SUBODH KOTWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30.9.93 and 1.10.93, respectively, passed by 1st Additional Sessions Judge, Godda, in Sessions Case No. 165 of 1992/7 of 1992 convicting both the appellants under Sections 302/34 and 304B of the Indian Penal Code (in short, IPC) and sentencing them to imprisonment for life under Sections 302/34 IPC. No separate sentence has been passed under Sections 304B/34 IPC.

(2.) THE case of prosecution, in short, is that on 20.6.92 at about 7 AM one Garbhu Raut (not examined) told the informant Arjun Manjhi (P.W. 5) that the members of her Sasural after killing his Bhagini (niece) Phutani Devi had thrown her dead body into a well. THE informant then went to Village Devbandha where 'sasural' of Phutani Devi is situate and found the dead body of Phutani Devi in a well. Phutani Devi was married to appellant Subodh Kotwal about four years prior to 20.6.92 and her 'Gauna' had taken place about 7 months prior to it. On 17.6.92, when the informant had gone to Village Devbandha to meet her 'Bhagini' at that time she had told him that her husband Subodh Kotwal, her father-in-law Digambar Kotwal and her mother-in-law Sarjug Devi (since dead) were demanding a sun of Rs. 10,000/- from her and were asking her to bring the money from her parents and on this account they were abusing her and quarrelling with her and were giving threatening that she would be killed. THE informant then after pacifying Phutani Devi returned to his home and thereafter on 20.7.92, he received information of the murder of Phutani Devi from Garbhu Raut. On the same day at about 11.30 a.m. fardbeyan (Ext. 2) of informant, we as recorded by police in the Village Devbandha and a case under Sections 302/201/34, IPC was registered against both the appellants and Sarjug Devi, mother-in-law of Phutani Devi. THE police after investigation submitted charge-sheet under Sections 304B/201/34, IPC against both the appellants and Sarjug Devi. After taking cognizance the case was committed to the Court of Sessions. Co-accused Sarjug Devi died while she was in jail custody. Charges under Sections 302/34 and 304B/34, IPC were framed against both the appellants who pleaded not guilty and they were put on trial. THE case of appellants as it appears from the trend of cross-examination of prosecution witnesses is that the deceased had gone to a well for bringing water and accidentally she slipped into the well and died.

(3.) ARJUN Manjhi (P.W. 5), the informant, in his evidence, has stated that his niece Phutani Devi was married to appellant Subodh Kotwal about four years prior 4.5.93, the date when he was examined and about seven months prior to occurrence her 'gauna' was performed and she thereafter went to her 'sasural' for the first time and three days prior to occurrence he had gone to Devbandha to meet Phutani Devi where she told him to save her life and give a sum of Rs. 10,000/- to the members of her 'sasural' as dowry even at the cost of selling the landed-property. He tried to explain the matter to the in-laws of Phutani Devi but both the appellants and mother-in-law of Phutani Devi were adamant of their demand of a sum of Rs. 10,000/- as dowry and threatened that otherwise they after killing Phutani Devi would throw her dead body and he then returned to his house and thereafter, went to the house of his sister at village Pasai where he narrated the aforesaid fact to his sister Godabari Devi (P.W. 3) and his brother-in-law Amik Yadav (P.W. 1) who both expressed their inability in fulfilling the demand of appellants on the ground of their poverty and he then came back to his home. He has further stated that thereafter Garbhu Raut on a Saturday at about 4 a.m. came to his house and informed him that both the appellants along with Sarjug Devi after killing Phutani Devi had thrown her dead body into a well and he then went to village Devbandha where in his presence the police took out a dead body from a well and he identified the dead body which was of his 'bhagini' Phutani Devi. His fardbeyan (Ext. 2) was recorded by the police there. In his cross-examination, he has admitted that his own Sasural' is also in Village Devbandha and his elder sister Asho Devi has been married in that village but when he had gone to the 'Sasural' of Phutani neither any one from his 'Sasural' nor from the 'Sasural' of his sister came there and he also did not go either to his 'Sasurar or to the 'Sasural' of his sister. Although in para-3 of his evidence, he has stated that three days prior to the occurrence, he had gone to village Devbandha on the call of his 'Bhagini' which was conveyed to him by his sister Godabari by coming to his house and for the first time in his life he had gone to village Devbandha on that day, but in para-11 of his evidence, he has stated that about 18 years prior he was married in village Devbandha and after his marriage for about ten times, he had visited his Sasural in that village. To a question that during the stay of Phutani in her Sasural for how many times he went to village Devbandha, he replied that not even once but it appears that perhaps by giving this reply he means his earlier visit to the Sasural of Phutani. Amik Yadav (P.W. 1) is the father of Phutani Devi and he has stated that Phutani was married to appellant Subodh Kotwal and on a Saturday in his absence appellant Digambar Kotwal had come to his house and told his wife that Phutani had fled away and when his wife told him that Phutani cannot flee away and it appeared that he might have killed her, he fled away and when he returned to his house his wife told him the aforesaid fact and on that day at about 10 a.m. he received information that dead body of Phutani had been found in a well and he along with his wife went to Devbandha where he found police under a 'Peepal' tree and he then told the police that appellants had killed her daughter and fardbeyan of his 'sala' ARJUN Manjhi was recorded by police. He has further said that in the month of 'Baishakh' he had gone to the Sasural of Phutani for bringing her and at that time the appellant Subodh Kotwal had demanded a sum of Rs. 10,000/- from him and when he expressed his inability appellant Subodh Kotwal told him to sell his 'barf and give him money and when he again did not agree to this proposal appellant Subodh Kotwal abused Phutani and assaulted her and did not permit her to come with him. Appellant Digambar Kotwal and his wife Sarjug Devi also abused and he then went to the Sasural of his elder daughter. He has admitted that he did not see the dead body of his daughter but it was seen by his wife. He has further said that five years before the death of Phutani she was married to appellant Subodh Kotwal. In his cross-examination, he has said that after marriage Phutani had come to his house only on one occasion and at that time also he had gone for bringing Phutani from her Sasural to his house. In para 8 of his cross-examination, he has said that immediately after marriage Phutani came from her 'Sasural' and lived for four years in his house and thereafter, she went to her Sasural and from that period to her death only once he had gone to bring her daughter from her 'Sasural'. He has said that his wife used to go to 'Sasural' of Phutani and she used to tell him that the members of the family of her in-laws of Phutani were not providing food and clothes to Phutani. He has denied the.suggestion of defence that Phutani was being kept well in her Sasural and was living in her Sasural continuously after her marriage and it is not a fact that she lived for four years in his house after her marriage. He has also denied the suggestion of defence that Phutani fell into a well accidentally when she went to fetch water from the well because, according to him, the height of the well is as such that he himself is unable to climb to that height and it was not possible for Phutani who was a female of climb up to the height of the well.