CRIMINAL APPEAL No.8 OF 2005 (Against the judgment and order dated 5.11.2004 of the Additional Sessions Judge, Fast Track Court No.1, Purnea, passed in Sessions Trial No. 467 of 1995/Tr. No.04 of 2004). DEEPAK KUMAR TIWARY @ DEEPAK TIWARI …………APPELLANT VERSUS STATE OF BIHAR -------- RESPONDENT WITH CR. APP (SJ) No.129 of 2005 1. CHANDAN TIWARY 2. SHIV SHANKAR TIWARY 3. SRI RAM TIWARY 4. JAYANTI DEVI @ JAYANTI TIWARY ……APPELLANTS VERSUS STATE OF BIHAR------------------RESPONDENT For the appellants : Mr. Vikram Singh, Advocate For the State : Mr. Lala Kailash Behari Pd. Sr. Adv.(APP) P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C. M. Prasad, J. Both the appeals arise out of the same judgment and hence they have been heard together and are being disposed of by this common judgment. 1. This appeal is against the judgment dated 5.11.2004 of the Additional Sessions Judge, Fast Track Court No.I, Purnea as passed in Sessions Trial No. 467 of 1995/Tr. No. 04 of 2004 whereby, the appellant Deepak Kumar Tiwary has been convicted under Sections 498A and 342 of the Indian Penal Code and, respectively, sentenced to R.I. for three years and a fine of Rs. - 2 - 500/- and, in default of payment of fine, R. I. for three months and R.I. for one year. Each of the remaining four appellants, namely, Chandan Tiwary, Shiv Shankar Tiwary, Shri Ram Tiwary and Jayanti Devi @ Jayanti Tiwary, has been convicted under Section 498A and 342 of the Indian Penal Code and respectively sentenced to R.I. for one year and a fine of Rs. 500/- and, in default of payment of fine, R.I. for three months and R.I. for six months. 2. The appellant Deepak Kumar Tiwary is the husband. Chandan Tiwary and Shiv Shankar Tiwary are Dewars. Shriram Tiwary is the father-in-law and Jayanti Devi is the mother-in-law of the victim lady. 3. The informant Rameshwar Tiwary, father of the victim Sati Kumari lodged an F.I.R. alleging that the accused-appellant Deepak Kumar Tiwary had kidnapped his daughter and for that he had lodged a case under Sections 366 and 366A under Banmankhi P.S. Case No. 77 of 1992. It was further alleged that Deepak Kumar Tiwary solemnized Court marriage with Sati Kumari and out of the wedlock, a child was also born. Further allegation was that on 4.6.1993 he received a letter from his daughter wherein she stated that she was not being well treated in her Sasural. She was not being given food and that she was apprehending threat to her life. The informant also alleged that on 5.6.1993 he received another letter wherein it was alleged that she had been badly beaten and she was also kept confined in the Sasural house. Further allegation was that the informant tried to meet his daughter but he - 3 - was not allowed to meet her. Then the informant lodged a case under Banmankhi P.S. Case No. 137 of 1993 under Sections 498A, 307 and 342/34 of the Indian Penal Code against the appellant. The case was investigated and charge sheet was submitted and thereafter, the appellants were tried and they have been convicted and sentenced as above. 4. As many as three witnesses were examined by prosecution and the defence also examined two witnesses. The P.W. 1 was the victim Sati Kumari herself. P.W. 2 was the informant and P.W.3 was the doctor who had examined injuries on the victim lady. The D.Ws. 1 and 2, who were examined by the appellants are the co- villagers and they deposed that the victim was living happily in her Sasural house and that any kind of torture and harassment was not meted to her. The learned trial court did not put reliance on the evidence of the defence witnesses on the ground that they admitted that they had never met the victim lady and that they had no opportunity or occasion to learn about what was happening inside the Sasural house. 5. The victim deposed before the trial court on 5.8.2002 stating that the occurrence was of the year 1992 i.e. ten years back when she was reading in second year in Aanandi Mahila Mahavidayalaya and that one of the subjects she read was music. The appellant Deepak Kumar Tiwary was a music teacher who taught her music and that in course of teaching he enticed her and proposed for marriage asking her to come alone in the night in an - 4 - orchard in the village. She further deposed that under that enticement, she left her house in the night and met the appellant Deepak Tiwary and his brother Chandan Tiwary in the orchard who took her to Bihariganj and from there to Patna and further to Bhopal and ultimately to Delhi. She stated that at Delhi, the appellant Birendera Upadhayaya (father-in-law) met her and he asked for a marriage with Deepak Tiwary and accordingly she performed court marriage in Tis Hazari Court at Delhi. She also deposed that after marriage she was taken to her Sasural house and she was kept well for some time but thereafter, the Sasural people started torturing her. She said that the appellant Deepak Kumar Tiwary was