DUKHAN SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been filed by the three appellants who have been convicted for offence punishable under Section 302/34 and 201/34 of Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life for offence under Section 302/34 of IPC and seven years for offence under Section 201/34 of IPC. The sentences are to run concurrently. The judgment of conviction and sentence being dated 19.01.1991 and 21.01.1991 respectively have been passed by the Additional Sessions Judge II, Vaishali at Hajipur in Sessions Trial No 379 of 1989/7 of 1989. Appellant No 1 is the father -in -law, appellant No 2 is the husband and appellant No 3 is the mother -in -law of the deceased Bhulia Devi. The prosecution case is based on the Fardbayan (Exhibit 2) of Chalittar Sah (PW 8), the father of the deceased Bhulia Devi being PW 8, inter alia, alleging that his daughter Bhulia Devi aged about 18 years was married to appellant No 2 about 3 years back. She went to her sasural and then she came back complaining that her husband, father -in -law and mother -in -law used to harass her. As such, she was retained in her mother 's house. There was a panchayati and pursuant to panchayati, she was then allowed to go to her sasural. On 30.07.1988, Sukan Sah (PW 5) had gone to the village of the informant 's daughter to meet his daughter and upon return he informed the informant that informant 's daughter had been killed by the appellants on 24.07.1988 and she had been cremated, the same day. On learning of this, the informant, his wife and one Ramashish Sah (PW 6) went to their daughter 's sasural. They found appellant No 1, the father -in -law in Uttari (person dressed as having performed last rites) and others went into hiding. They told the informant that you can take whatever expense you had made in the marriage and you can go. Informant, therefore, believed that his daughter had been killed. This Fardbayan was witnessed by one Ramashish Sah (PW 6). Police took up investigation and, after investigation, filed chargesheet upon which cognizance having been taken, case was committed to Court of Session. The three appellants were charged as above and having pleaded not guilty, they were tried. In order to establish the prosecution case, prosecution, in all, examined twelve witnesses. The first five witnesses, who are independent witnesses being PW 1 Jagdish Sah, PW 2 Tulsi Sah, PW 3 Raghunath Sah, PW 4 Dahaur Sah and PW 5 Sukan Sah were all literally declared hostile witnesses. It may be noted here that Sukan Sah (PW 5) is the person who, as per the first information report (FIR), had informed the informant about death of his daughter. PW 6 is Ramashish Sah who, as noted above, was a witness to the Fardbayan. In his examination -in -chief, he has admitted that it is at the request of the informant and his wife that he agreed to accompany them to enquire into the matter with regard to the death of informant 's daughter. He states that Sukan Sah (PW 5) had informed the informant that his daughter had been killed by strangulating her. He further states that when they went to the village of the accused persons, the accused persons said that their daughter had died and they could take back her things and return. It is thereafter that they went to Mahua Police Station (PS) and lodged the case. He further states that because of ill -treatment meted out to the deceased, there had been a panchayati in which the appellants had given an undertaking that they would not mistreat or beat the daughter of the informant. It appears that notwithstanding the aforesaid, the daughter had been killed. In the cross -examination, he accepts that he is neighbour of the informant and the marriage had taken place four years back. He admits that he was not a part of the panchayati. He admits in his cross -examination that when they went with the police, they found appellant No 1 in Uttari. It was suggested to him that the lady had died due to illness which he denies. The next witness is the mother of the deceased being wife of the informant. She has been examined as PW 7. In her examination -in -chief, she states that her daughter had been allowed to go to her sasural after panchayati. On knowing about her death, she, the informant, her husband and Ramashish Sah went to village - Jalalpur where her daughter had been married and they learnt that the daughter had been killed. She states that earlier also, the daughter used to be mistreated because of which there was panchayati and it was provided that if in future, she is mistreated, her in -laws would be liable to pay a cost of Rs 1,000/ -. She denies suggestion that her daughter died because of any illness. The next witness is the father of the deceased who is the informant (PW 8). Again, in examination -in -chief, he talks about panchayati and a fine that was to be imposed upon the appellants on his daughter being mistreated. He proves the panchnama of the panchayati as Exhibit 1. He