CRIMINAL APPEAL No.384 OF 2003 (In the matter of an application under Sections 374 (2) and 389 (1) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 23.07.2003 passed by Shri Anant Prasad Shrivastava, Adhoc District & Sessions Judge, Presiding Officer, 1st Additional Fast Track Court at Siwan in Sessions Trial No. 263 of 2001/320 of 2002 arising out of Darauli Police Station Case No. 52 of 2000) ********** SUMAN SHEKHAR RAJHANS, SON OF MAHADEO RAJHANS, THE THEN A.S.I. OF POLICE, RESIDENT OF VILLAGE DHARMRAI, POLICE STATION TARAPUR, DISTRICT MUNGER …………………………………………….APPELLANT VERSUS THE STATE OF BIHAR …………………………………………RESPONDENT ****** FOR THE APPELLANT :- MR. KANHAIYA PRASAD SINGH, SR. ADV. MR. RAJIV RANJAN SINGH, ADVOCATE MR. RANVIJAY NARAIN SINGH,ADVOCATE FOR THE S T A T E :- MR. RAM PRIYA SHARAN SINGH, APP ************ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan,J. The sole appellant before this Court has remained in custody for 4 years and 11 months is the husband of the deceased lady Bandana Kumari, has challenged the judgment dated 23rd July, 2003 passed in 2 Sessions Trial No. 263 of 2001/320 of 2002 by which he has been convicted to undergo rigorous imprisonment for ten years under Section 304B of the Indian Penal Code, and to pay fine of Rs. 2,000/- and in default of payment of fine to undergo rigorous imprisonment for two years. He is further convicted to undergo rigorous imprisonment for two years each for the offences under Sections 498A and 201 of the Indian Penal Code. The appellant has remained in jail since 07.02.2001 to 02.01.2006 i.e. four years eleven months. The informant Gopesh Jha (PW 9) lodged the First Information Report on 12.11.2000. The prosecution case is that the appellant got married to Bandana Kumari on 21.01.1996. At the time of marriage, he was gifted a Rajdoot motorcycle and two drafts were also issued of Rs. 75,000/- each in the names of the appellant and Pratibha Kumari, It is alleged that after the marriage, both of them were living peacefully till all of a sudden the appellant stopped visiting his wife who was living with her father. At that stage, the informant came to know from the parents of the appellant that the appellant was demanding a maruti car. On 27.03.2000, it is alleged that the appellant visited the house of the informant and took the deceased to his village home. In May, 2000, the deceased was taken to Sitamarhi and thereafter she returned back to her father’s 3 home on 17th August, 2000 on the ground that the appellant has been transferred in the district of Siwan and the appellant had stated that he needs to make arrangement to keep his wife with him and, therefore, he dropped his wife to her parental house. It is said that Bandana Kumari is said to have disclosed to her parents that she was being tortured by her husband. After a few days, the appellant is said to have visited his wife and asked her to forgive him and requested her to accompany him to his place of posting. In September, 2000, it is said that he called the informant and asked him to send Bandana to Siwan. On 15.09.2000, Kamlesh who is said to be the younger son of the informant took Bandana to Darauli Police Station where the appellant was posted. The informant further alleges that some villagers of village Dharamrai disclosed that the appellant had gone to his village home and he is said to have told the villagers that he had killed his wife and managed all the affairs. The date of receiving this information is 06.10.2000. The informant also came to know from the villagers that his daughter had died on 04.11.2000. In this background, this Court has to examine whether the prosecution has been able to prove the allegations made out by the informant. Learned Counsel for the appellant has 4 challenged the allegations/story made out in the First Information Report inasmuch as it is submitted that the informant has given wrong information regarding the story of torture. The informant has not produce Kamlesh, brother of the deceased who is said to have accompanied the deceased to Darauli Police Station at Siwan. The story regarding the torturing of the deceased after taking her to his village home on 27th March, 2000 is improbable and unbelievable and it is further submitted that the case of the informant with respect to receiving information regarding the death of his daughter is absolutely unbelievable and should be rejected outright as no person who has committed a crime of this nature would be bosting about it in the village or to anyone. Ten witnesses have been examined on behalf of the prosecution and the Court has examined the doctor who had treated Bandana Kumari as CW 1. The submissions on behalf of the appellant are that the informant has not been able to prove that there was any demand of dowry as these facts were not stated before the Investigating Officer during the investigation of the case, the informant has suppressed the fact that the appellant had filed a suit for divorce in which Bandana Kumari despite the notice had not appeared and finally an ex-parte decree of divorce was passed in the year 5 1998, the circumstances and the reasons for the divorce have not been mentioned and finally for the reason the circumstances which prompted the informant to send his daughter in the year 2000 to the house of her husband is also not explained. PW 9 has supported the case while giving evidence. He has stated that marriage took place at Deoghar and the BARATIS stayed at a DHARAMSHALA. With respect to the occurrence, he states that he came to know about the occurrence from Sacchidanand who is his brother-in-law (SALA). At