1 Criminal Appeal (SJ) No.985 OF 2006 - - - - Against the judgment of conviction dated 3.11.2006 and order of sentence dated 7.11.2006 passed by the Ist Additional Sessions Judge, Purnea, in Sessions Trial No. 534 of 2000/4 of 2005. - - - - SEIKH SALIM son of Sheikh Bokai, resident of Village Amna, Police Station Dagarua, District Purnea … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: S/s Vikram Deo Singh, Manoj Kumar Dharmendra Kumar Singh For the State: Shri Ajay Mishra,A.P.P. - - - - P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The solitary appellant Seikh Salim was charged of committing offence under Section 304B of the Indian Penal Code by the learned Additional Sessions Judge-I, Purnia in Sessions Trial No.534 of 2000/4 of 2005 and by judgment dated 3.11.2006 was found guilty of committing that offence. After being heard on the sentence on 7.11.2006, the appellant was directed to suffer rigorous imprisonment for ten years. The appellant preferred the present appeal to question the above judgment of conviction and order of sentence passed against him by the learned Additional Sessions Judge-I, Purnia in the above noted case. 2 2. The informant of the case Md. Fazlu Rahman, the father of deceased Bibi Safina who was undisputedly married to the present appellant five years prior to the occurrence, received an information through one Tahir( not examined) that his daughter had been murdered and, accordingly, he came to the house of the appellant on 31.7.1998 to find that the dead body of his daughter was lying inside the house. The informant was accompanied by P.Ws. 2,3,4 and 6. 3. It was alleged that after coming to the house of the appellant after her marriage, the deceased Bibi Safina was asked to bring dowry articles and non-fulfilment of the demand had resulted in her ill-treatment and torture by the accused persons so much so that she was driven out of the house to force her to lodged a complaint case under Section 498A, etc. of the Indian Penal Code. She was persuaded to go to her matrimonial house and again she was driven out of it but at that time a son in her lap was snatched from her. She remained in the house of P.W.7 for 2-3 months when a Panchayati was held and an undertaking was given by the accused persons which was written, as per the evidence of P.W. 1, by one Raghunath 3 Bhagat and the lady was again sent back to her matrimonial house when she was killed. 4. The above facts emerge from the fardbeyan as also from the evidence of the witnesses who were examined in the case. 5. On the basis of the fardbeyan, the F.I.R. of the case i.e., Ext.4 was drawn up and the investigation was taken up by P.W. 9 Siril Kumar who stated that he came to village Amna after having received an information that some occurrence had taken place and on reaching the house of the present appellant found Md. Fazlu Rahman P.W.7 there and recorded his statement which has been marked Ext.3. Thereafter, he went to the house of the appellant and found the inmates of the house absconding but found the dead body of Bibi Safina lying and, as such, held inquest upon the dead body in presence of the witnesses and thereafter sent the dead body for Post-Mortem Examination to Sadar hospital, Purnia. He inspected the place of occurrence and recorded the statement of the witnesses and finding material sufficient, sent the accused up for trial which resulted in his conviction and sentence by the impugned judgment. 4 6. During the course of trial, nine witnesses were examined out of whom P.W.1 Islam, P.W. 2 Md. Kali, P.W.3 Mohammad Kali, P.W. 4 Sk. Samir, P.W. 5 Bibi Rasula, P.W.6 Haibu Nisha and P.W. 7 Md. Fazlu Rahman have given evidence on the facts of the case. P.W.3 Md. Kali and P.W.4 Sk. Samir have given evidence on holding of panchayati and on that account the deceased being persuaded to go to her matrimonial house. Besides the above, P.W. 5 Bibi Rasula and P.W. 6 Haibu Nisha were the grand mother and mother of the deceased and they have given evidence on the marriage of the deceased to the present appellant and the demand for dowry, ill-treatment and torture of the deceased on account of non-fulfilment of the demand and, lastly, the deceased being murdered by the accused. Similar is the evidence of P.W. 7, Md. Fazlu Rahman, the father of the deceased and other witnesses, like, P.Ws. 1,2,3 and 4. 7. P.W. 7, the father of the deceased stated that his daughter after being married to the appellant went to her matrimonial house and her in-laws started demanding a motorcycle, T.V. and cash in dowry and on account of not getting the demanded articles they were assaulting the deceased as a result of which a Panchayati was 5 convened at village Amna, but the torture of the deceased and the acts of beating her continued. Lastly, the deceased was turned out of her matrimonial house as a result of which a complaint case was lodged, vide Complaint Case No. 1022 of 1996 in the court of Sub-divisional Judicial Magistrate, Purnia. However, there was yet another panchayati after quite sometimes, which was organized in a school and there was a panchnama which was prepared by Baidyanath Bhagat(not examined) and the deceased again went to her matrimonial house two and half months prior to the occurrence when the informant received the information about his daughter being killed. He went with that message to village Amna and there he learnt about the murder of the deceased by her family members. The dead body was found inside the house which was brought out and the police was informed. Accordingly, the fardbeyan was recorded and the case was instituted. 