Criminal Appeal (DB) No 453 of 1989 With Criminal Appeal (DB) No 513 of 1989 =========================================================== Against the judgment of conviction dated 13.09.1989 passed by Shri Ashok Kumar Prasad, Additional Sessions Judge VII, Bhagalpur in Sessions Trial No 339 of 1982/19 of 1988. Savitri Devi, wife of Sri Bidyanand Chaturvedi, resident of Amarpur, P. S.- Amarpur, District - Bhagalpur .... .... Appellant (in Cr Appeal No 453 of 1989) Dilip Kumar Chaturbedi, son of Sri Vidyanand Chaturbedi, resident of Amarpur, P. S.- Amarpur, District - Bhagalpur …. …. Appellant (in Cr Appeal No 513 of 1989) Versus The State of Bihar .... .... Respondent (in both the cases) =========================================================== Appearance : For the Appellant/s : Mr Kanhaiya Prasad Singh, Sr Advocate with M/s Krishna Mohan & Praveen Kumar, Advocates For the State : Miss Shashi Bala Verma, A P P =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH (Per: HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH) 1. Since both the appeals arise out of one trial, they have been heard together and are being disposed of by this order. 2. The appellants have challenged the judgment and order dated 13th September, 1989 passed in Sessions Trial No.339 of 1982/19 of 1988 by Sri Ashok Kumar Prasad, learned 7th Additional Sessions Judge, Bhagalpur whereby and where under the appellants being held guilty for the offence punishable under sections 302/34 and 201 of the Indian Penal Code have been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for seven years respectively. Both the sentences have been ordered to run concurrently. 2 3. The prosecution case is based on the written report of Shyam Narain Dubey (P.W.10) submitted to the officer incharge Amarpur police station on 29.8.1980 on the basis of which a formal first information report being Amarpur P.S. Case No.12 dated 29.8.1980 was registered under section 302/201 of the Indian Penal Code and investigation was taken up. 4. According to the informant his daughter Renu Devi was married to appellant Dilip Kumar Chaturvedi in June, 1978. After marriage the deceased Renu Devi went to her matrimonial home. She was being subjected to cruelty for non-fulfillment of demand of motorcycle as dowry. She came back to her parental home. The appellant Dilip Kumar Chaturvedi wrote a letter to father of the informant in which it was mentioned that if he fails to give motorcycle “Duragman” of the deceased shall not be performed and he would marry another lady. Subsequently, Dilip Kumar Chaturvedi married another lady Sunaina Devi, who was daughter of Ram Kailash Chaubey of village Nayagaon. The informant thereafter instituted a case in the court of S.D.J.M., Banka and while the case was pending father of the appellant Dilip Kumar Chaturvedi namely, Vidya Nand chaturvedi filed a bond in the court in which it was mentioned that in future neither he nor any member of his family would subject the victim Renu Devi to cruelty and they would protect her in all respect. Thereafter, the victim Renu Devi was again taken to her matrimonial home. On 29.8.1980 at about 7 a.m. the informant’s son Ashok Kumar Dubey, who was a student of Banka college heard through some unknown person at Banka that the appellant Dilip Kumar Chaturvedi had killed his wife. The informant’s son on receipt of such information immediately came to village Panjwara and disclosed this news to his father. Thereafter, the informant and his father immediately rushed to village Amarpur and enquired about the matter. It was informed by the villagers of 3 Amarpur that the appellant Dilip Kumar Chaturvedi, Savitri Devi and Pradeep Kumar Chaturvedi had probably murdered the deceased Renu Devi in the night intervening between 27th and 28thAugust,1980 and had concealed her dead body. On the basis of aforesaid allegation, the first information report was registered and investigation was taken up. In course of investigation the police recovered the dead body of Renu Devi allegedly from a tank belonging to Gopal Bhagat, a resident of village Amarpur. The inquest report was prepared on 30.8.1980 at about 11 a.m. in presence of witnesses Narsing Panjiyara and Sahdeo Sah by Sri S.P.Gupta, Officer Incharge of Amarpur police station. The dead body of the victim was sent for postmortem examination to Banka Sub-Divisional Hospital on 30.8.1980 itself. The same day at about 2 p.m. the postmortem examination on the dead body of Renu Devi was carried out. The dead body was identified by Constable, Suresh Chandra Tiwari and Shyam Narain Dubey, father of the deceased. After completion of investigation, the police submitted chargesheet against the appellants Dilip Kumar Chaturvedi and Savitri Devi as well as against co-accused