paragraph 39, he has stated that he met his brother-in-law Sacchidanand after four months of the occurrence and he did not talk to him regarding the occurrence. It has further been stated that while he was at work, his wife received a telephone call regarding information of death of her daughter. The evidence is based on the information disclosed by his wife Tara Devi. A suggestion has been given to him at paragraph 52 that his daughter was involved with some other man which he has denied. He also denies that his daughter received notices with respect to the divorce. Learned Counsel submits that the evidence of PW 9 is not believable inasmuch as the story of demand has been introduced in the year 2000 when Bandana Kumari went to the village home of the appellant and 6 returned in the month of May, 2000. Therefore, it is submitted that the fact that Bandana Kumari was not living with her husband since her marriage in 1996 is not because of the allegation that there was a demand of dowry rather the story of demand of maruti car has been introduced only in the month of March, 2000. Learned Counsel also emphasized on the fact that at paragraphs 61 & 62, PW 9 has stated that he had told the Investigating Officer regarding the demand of dowry and that he had also stated before the Investigating Officer that he had given his son-in-law a legal notice in the year 1997. The notice has not been produced before the Trial Court to substantiate this part of the statement. It is further submitted that the story regarding steps to enter into a compromise is also an afterthought. It is submitted that the Investigating Officer (PW 10) has denied that the informant has stated before him that he had given a legal notice to the appellant in the year 1997 and has also denied that the informant has stated that in the year 1998, the appellant had called the informant and threatened him and asked him to restrain himself from instituting a criminal case. PW 10 has also denied that the informant has stated that his brother-in- law (SALA) had called him on 06.11.2000 to inform him regarding the occurrence and informed him that his daughter has been killed by her husband. PW 10 has also 7 stated that the appellant had lodged a Sanha on 05.11.2000 with respect to the death of his wife. PW 10 furthers states that he did not take any action on the Sanha because after enquiry he came to know that the deceased died in course of treatment. PW 10 has explained that he made enquiries from Pankaj Singh and Tuntun Singh which has been incorporated in the case diary. It has also been stated that the informant did not produce any draft or cheques or any proof that the said amount mentioned in the First Information Report was transferred to the appellant’s family. Learned Counsel submits that it is obvious that the informant has built up his case from time to time and has come up with a story of demand of dowry after his daughter passed away. Moreover, it is stated that the informant is relying on two witnesses, namely, Kamlesh and his brother-in-law Sacchidanand, yet the two of them have not been produced before the Court for their deposition to support the allegation made therein. It has been stated that infact the informant had full knowledge regarding his daughter’s death and shradh ceremony was attended by the family members. The case has been lodged as an afterthought. It is submitted on behalf of the appellant that although he can not give any proof regarding telephonic version, he has produced the telegram sent to the informant which was received on 8 06.11.2000. After the telegram was returned on 06.11.2000. The submission is that there was no reason why the informant should have taken six days to institute a case as the First Information Report was recorded on 12.11.2000. The reason, according to the learned Counsel for the appellant, is that infact the informant had full knowledge regarding the death of his daughter and, therefore, he has made up a case that he heard rumours in the village regarding the manner in which the appellant is said to have killed his wife and thereafter has lodged a case which appears to be unbelievable and unpalatable. The natural conduct, would be in the circumstances, that his daughter was being tortured for a maruti car to institute a case immediately after receiving the telegram and, therefore, it is submitted that the informant has deliberately filed the case as an afterthought for obvious reasons which the Counsel submits can not be disclosed in Court. The evidence of PW 7 Tara Devi, the mother of the deceased, indicates at paragraph 3 that the demand of dowry was made for the first time when Bandana Kumari went to Sitamarhi and stayed there for one month. It is stated that the parents and the brother of the appellant used to come to Sitamarhi to visit their son and made a demand of maruti car. At paragraph 4, this witness states 9 that her son Sanjeev and some neighbours went to Dharamrai village to talk to her son-in-law. It is stated that when they returned, her son and neighbours (name not disclosed) informed her that her son-in-law is demanding a maruti car. It is stated that her daughter remained with her father 2-3 years thereafter. This witness has also disclosed that she received information regarding the manner of death of her daughter from her brother Sacchidanand. At paragraph 24, this witness has stated that her daughter had sent her a letter in the year 2000 which she has not produced before the Court. At paragraph 27, she has stated that her daughter went so the village home of her husband once, to Sitamarhi twice and once to