8. In cross examination P.W.7 has stated that for about two years of the marriage the relationship between the deceased and the present appellant was cordial and there was no demand for dowry and as soon as a child was borne to her the accused persons started demanding cash and buffalo 6 and the deceased was beaten up on that account. She was also driven out of her matrimonial house and, lastly, while being expelled, her child was also separated from her and was kept by the accused persons. The above acts of the accused persons resulted in filing of the complaint case. The witness was subjected to very lengthy and detailed cross-examination and he was even recalled for cross-examination once having been discharged and during that course of cross examination nothing appears coming as to discredit the evidence of the witness. 9. The prosecution case was that a panchayati was held for salvaging the bad relationship between the parties as may appear from the evidence of P.Ws. 3 and 4 wherein they have specifically stated that they were the persons amongst others who had also participated in panchayati which was held in the last in a school and the lady had gone to her matrimonial house. As regards the evidence of P.Ws. 1 and 2, they also stated that panchyatis were held on a couple of occasions. Similar is the evidence of P.W. 5 Bibi Rasula and P.W. 6 Haibu Nesha who have also stated about the ill-treatment and torture of their kin deceased Bibi Safina. 7 10. So far the evidence of P.W. 8 Dr. Bipin Kumar Singh is concerned, it is material to point out that hile holding post-mortem examination on the dead body of the deceased he found multiple blackish spots on anterior, posterior chest walls and right palm. Faint ligature mark was also found all around the neck. On dissection of head and neck heamatoma was found present over the scalp and meninges werecongested and nothing abnormal was detected on dissection of the neck and it was opined by the Doctor that the ligature mark had been created after killing the deceased, probably, to create a defence that the deceased had committed suicide. The Doctor stated that the deceased had been killed after being assaulted and specially on account of the head injury which caused congestion to the meninges. 11. On perusal of the evidence of the witnesses, what this Court finds is that the deceased was definitely assaulted and the degree of assault which was administered to her could be appreciated from the fact that multiple blackish spots were found both on the posterior and anterior parts of her body, specially, around her chest. The right palm was also bearing blackish spot meaning thereby that she was defending 8 herself by raising her hand while she was being assaulted. The severity of assault could further be gathered from the fact that P.W. 8 had found fracture both of 6th and 7th ribs. The evidence of P.W.8 leaves no room to doubt that it was a brutal act of assaulting a helpless lady who was the wife of the appellant and, thereby, killing her. So as to camouflaging these acts the appellant, may be with the help of others, was attempting to create a defence by creating the ligature mark around the neck of the deceased. The Doctor has very specifically stated that the ligature mark was post mortem. The Doctor in his evidence clearly stated that it was an intentional act of murder and killing of an innocent lady. 12. After having perused the evidence of the witnesses what I find is that the evidence appears direct that the deceased was killed and the reason for killing was non-fulfilment of the demand for dowry. As such, the appeal appears of no merit and the same is dismissed. 13. Before I part with the present judgment, I must point out that it is yet another instance as to how the Judges appear indifferent towards the most important aspect of criminal justicing system. The aspect of framing of charge in a 9 criminal case could not be better appreciated than having a glance of the present case. The evidence I have just discussed, indicated that it was an intentional act of killing a lady. There ought to have been a charge under Section 302 of the Indian Penal Code. An alternative charge could also have been under Section 304B of the Penal Code. An argument was advanced that in face of demand for dowry and story of torture on that account, departure, a Judge might be perfectly justified in framing of the charge only under Section 304B of the Penal Code. But, on scanning the evidence in light of the argument what this Court finds is that non-fulfilment of the demand for dowry could be the motive for committing the offence and framing of the alternative charge was legitimate. But the defect is that in absence of the charge and in absence of any appeal preferred against that charge, this Court has no option but to confirm the conviction and the sentence passed upon the appellant. 14. The Registrar General of the Court is directed to forward a copy of this judgment to the Director of the Bihar Judicial Academy, Gai Ghat, Patna, so that he could discuss the desirability of framing of alternative charges with all 10 Officers, specially those who man courts of Sessions. 15. While I was hearing the appeal, I found the deposition sheet of P.W. 6 Haibu Nesha which is available on the lower court record was only up to paragraph 4 and that too was not complete. Learned counsel for the appellant has produced the certified copy of the whole deposition sheet of P.W. 6, a photostat copy of which has to be placed as part and parcel of the deposition of P.W. 6 which is available on the lower court records. 16. The appeal is dismissed. ( Dharnidhar Jha, J.) Patna High Court, The 27th April, 2011 Kanth/N.A.F.R.