admits that it was PW 5 Sukan Sah who informed him about the death of his daughter. He states that he had lodged the FIR with Mahua PS and got Dukhan Sah appellant No 1 arrested. He states that he was informed about the death after four days. He further states that when he, alongwith his wife, had gone to the village of his daughter on hearing of her death, everyone had run away. He then states that the panchnama of the panchayati was handed over to the Investigating Officer (IO), the day FIR was lodged. He denies the suggestion that the FIR was belatedly lodged only because he had demanded Rs 2,000/ - but was not paid the same. He denies the suggestion that the girl had died because of illness. PW 9 Nokhi Prasad Choudhary is the formal witness who proves the FIR. PWs 10 and 11, namely, Shankar Sah and Chhote Lal Sah respectively are also formal witnesses who have signed the panchnama as being part of panchayati. They admit that the panchnama is undated. PW 12, the last of the prosecution witnesses is again a formal witness who proves and brings on record the case diary as the IO is not traceable. Learned counsel for the appellants submits that from the evidence of the prosecution witnesses, all that comes is that the parties were married about four years back. The deceased was mistreated. There was a panchayati. Panchayati provided for a fine of Rs 1,000/ - for mistreatment. The girl was reported to have died and had been cremated. He submits that this cannot be a case of homicide inasmuch as there is nothing to show that the deceased had been killed. To the contrary, in the FIR itself, it is admitted that the villagers had participated in the funereal. He may be correct. However, let us examine the defence witness as well. There are four defence witnesses who have been examined. They have each categorically stated that the girl had died because of excessive vomiting and diarrhoea and some of them had attended the funereal. This being the evidence, the first thing to be seen is what is this panchayati because even the trial Court has led great emphasis upon this document to show that the girl was being mistreated and the appellants had undertaken not to mistreat her. The FIR states that it was pursuant to this panchayati that the informant permitted his daughter to be taken to her sasural. The original panchnama of the panchayati which is Exhibit 1. is on record. A mere reading thereof does not support the prosecution version. The document clearly states that if either party misbehaves then they would be socially boycotted and they would be required to pay a fine of Rs 1,000/ -. This virtually demolishes the prosecution case. The prosecution case was that this panchayati was clearly as result of ill treatment of their daughter and the appellants had undertaken to pay fine if they ill treat. This Exhibit 1 does not even remotely suggest it. A dispassionate reading of the document would show that there were differences between the parties and both parties were liable to be penalized if they misbehaved in any manner. Thus to say that the daughter was being tortured in any manner and panchayati directed imposition of fine on the appellants is not correct. This document does not lead us to that conclusion at all. This document is undated. We do now know when it was executed. The other thing we must notice is that when the informant was going to the village of his daughter to make enquiries about her death why would he be carrying this document with him to hand over to the Officer -in -charge where he would go to lodge the FIR. This is not explained. It shows that he had come prepared to lodge FIR even before he had made enquiries which is not logical. It has been suggested to him that in fact he was present at the funereal and, thereafter, there were differences between the parties. He had demanded Rs 2,000/ - towards the cost he incurred in the marriage of his daughter but having not received the same, he filed the case. It must be remembered that both the parties are of a very humble background. The whole case appears to be for failure to pay Rs 2,000/ -. There is not a single witness or a single circumstance which show or point towards a homicide. To the contrary, informant 's own evidence is that villagers had participated in the funereal of his daughter. That would not have been the case if she had been beaten to death. There being no evidence of homicide except bald statement of the informant which is also based on presumption or assumption unsupported by fact or in law. We cannot base or allow a conviction to stand on such assumption which has no legal foundation. In order to convict a person of homicide, first homicide has to be proved by definite evidence which is totally lacking in this case. In that view of the matter, we have no option but to allow this appeal, set aside the judgment and order of conviction and the sentence. The appellants are discharged from the liabilities of their bail bonds.