Darauli. In all, it is stated that she stayed for one month and twenty days at Sitamarhi and 3 and half months at village Dharamrai and about 40 days at Darauli with her husband. Learned Counsel has attacked the evidence of PW 7 stating that this witness has alleged that there was a demand of a maruti car by the father and mother of the appellant. According to her, the demand was made on two occasions. Moreover, it appears that the witnesses is not telling the truth and has introduced the story of demand of dowry in order to justify the fact that the daughter in the four years of the marriage had hardly lived with her husband for six months. It is submitted that the facts are 10 otherwise and in order to cover up the shortcomings and behaviour of the daughter, the story of demand of maruti car has been introduced at a belated stage. On no occasion the father or the mother or the victim Bandana made a complaint to any higher police officials or in the Court alleging that she was being ill-treated by her husband. Learned Counsel further refers to paragraphs 33 to 38 wherein attention has been drawn of PW 7 with respect to the statement given by her before the Investigating Officer. It is stated that she had not stated before the Investigating Officer that a draft of Rs. 75,000/- was paid to the In-Laws of Bandana Kumari or that son-in- law and his parents had made a demand when she had gone to Sitamarhi, the circumstances under which her daughter had gone to live with her husband in the year 2000. PW 10 has similarly stated that no such statements were made by this witness and the facts have been introduced before the Court at a late stage. The evidence of PW 7 is also challenged on the ground that all the statements made by this witness regarding the demand of a maruti car or with respect to the circumstances surrounding her death are uncorroborated by the Investigating Officer and her own brother who is said to have informed her with respect to the death of Bandana Kumari. 11 PW 6 is the sister of the deceased. It is stated that she has gone a step further and stated that her sister was tortured right from the year 1996 and she has also stated that all these facts were disclosed to her by her sister. This witness has also stated in her examination-in- chief that they got the information regarding the manner of death from Sacchidanand Jha on telephone on 06.11.2000 and after receiving the telephone it is also stated that Sacchidanand and her brother had gone to Darauli to find out under the circumstances Bandana Kumari died. This witness does not remember the statements made by her MAMA when he returned from Darauli to give information to her parents regarding the death of Bandana. At paragraph 20, this witness has stated that when they received the information from village Darauli, the BHABHI Rani Jha and brother Dilip Jha were present in the house. On the basis of the aforesaid evidence, it has been stated that PW 6 has given a different version. It is submitted that she has tried to improve the prosecution case by suggesting that there was a demand of dowry from the very beginning. Learned Counsel submits that there are several anomalies in the evidence given by this witness, for example, it has been submitted that this witness has stated that she has a very good relationship with the appellant and that the appellant had also sent her two letters and that when he 12 came to visit her sister, she did not speak to him at all. It is submitted that obviously this witness has been well tutored and has given evidence which would indicate that she had a good relationship with her brother-in-law and the story of demand of maruti car is improbable in the facts of the case. Attention of this witness has also been drawn to the statement given before the Investigating Officer which is with respect to payment of Rs. 75,000/-, demand of the appellant with respect to a maruti car and the fact that the appellant would remarry if the maruti car is not gifted to him, the story that Bandana Kumari had disclosed that she was being tortured by her In-Laws infact she has stated that whenever she spoke to her sister with respect to her relationship with the appellant, it is stated that her sister disclosed to her that her husband did not treat her well. At paragraph 54, she has stated that on the basis of the information disclosed by her MAMA, they came to know that Bandana Kumari had been done to death by the appellant had informed them that Bandana Kumar had been killed by her husband. All these facts have been denied by the Investigating Officer in his evidence which is mentioned at page 143 of the records. PW 8 is the brother of the deceased. In his examination-in-chief he has stated that he came to know the entire facts through his MAMA with respect to the 13 demand of dowry and the circumstances of her death. This witness is a hear-say witness and he was not present when the telephone call came with regard to the rumours of the death of his sister. After hearing Counsel for the appellant and also on perusal of the evidence, the facts that emerge are that Bandana Kumari was married in the year 1996 to the appellant. She stayed with her husband for a very short period for one month at the village home after her marriage, then again for 15-20 days at the village home, thereafter she visited her husband when he was posted at Sitamarhi during the Durga Puja holidays and lived with him for about two months and finally she went to her house at Darauli in the year 2000 for about 40 days before she died. Learned Counsel for the appellant submits that in the four years of the