working in a theatre at Mohamadabad and he took her with him there and kept her in a rented house. She further deposed that the owner of a Beauty Parlour there advised her to leave that place apprehending that she might be sold away by Deepak Kumar Tiwary and that on her advice she left that place and returned to her Sasural house. She further deposed that she also visited police station but the police official persuaded her to live amicably and peacefully in her Sasural house. She also stated that on the next day her husband (Deepak Kumar Tiwary) came to Sasural house and he badly beat her for the reason that she had visited the police station. It was also alleged that she was threatened not to go to the police station again and that kerosene oil was also thrown on her but anyhow she escaped and saved herself. She deposed that till then she was living in her Sasural house. In her cross-examination, she - 5 - deposed that she has solemnized a love marriage with Deepak Kumar Tiwary and that her Sasural people was of higher caste and she belongs to lower caste and due to this the Sasural people were not liking her and that when she protested to this attitude of their Sasural people, quarrels used to take place and that when quarrel came to a height, she lodged the case. She also deposed that her Sasural people had harassed her but did not oust her out of the Sasural house. From this statement of the victim, it appears that that the main cause of the occurrence was the disliking in her in- laws due to her being of a lower caste and her protest to this attitude of the in-laws. It is curious to find that in the concluding portion of the cross-examination, she deposed that she had come to Court with father-in-law for adducing evidence. This shows that though the victim lady was deposing against her in-laws but still the father-in-law brought her to the Court for giving her evidence. 6. The P.W.2 Rameshwar Choudhary is the father of the victim and he proved the two letters received from his daughter and he simply deposed that he had received the said letters with the contents that her daughter was being tortured and harassed in her Sasural and that when he tried to met her he was not allowed to meet her and that thereafter he lodged a case. 7. P.W.3 is the doctor who examined the victim on 9.6.1993 and found the injuries which he described in detail in his evidence. The doctor has found three echymosis, two swelling with bruise and one haemotoma, complain of pain on the body of the victim. He also found that the victim looked cachexic and malnourished. - 6 - 8. On consideration of the evidence as adduced by prosecution, I find that so far allegation of torture, harassment or assault is concerned, there is only one specific instance as stated by the victim (P.W.1) that when she had returned from Mohmadabad to her Sasural house and she had visited the police station, the husband had severely beaten her on the next day when he had returned to the house from there. Besides this, there is no specific instance of any kind of assault at the hands of any of the in-laws. No doubt, there is statement that since the in-laws belong to higher caste and she (victim) belongs to lower caste, they disliked her. Due to this, and, that when she protested to it, quarrels took place. It appears that it was due to this dislike and quarrel that the in-laws have been roped in. On the total and comprehensive appraisal of the evidence and the facts and circumstances of the case, it appears that there is evidence against the appellant Deepak Kumar Choudhary that he had beaten the victim and he had also restrained her from going to police station again. In such view of the matters, his conviction under Sections 489A and 342 of the Indian Penal Code appears quite justified and hence, the same is maintained. 9. It is pointed out that appellant Deepak Kumar Choudhary has already served out the sentence and he has come out of jail after serving the sentence. Accordingly, his appeal is dismissed and sentence is confirmed. 10. So far the remaining appellants, namely, Chandan Tiwary, Shiv Shankar Tiwary, Shri Ram Tiwary and Jayanti Devi @ - 7 - Patna High Court, the 28th January, 2008N.A.F.R./Ravi/- Jayanti Tiwary, the in-laws of the victim are concerned, the allegation and the evidence against them is of general and omnibus nature. There is no specific allegation against any of these appellants. In such view of the matters, I find that these appellants are entitled to benefit of doubt. Thus, giving benefit of doubt, each of these four appellants is acquitted of the charges. The judgment of conviction and sentence as passed by the trial court with respect to these four appellants are set aside and the appeal with regard to them is allowed. They are discharged from the liabilities of their bail bonds. Thus the appeal stands allowed in part as indicated above. (Chandra Mohan Prasad, J.)