Pradeep Kumar Chaturvedi and Jyotish Baniya under sections 302 and 201 of the Indian Penal Code on 13.6.1981. The learned Additional Chief Judicial Magistrate, Banka took cognizance of the offence and after supplying the police papers in terms of section 207 of the Code of Criminal Procedure committed the case to the court of sessions for trial. The trial court pursuant to commitment of the case framed charges for the offence punishable under sections 302/120B of the Indian Penal Code and section 302 read with section 34 of the Indian Penal Code against the appellants and co-accused Pradeep Kumar Chaturvedi. All the four accused persons who were sent up trial by the police were further charged for the offence punishable under section 201 of the Indian Penal Code. The accused persons did not plead guilty and claimed to be tried. Accordingly, the trial 4 proceeded. The prosecution examined altogether 13 witnesses in order to prove the charges. 5. The defence plea was of innocence and false implication. The defence denied the allegation of demand of motorcycle as dowry. The further plea of the defence was that the victim did not reside at Amarpur. She was never ill treated or subjected to cruelty in her in-laws house. There was no motive for the alleged occurrence. The defence also examined one witness on it’s behalf in course of trial. 6. On conclusion of trial the appellants i.e., the husband and the mother-in-law of the deceased have been held guilty under section 302/34 and section 201 of the Indian Penal Code. However, they have been acquitted of the charge under section 302/120B of the Indian Penal Code. The trial court by the said judgment acquitted the co-accused Pradeep Kumar Chaturvedi of the charges framed against him giving him benefit of doubt and further acquitted co-accused Jyotish Baniya, who was also tried together with the appellants of the charge punishable under section 201 of the Indian Penal Code. 7. As stated above, in order to establish the charges the prosecution examined thirteen witnesses. Out of them P.W.1 (Upendra Harijan), P.W.2 (Jagarnath Sao), P.W.3 (Lukhand Mandal), P.W.5 (Sahdeo Sah), P.W.6 (Sikandar Paswan) and P.W.7 (Suresh Paswan) have been declared hostile by the prosecution. P.W.4 (Praduman Gain) has been tendered by the prosecution for cross-examination. P.W.8 (Narayan Gopal Bandopadhya) is the doctor, who conducted postmortem examination on the dead body of the deceased, Renu Devi. P.W.9 ( Ashok Kumar Dubey) is elder brother of the deceased, Renu Devi whereas P.W.10 (Shyam Narain Dubey) is informant of the case as well as father of the deceased. P.W.11 (Mr. Gopal Mahto) is the Judicial Magistrate, who 5 recorded the statement of D.W.1 (Sunaina Devi) under section 164 Cr.P.C. P.W.12 (D.Baitha) is another Judicial Magistrate, who recorded the statement of P.W.1 (Upendra Harijan) and P.W.3 (Lukhad Mandal) under section 164 Cr.P.C. P.W.13 (Shiv Shankar Prasad) is the investigating officer of the case. 8. Apart from oral testimony of the witnesses certain documents have also been produced and proved in the court by the witnesses which have been marked as exhibits. The documents produced and proved on behalf of the prosecution case are as follows and is being given in tabular form. Ext. No. Description The witness who proved Ext.1 Ext.1/1 Ext.2 Ext.3 Ext.3/1 Ext.3/2 Ext.4 Ext.5 Ext.6 Signature of Jagarnath Sao (P.W.2) Signature of Sahdeo Sah( P.W.5) on the inquest of the deceased Postmortem report in the writing and under the signature of Dr.N.G.Bandopadhyay (P.W.8). A letter written by Sunaina Devi(D.W.1) to her father and her signature over it A letter written by the deceased (Renu Devi) to her elder sister Beena A letter written by the deceased (Renu Devi) to her grand father An application in the writing and under the signature of Sunaina Devi (D.W.1) submitted to the officer incharge, Amarpur The envelope on which address was written in the writing of Renu Devi to her grand father which contained postal stamp dated 25.7.1980. The written report on the basis of which first information report was registered in the writing and under the signature of Shyam Narayan Dubey. Jagarnath Sao (P.W.2) Sahdeo Sah (P.W.5) Dr.N.G.Bandopadhyay (P.W.8) Ashok Kumar Dubey (P.W.9) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W10) Ashok Kumar Dubey (P.W.9) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) 6 Ext.7 Ext.8 Ext.9 Ext.9/1 Ext.9/2 Ext.9/3 Ext.10 Ext.11 Ext.12 Ext.13 Ext.14 A certified copy of the letter dated 18.9.1978 written by Vidyanand Chaturvedi, father of the appellant Dilip Kumar Chaturvedi and husband of the appellant Savitri Devi to the father of Shyam Narayan Dubey. The original letter is said to have been filed in complaint case no.22C of 1979 from the