IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.850 of 2008 Against the judgment of conviction dated 12.08.2008 and order of sentence dated 14.08.2008 passed by Additional Sessions Judge, Fast Track Court-V, Bhagalpur in Sessions Trial No.8 of 2003/Trial No.379 of 2006. 1. DILIP MANDAL, Son of Late Tarani Mandal 2. PRAMILA DEVI @ NIRMLA DEVI, W/O Dilip Mandal 3. BABULAL CHAURASIA, Son of Dilip Mandal All resident of Parasuramchak, P.S.Kahalgaon,(Antichak)District-Bhagalpur ------ Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Sri Ajay Mishra, Amicus Curiae For the Respondent: Sri Bhanu Pratap Singh, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The three appellants were charged together for committing an offence under Section 304B/34 IPC by the learned Additional Sessions Judge-V, Bhagalpur for being tried together in Sessions Trial No.8 of 2003/Trial No.379 of 2006. The judgment under challenge was passed by the learned Presiding Officer of Fast Track Court-V, Bhagalpur on 12.08.2008 by which the appellants were found guilty of committing the offence they had been charged with and after being heard on sentence on 14.08.2008, while appellants Dilip Mandal and Pramila Devi @ Nirmala Devi, who are the parents of the third 2 appellant of Babulal Chaurasia, were directed to suffer rigorous imprisonment for seven years each, the appellant Babulal Chaurasia was directed to suffer rigorous imprisonment for ten years. The appellants have preferred the present appeal challenging the judgment of conviction and sentences passed upon them. 2. Undisputedly, deceased Durga Devi was married to appellant Babulal Chaurasia and initially the marriage was registered by the Special Marriage Officer, Sahebganj at Rajmahal, as may appear from Ext-5. The evidence of witnesses indicates that subsequently marriage rites were also performed between the appellant Babulal Chauraisa and deceased Durga Devi. It appears admitted that Durga Devi was residing in the house of the appellants and in fact her dead body, almost completely burnt, was also recovered from the house of the appellants as may appear from the inquest report Ext-8. 3. The allegation is that after being married to appellant Babulal Chaurasia the deceased was being asked to bring Rs.50,000/- and a motorcycle by the three appellants and differences between the parties had occurred on that account at the time of performing the Bidagari. The informant stated that he received a telephonic call at about 5 P.M. on 22.06.2002 that his sister had been burnt and she had died. It was the 3 appellant Babulal Chauraisa who had made the call to the informant and he was laughing while passing on the message over to the informant. The informant stated that he requested the appellant Babulal Chaurasia to shift his sister to hospital so as to getting her treated by a doctor and he was also likely to come, but the appellant Babulal Chaurasia stated that because his sister was already dead so there was no question of taking her to any hospital. 4. The informant stated that he came to the house of the appellant and found that the appellants were not present there and that his sister had been killed by being burnt after being tied over her hands. 5. On the basis of the fardbeyan(Ext-7) of P.W.11 Sanjay Chourasiya, the police drew up the FIR and proceeded to investigate the case. The investigation was taken up by P.W.13 S.I. Ashok Kumar Thakur who stated that he had received the information about the occurrence while he was on patrolling duty and when he came to the house of the appellants, he found the informant there and recorded Ext-7 and took up the investigation himself. While describing the place of occurrence he has stated that he found it to be the house of the appellants and he found the dead body inside one of the rooms of the house and it appeared as if the deceased had been killed by being set at fire. 4 P.W.13 further stated as may appear from paragraph-5 of his evidence that the dead body was bearing burn injuries and one of her hands was also bearing the mark of being tied by a rope. 6. Finding the material sufficient, the police sent up the three appellants for their trial which ultimately resulted in their conviction. 7. The prosecution examined as many as 13 witnesses, out of whom P.W.7 Sitaram Lal and P.W.9 Binod Mandal were witnesses who had signed the inquest report. P.W.7 Sitaram Lal has stated that the dead body was seen by the investigating officer in his presence as also in presence of P.W.9 Binod Mandal and the inquest report was prepared. However, P.W.9 has stated that when he reached there he found the inquest report was already lying prepared and he was asked to put his signature over the document. Out of the remaining witnesses, P.W.4 Mukesh Kumar Yadav, P.W.5 Ram Kumar Keshri stated that the informant P.W.3 Jai Kumar Chourasiya came to tell them about the death of his sister which message had been received by him through telephone from village- Parsuramchak and both witnesses, P.Ws.4 and 5, were requested to accompany the informant to the village of the appellants who after reaching there found that Durga Devi was dead and her dead body was lying in a burnt up condition inside a room where the police reached and the 5 information was lodged. P.W.6 Sunita Chourasiya is the mother of the deceased and she stated that the deceased was married to the appellant Babulal Chaurasia at Rajmahal by registering the marriage before the Registrar of Marriages and subsequently the marriage was also performed at her house where Rs.35,000/- and some ornaments and other presents were also given to the bride. The bride went to her matrimonial house but after only 2-3 days she was sent back to her parents’ house when there were attempts made by the family members of the informant to persuade the husband and other relatives of the husband to take back the lady to the family fold, but they were inclined to take back the lady to their family fold only when a cash of Rs.50,000/- and a motorcycle were given to them. The witnesses, like, P.Ws.1, 2 and 3 who are the close relatives of the deceased being her sister or brothers stated that she had gone to her matrimonial house only about a fortnight ago and she was being illtreated and tortured and, lastly, the message of being burnt to death was received by P.W.11. Similar is the evidence of P.W.11, the informant of the case also. Thus, what appears concluded from the evidence of the witnesses is that Durga Devi, the deceased was married to appellant Babulal Chaurasia ritualistically as also under the Special Marriage Act before the Special Marriage Officer 6 in Rajmahal and that there was some dispute between the parties because the husband and the relatives of the husband were demanding Rs.50,000/- and a motorcycle as additional dowry and for that the lady was being tortured. The evidence appears consistently available on record establishing the above facts. It further appears established that Durga Devi had been sent back to her parents’ house and the accused persons had been persuaded to take her back and accordingly she had gone to her matrimonial house about a fortnight ago and she was tortured and, lastly, was killed by being burnt to death. 