeal are hereby discharged from the liabilities of their respective bail bonds. The Patna High Court The 21st May, 2008 Sanjay/- A.F.R. (Abhijit Sinha, J.)