record of which the certified copy was obtained. Certified copy of compromise petition filed in the court at Banka in connection with case no.22C of 1979. The statement of Sunaina Devi (D.W.1) recorded under section 164 Cr.P.C. The statement of Sagar Bhagat recorded under section 164 Cr.P.C. The statement of Upendra Harijan (P.W.1) recorded under section 164 Cr.P.C. The statement of Lukhad Mandal recorded under section 164 Cr.P.C. Designation and signature of Shiv Shankar Prasad (P.W.13) on the written statement (Ext.6) Formal first information report Seizure list of Sujni containing foul smell seized from northern Varandah of the court yard and while spot at the same place of the house of the appellants. Carbon copy of the inquest report of the deceased (Renu Devi) The command prepared and signed by Shiv Shankar Prasad (P.W.13) issued for conducting postmortem Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Sri Gopal Mahto (P.W.11), Judicial Magistrate who recorded the statement. Sri Gopal Mahto (P.W.11), Judicial Magistrate who recorded the statement. Sri D.Baitha, S.D.J.M., Banka who had recorded the statement. Sri D.Baitha, S.D.J.M., Banka who had recorded the statement. Shiv Shankar Prasad (P.W.13), who was investigating officer of the case. Shiv Shankar Prasad (P.W.13) Shiv Shankar Prasad (P.W.13) Shiv Shankar Prasad (P.W.13) Shiv Shankar Prasad (P.W.13) 7 Ext.15 Ext.16 Ext.17 examination of the deceased, Renu Devi. The report prepared by investigating officer regarding dog tracking. The report of chemical examiner of forensic science laboratory dated 9.4.1984 Certified copy of ordersheet in complaint case no.22C of 1979 dated 15.9.1979 Shiv Shankar Prasad (P.W.13) Admitted under section 293 Cr.P.C. The document filed by A.P.P. 9. It is also to be noted that save and except oral testimony of the witnesses and documents exhibited in the court the prosecution has produced certain material exhibits in order to prove its charges which are being described as follows Material Ext. No. Ext.1 Ext.2 Ext.3 Ext.4 Ext.5 Ext.6 Ext.7 Ext.8 Ext.9 Description Bedding A gunny bag. Toshak Rope Bedsheet Sujni Saree Bangles 8 pieces Long piece of cloth used as a rope for tying the gunny bag By whom produced Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) Shyam Narayan Dubey (P.W.10) 10. P.W.1 (Upendra Harijan) and P.W.3 (Lukhad Mandal) in their deposition before the court have denied the fact of making any statement either before the police or before the Judicial Magistrate. To the contrary, P.W.13, who is investigating officer, has stated that P.W.1 and P.W.3 had made their statement 8 before him. P.W.12 (Mr, D.Baitha), who is a Judicial Magistrate at Banka, has stated that he had recorded the statement of P.W.1 and P.W.3 under section 164 Cr.P.C. P.W.1 and P.W.3 have contradicted the statement made by P.W.13 and P.W.12. What is relevant is that P.W.1 and P.W.3 have not supported the prosecution version in their deposition adduced in the court. In absence of P.Ws. 1 and 3 supporting the case of the prosecution, the evidence of P.Ws. 12 and 13 cannot serve as substantive evidence. P.W.2 (Jagarnath Sao) though admits his signature on carbon copy of the search list, which was marked as Ext.1 but he denied the fact that any search was made in his presence in the house of the appellants by the police. He denied the fact of seizure of “Sujni” from the house of the appellants. He has also been declared hostile. P.W.4, as stated above, has been tendered for cross-examination. P.W.5 has denied the factum of any recovery from the tank of Gopal Bhagat on 30.8.1980. He was thereafter declared hostile by the prosecution. The prosecution cross-examined him. In cross- examination also he denied the fact of recovery of the dead body of Renu Devi from the tank of Gopal Bhagat. He admits his signature on carbon copy of the inquest report and stated that the same was obtained from him at the police station by the investigating officer. P.W.6 (Sikandar Paswan) and P.W.7 (Suresh Paswan) are Chaukidars of village Amarpur. They have stated that Gopal Bhagat has a tank in village Amarpur. On 30.8.1980 nothing was recovered from the said tank. The investigating officer had not asked them to go inside the tank together with the Chaukidars, Sital Paswan, Jagdish Paswan and Santlal Paswan. They have also been declared hostile by the prosecution. 