marriage, the deceased lived with her husband for six months and that too after gaps of several months infact she did not live with her husband for about 3-4 years after her visit at Sitamarhi. It also appears that no demands whatsoever were made during the four years against the behaviour and alleged demand of dowry by the appellant. None of the family members seem to have intervened in the matter and taken any steps to reconcile the issues if any. The father at no stage has met his SAMDHIS to talk to them about the demands made by 14 them and all these allegations have been highlighted by the informant after the death of his daughter. Learned Counsel also points out that the father did not know about the demand of dowry until the facts were disclosed by his wife to him. It appears that he never spoke with respect to this issue to his daughter and never took any steps in the direction of settling the problems between his daughter and the appellant. It is submitted that because the lady had died within four years of her marriage, there is a presumption that she died because of some harassment made by the In-Laws or the husband. Learned Counsel also challenges the entire prosecution version on the ground that it has been alleged after the delay of six days the First Information Report was lodged and that the source of information is vague and unsupported by any witness. The main witness with respect to the death of the deceased is Sacchidanand Jha, the MAMA of the deceased who according to the evidence of PWs 6, 7 and 8 has stated that he heard rumours in the village that the appellant is said to have told the villagers that he had killed his wife and destroyed the evidence. It is submitted that the prosecution case has been instituted on the basis of rumours and in no event can such allegation be leveled only on the basis of the rumours without any concrete or circumstantial evidence which would lead the Court to hold that the chains of 15 events is such that the Court can not reach any other conclusion but that the murder/death is proved by the circumstances surrounding the death. It is submitted in this case apart from the rumours there is nothing else which would lead this Court to hold that infact Bandana Kumari had been killed by her husband because of the demand of dowry. The submission on behalf of the appellant is that the pressure of a demand being made by the husband or the In-Laws of the deceased would be only effective if the lady in question was living with her husband. Making demands without actually pressurizing the family members to part with the demand so made can hardly be a circumstance to show that the deceased was subjected to any harassment or torture. It may be highlighted that Sacchidanand Jha, the person who had actually informed PW 7, mother of the deceased regarding the rumours was a vital witness to substantiate the case that he had heard rumours in the village Darauli that Bandana Kumari had died an unnatural death. Moreover, it is not a natural conduct on the part of the appellant or anyone else to boast about the killing the lady in question. This circumstance, as mentioned by the learned Counsel, is to disbelieve the quality of the evidence that has come forth with respect to the occurrence. The aforesaid submissions would be 16 supported by the fact that the Court has examined the doctor as CW 1. Dr. Ram Singh who was posted at Primary Health Centre, Darauli is the Medical Officer from 1992 to April, 2001. He was summoned as a witness by the Court. He has stated that he was interrogated by the Investigating Officer of this case. This witness states that he can not give any evidence without examining the records and as such the photocopy of the original register marked as Exhibit- C/1 with objection was produced before the Trial Court. Photocopy of the entry no. 280E dated 01.11.2000 relating to Bandana Kumari and the emergency registered was produced and marked as Exhibit-C/2 with objection. The entry no. 3825 dated 03.11.2000 relating to the patient no. 80 Bandana Kumari has been marked as Exhibit-C/3 with objection. This witness has been cross-examined. This witness has stated that he had not been called to give treatment to any patient nor has he visited the residence of any Police Officials. He claims that he did not know the appellant closely at all. Bandana Kumari was brought to the hospital in emergency and she was examined on 01.11.2000. From the records, he states that he had examined seven persons in dire stage to the hospital. Three of the patients were medical legal cases. The doctor has stated the timing of the examination of all the patients. Referring to the emergency register on 03.11.2000 at 3:30 17 PM, he states that he had examined Bandana Kumar along with one Rinku Kumari, daughter of Ajay Kumar Pandey. This witness has also stated that Bandana Kumari was examined on 01.11.2000, 03.11.2000 and 04.11.2000 as out door patient. On 03.11.2000, he states that he had seen 40 new cases. According to this witness, Bandana Kumari was suffering from fever and vomiting. In the prescription, he has noted her temperature. On 04.11.2000, he examined her at 11 PM and her condition was serious and she was given 5% Dextrose and Dexona and thereafter it is said that Bandana Kumari died. In his cross-examination, he had also stated that he had advised to appellant to get the postmortem done and also advised him to take to Gorakhpur when he came on 04.11.2000 but she succumbed to her illness. According to this witness, the lady was suffering from meningitis. Nothing can be elicited from this witness which can be disbelieved