8. The allegation was that the deceased was killed by being tied with a rope. I have already discussed the evidence of P.W.13, the investigating officer of the case and it appears from the evidence of P.W.13 in paragraph-5 that he found one of the hands still bearing the mark of tying a rope and the dead body was almost burnt. So far as the cause of death is concerned P.W.12 Dr. Atul Kumar Mallik had held the postmortem examination and the report prepared by him does not leave any manner of doubt that the dead body was bearing burn injuries up to 80 per cent and the doctor opined that the injury could have been caused by flames of fire. The description of the injuries indicates that the margins of the wound were still 7 reddish and that indicated that the burn was definitely cause by flame of fire. 9. During the cross-examination of witnesses, like P.Ws.3 and 11, the two brothers of the deceased out of whom P.W.11 was the informant of the case, the defence appears to suggest as if the deceased could have killed herself because she was earlier married to one Madan Lal Chaurasia. P.W.11 has stated in paragraph-7 that the first marriage of the deceased had taken place on 21.05.1994 with Madan Lal Chaurasia and it also appears admitted that there was no formal divorce obtained through law. P.W.3 Jai Kumar Chourasiya, the younger brother of P.W.11 has stated in paragraph-2 that there was no order of divorce obtained dissolving the marriage of the deceased with Madan Lal Chaurasiya rather they had sat together and had decided the dissolution themselves. It may not be unknown in many castes or sub-castes of Hindu that customarily, it is permissible that couple separate from each other to get married according to their own choice. As may appear from Ext-A which is the order passed under Section 125 Cr.P.C. in favour of the deceased Durga Devi and against the said Madan Lal Chaurasiya that he had been directed to pay a monthly maintenance allowance of Rs.350/- to the deceased by the 10th day of every month. The order Ext-A was passed by a Judicial Magistrate of Ist Class, 8 Sahebganj in Cr.Misc.No.2 of 1995 and that definitely indicates as to how the first marriage of the deceased had crumbled and broken off. That particular document may further lead to an inference as to why the need of registering the marriage was felt. The first marriage having been broken down on account of whatever reasons, the parties must have thought to get the marriage first registered so that there is no such event occurring in the life of the decease the second time. That is the reason that Ext-5 was issued by Special Marriage Officer, Sahebganj at Rajmahal. I have already referred to the evidence of the witnesses who are close family members of the deceased that after the marriage was registered rituals were observed as are required under the Hindu Law for performance of a valid Hindu marriage. Thus, there is no doubt in it that the deceased was duly married to the present appellant. 10. I have already pointed out some of the admitted facts. It is not disputed that the deceased was residing on the day of occurrence in the house of the appellants. It is also not disputed that the dead body of Durga Devi was found almost completely burnt. The evidence of P.W.13 indicated that one of the hands of the deceased was still bearing the marks of being tied over by a rope. It is true that P.W.10 Jangli Paswan who was the local Chaukidar had stated that P.W.13 the I.O. 9 of the case was informed and he then opened the door of the house and took out the dead body. This line of evidence may give an impression as if the dead body had been salvaged out of the room after breaking open the doors. But, that particular evidence of P.W.10 could not be considered inasmuch as the investigating officer P.W.13 does not say that P.W.10 was present when he had arrived at the scene of occurrence and held the inquest report and further, that he broke open the doors and salvaged the dead body. The inquest report(Ext-8)does not indicate that the dead body was salvaged from the house after breaking open the door of the particular room. 11. The motive was there. The purpose for killing the deceased was also there. The accused persons were demanding, as per the evidence already accepted, that the deceased or her brothers or parents pay Rs.50,000/- and also give a motorcycle. The manner in which the dead body was found with tying of a rope and that definitely indicated that it was an intentional act of some persons to set the deceased at fire as a result of which she died. P.W.12 Dr. Atual Kumar Mallik has stated in his evidence that the injuries were sufficient in the ordinary course of nature to cause death. Thus, there could not be any doubt in it that it was the act of the appellant in whose house the deceased was 10 residing on that particular day and that had resulted in the death of the deceased. 12. In the above view of the evidence, I do not find any merit in the appeal and the same is hereby dismissed. Appellants Dilip Mandal and Pramila Devi @ Nirmala Devi are on bail. Their bonds are hereby cancelled and they are directed to serve out the remaining sentence. 13. Before I part with the present judgment, I want to highlight one of the most important aspects of criminal trial. The circumstance which appeared from the evidence or the evidence of witnesses itself indicated that it could not be an act merely which could be covered by the penal provision of Section 304B IPC. It was definitely a case which could be an offence for charging the appellants under Section 302 IPC. The provision is sufficient in the Cr.P.C. to frame the charges alternatively if the facts indicated that more than one offence appeared committed by the accused on the facts of the case. It is high time that the Judges manning the trial courts should be impressed upon the need to frame the charges alternatively, else the real act which is defined by the IPC may not be appropriately punished. While I was being taken through the evidence of witnesses, I found that it was a fit case in which the appellants ought to have been convicted after being 11 charged and tried for the offence under Section 302 IPC. But that could not be done at this belated stage by this Court. Let the court be apprised on its administrative side, so that proper remedial measures are initiated by the court. 14. Sri Ajay Mishra, learned Amicus Curiae has assisted this Court and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last pages of the judgment be made over to him. Patna High Court, Dated, the 18th day of October, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)