11. P.W.9 (Ashok Kumar Dubey) and P.W.10 (Shyam Narayan Dubey) are two material witnesses, who are brother and father respectively of the deceased, Renu Devi. Both of them in their deposition have corroborated the 9 prosecution story as narrated in the first information report. P.W.9 and P.W.10 have categorically stated that Renu Devi was married to appellant Dilip Kumar Chaturvedi on 3rd June, 1978 which fact is not disputed by the defence. Immediately after marriage a demand of motorcycle was made by appellant Dilip Kumar Chaturvedi. The demand was also being made by father of appellant Dilip Kumar Chaturvedi. They have also stated that as a result of failure of fulfillment of demand, appellant Dilip Kumar Chaturvedi married to another lady, namely, Sunaina Devi (D.W.1) on 12.12.1978. This second marriage is also not disputed by the defence. This fact became immediate cause for institution of a case by Shyam Narayan Dubey (P.W.10) against the appellant Dilip Kumar Chaturvedi and his family members which was numbered as complaint case no.22C of 1979 filed in the court at Banka. Subsequent to institution of a complaint case Vidyanand Chaturvedi, father of the appellant Dilip Kumar Chaturvedi approached the informant and assured that if a compromise is arrived at Renu Devi will be treated well at her matrimonial home and she will not be subjected to any cruelty. On such assurance, a compromise petition (Ext.8) was filed in the court of Judicial Magistrate, Banka where the complaint case was pending adjudication. The said compromise petition contained the signature of the informant Shyam Narayan Dubey and appellant Dilip Kumar Chaturvedi and his father Vidyanand Chaturvedi. The said complaint was dropped in view of compromise arrived at between the parties and thereafter the victim was sent to her matrimonial home where she was residing till her death. 12. P.W.9 (Ashok Dubey) has proved two letters of Sunaina Devi (D.W.1) written to her father which are marked as Exts.3 and 4. However, Sunaina Devi while being examined as D.W.1 has contended that she is illiterate and the letters as contained in Exts. 3 and 4 were neither written by her nor she 10 had put signature over it. It would also be relevant to note it here that Sunaina Devi (D.W.1) had made her statement to the investigating officer which was recorded under section 161 Cr.P.C. and she had also made her statement under section 164 Cr.P.C. which was recorded by Gopal Mahto (P.W.11) a Judicial Magistrate. Sunaina Devi though being chargesheet witness had chosen to depose as a defence witness and has also denied to have made any statement either before investigating officer or before the Judicial Magistrate. P.W.9 in his deposition clearly stated that on 27.8.1980 at about 10 a.m. he had gone to meet his sister at her matrimonial home in Amarpur and on that day his sister was very disturbed as she was subjected to cruelty and sign of physical torture was found on her person. On the same day in the evening he came back to his residence at Banka where he was studying. On 29.8.1980 when he went to take tea near Banka court, he noticed some persons talking amongst themselves that a murder had taken place in village Amarpur. On enquiry, they disclosed that his sister was killed. Immediately, he rushed to his village Panjwara and from there he went together with his father and grand father to village Amarpur. No one was found inside the house. His father submitted a written report to the officer incharge, Amarpur police station. The victim could not be traced on 29.8.1980. On 30.8.1980 the officer incharge requisitioned a police dog which after taking smell of “Sujni” found from Verandah of the courtyard of the house of appellants and proceeded towards a tank which was at a distance of 150 yards. The investigating officer asked the two Chaukidars present there to go inside the water and make a search. A bedding was recovered from inside the tank. The investigating officer prepared a search list. The bedding was opened at the police station. A gunny bag was found from inside the bedding which was tied with cloth. When it was opened the dead body of his sister was recovered and hands and feet of the deceased were 11 tied. The dead body was thereafter sent for postmortem examination. A lengthy cross examination was made by the defence of this witness but the witness stood to the test of cross-examination. 13. It is submitted on behalf of the appellants that this witness cannot be relied upon as he could not disclose the names of the persons from whom he came to no regarding murder of his sister at Banka. It is also submitted that the letters written by Sunaina Devi (D.W.1) to her father which has been proved and marked as Exts.3 and 4 are not at all admissible in evidence as the same has neither been proved by scribe nor has been proved by recipient of those letters. Furthermore, no credence can be given to these letters as Sunaina Devi has appeared in the court and denied to have written the letters. It has also been submitted on behalf of the appellants that recovery of the dead body from the tank situated at village Amarpur becomes doubtful in view of the fact that inquest report is said to have been prepared at the police station and not at the place of occurrence itself. Suggestion which has been given to P.W.9 to the effect that the victim was not residing at village Amarpur and for some reason or the other she consumed poison and pursuant to her death the place of occurrence was changed from Panjwara (parental home of the deceased) to Amarpur (matrimonial home of the deceased) has been denied by this witness. 14. P.W.10 (Shyam Narayan Dubey), as stated above, has corroborated the facts stated in his written statement which forms the basis of the first information report. He has proved several documents which have been marked as exhibits in this case as narrated herein above. He has clearly stated that after the complaint case instituted against the appellants and their family members was dropped pursuant to compromise, the “Duragman” was performed and the deceased, Renu Devi, was sent to Amarpur and after that she never came back to 12 her parental home. He has proved the letters written by the deceased to her elder sister and her grand father which were marked as Ext.3/1 and Ext.3/2. The content of the letters goes to suggest that the deceased was being subjected to cruelty at her matrimonial home. The envelope in which the letter was sent to father of the informant contains the postal stamp dated 25.7.1980 and the same was proved and marked as Ext.5. These facts clearly suggest that the victim was residing at Amarpur and was being subjected to cruelty at her matrimonial home. It has also come in the deposition of P.W.10 that at the relevant time when occurrence took place Vidyanand Chaturvedi, father of the appellant Dilip Kumar Chaturvedi, was already in jail in some other case. This fact stands admitted by Sunaina Devi (D.W.1) while she deposed in the court. P.W.-10 has corroborated the story narrated by P.W.9 regarding summoning of a police dog which after smelling “Sujni” from inside the house of the appellants led the police party to the tank from where dead body of the deceased was kept in a gunny bag concealed in a hold-all was recovered. P.W.10 has stated in his deposition that when the hold-all was taken out of the tank a huge crowd had assembled as it was the date of Hatia (a kind of village market) at village Amarpur and hence the dead body was brought to the police station from where it was sent to Banka for postmortem. P.W.10 has, thus, explained the reason as to why the inquest was prepared at the police station and not near the tank from where the dead body was recovered. When we look to the deposition of this witness, we find that he has certainly tried to exaggerate the allegation by saying that the victim was being subjected to physical torture for submitting herself to prostitution at the behest of the appellant Savitri Devi. He has also tried to exaggerate by saying that his daughter was being branded by hot iron rod and serious incised wound was caused upon her with aid of blade and also salt was rubbed upon such injury by the appellants. These facts 13 are not there either in the first information report or in the deposition of P.W.9 or were told by P.W.10 to the investigating officer in course of investigation. The trial court has, thus, rightly disbelieved this part of the story narrated by P.W.10. Still the fact remains so far as rest of the story is concerned as the same remains unshaken in cross-examination. P.W.10 has also proved material exhibits in the court as indicated above. P.W.10 has proved the certified copy of compromise petition dated 24.4.1979 (Ext.8) filed in the complaint case. He has stated after looking the contents of certified copy that the contents of original compromise petition were the same. P.W.10 (Shyam Narayan Dubey) has also proved certified copy of the letter dated 8.9.1978 (Ext.7) which is said to have been written by Vidyanand Chaturvedi to the grand father of the deceased. He has explained that original letter was filed by him in the record of complaint case no.22C of 1979. 15. Learned counsel for the appellants submits that neither Ext.7 nor Ext.8 is admissible in evidence. Ext.7 has not been proved by Murlidhar Dubey, father of P.W.10, who alone was competent to prove it but he has not been examined as a witness in this case. It is further contended that so far as Ext.8 is concerned, the same is a certified copy of compromise petition. The destruction of the original document has not been proved and thus its certified copy was inadmissible in evidence. We find that this issue was also raised by the defence in the court below and the court below has rightly rejected both these pleas on the ground that the letter (Ext.7) directly concerned with P.W.10 as Vidyanand Chaturvedi had made