Allowed

Mithun Kumar @ Mithun Yadav v. The State Of Bihar

Patna HC14 Sept 2017CR. APP (SJ)/516/2014

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for dowry death, the High Court held the appeal allowed. Finding the prosecution failed to corroborate the dying declaration and proving dowry demand, the court acquitted the appellant and ordered his release.

What did the court decide?

Conviction and sentence set aside; appellant acquitted and directed to be released from custody.

Mithun Kumar @ Mithun Yadav Vs The State Of Bihar — Dowry and Cruelty | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.516 of 2014

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Arising Out of PS.Case No. -25 Year- 2012 Thana -MAHILA P.S. District- BHAGALPUR

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=========================================================== Mithun Kumar @ Mithun Yadav Son of Fucho Yadav @ Awadh Kishore Yadav Resident of Village-Kharik Bazar, P.S.-Kharik, District-Bhagalpur.

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The State of Bihar		.... .... Appellant/s Versus
=====================	====	.... .... Respondent/s ==================================
Appearance : For the Appellant/s For the Respondent/s =====================	: : ====	Mr. Radha Mohan Singh Mr. Dilip Kumar Ms. Abha Singh, APP ==================================
CORAM: HONOURABLE JAISWAL	MR. OR	JUSTICE PRAKASH CHANDRA AL JUDGMENT

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Date: 14-09-2017

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Heard learned counsel for the appellant as well as learned APP for the State.

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2. This appeal has been preferred against the Judgment and Order of conviction dated 24.07.2017 and order of sentence dated 07.08.2014 passed by the learned 4^th Additional Sessions Judge, Naugachia (Bhagalpur) in Sessions Trial No. 1177 of 2012 arising out of Naugachia (Mahila) P.S. Case No. 25 of 2012, whereby the learned lower convicted the appellant for the offence punishable under Section 304-B of the Indian Penal Code and sentenced him to undergo R.I. for ten years and also slapped him with a fine of Rs. 5,000/- and in default of payment of fine to further

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undergo R.I. for six months.

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3. The factual matrix of the case is that Naugachia (Mahila) P.S. Case no. 25 of 2012 was initially instituted under Sections 498A, 324, 307/34 of the Indian Penal Code and 3/4 of the D.P. Act and subsequently added with Section 304-B of the Indian Penal Code against the accused persons, namely, Mithun Kumar @ Mithun Yadav, Savitri Devi, Fucho Yadav and Jitendra Yadav on the basis of fardbeyan of Babita Devi W/o Mithun Kumar R/o Kharik Bajar P.S Kharik District-Bhagalpur recorded at bed no. 4 Surgery Ward of J.L.M.N.C.H. on 24.04.2012 at 08:00 PM by S.I. R.N. Chaudhary P.S. Barari District-Bhagalpur with the allegation, in succinct that, on 19.04.2012 at about 07:00 PM, while she was cooking bread at her matrimonial house, her mother namely, Sumitra Devi and husband Mithun Kumar demanded Rs. 25,000/claiming that her father has given only Rs. 25,000/- on tilak. On venting inability of her father to cough up their demand, her motherin-law caught hold her hand and on order given by her, her husband doused kerosene oil on her and set her ablaze by means of match. Her father-in-law Fucho Yadav and brother-in-law Jitendra Yadav were present there, but they did not make any protest. Locals rushed there responding alarm made by her and saved her from burning and reprimanding her in-laws, got her admitted in the hospital where she

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is undergoing treatment.

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4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet under Section 304-B/34 of the Indian Penal Code against the accused namely, Mithun Kumar @ Mithun Yadav showing accused Fucho Yadav, Sumitra Devi as absconder and accused Jitendra Yadav as not sent up.

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5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and on transfer finally the case came in seisin of the learned 4^th Additional Sessions Judge, Naugachia (Bhagalpur) for trial.

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6. Charge against the accused Mithun Kumar @ Mithun Yadav was framed under Sections 307/34, 304-B/34 and 302/34 of the Indian Penal Code. Charges were read over and explained to him to which he pleaded not guilty and claimed to be tried.

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7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether ten prosecution witnesses namely, Rita Devi as PW-1, Tuneshwar Yadav as PW-2, Dipak Kumar Yadav as PW-3, Pradip Yadav as PW-4, Ganpati Yadav as PW-5, Suresh Yadav as PW-6, Mantu Yadav as PW-7, Dr.

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Yogesh Prasad Sah as PW-8, I.O. Swyam Prabha as PW-9 and constable Rajdeo Paswan as PW-10. Out of the aforesaid witnesses, PW-10 happens to be the formal witness. In documentary evidence, the prosecution has also filed and proved certain documents.

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8. The statement of the accused was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming himself to be innocent. In ocular evidence, the defence has examined 3 witnesses namely, Vyash Prasad Yadav as DW-1, Amit Kumar as DW-2 and Arun Poddar as DW-3.

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9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph.

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10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred the present Criminal Appeal.

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11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not.

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12. It is submitted by the learned counsel for the appellant that the prosecution witnesses including father and mother of the deceased have not supported the prosecution case. PW-1

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(Rita Devi) and PW-7 (Mantu Yadav) who happen to be the fardbeyan witnesses have also not corroborated the factum of recording of the fardbeyan before them. The police officer who has recorded the fardbeyan of the deceased (Babita Devi) has also not been examined by the prosecution. Thus, the defence has been deprived of cross-examination of the said witness and for want of the non-examination of the said witness, fardbeyan of the deceased (Babita Devi) does not stand proved. Learned counsel for the appellant further submitted that learned lower court has laid much emphasis on the fardbeyan treating it as her dying declaration, but the said fardbeyan of the deceased (Babita Devi) is not admissible as dying declaration because the police officer recording the said fardbeyan has not been examined by the prosecution. Though, her fardbeyan was recorded in the hospital, but there is no certificate of doctor on it to the effect that the Babita Devi was mentally fit to give her fardbeyan. It is also not certified by the Magistrate. Moreover, the two fardbeyans named witnesses namely, PW-1 (Rita Devi) and PW-7 (Mantu Yadav) have also not supported the factum of recording of the aforesaid fardbeyan before them. Thus, the aforesaid fardbeyan of the Babita Devi cannot be treated as dying declaration and cannot be relied upon for conviction of the appellant. Fardbeyan of Rita Devi marked as Ext. 5 has also not

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been proved by the police officer recording the same and it has also not been corroborated by the Rita Devi examined in the case as PW1. There is no cogent, convincing and trustworthy evidence regarding any demand of dowry and subjecting the victim to torture over the said demand soon before her death. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, the impugned judgment and order passed by the learned lower court is liable to be set aside and the appellant is entitled to be acquitted from the charges levelled against him.

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13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence has submitted that though none of the prosecution witnesses have supported the prosecution case, but there is a dying declaration of the deceased which is fully reliable. The said dying declaration of the deceased also stands corroborated by the fardbeyan of her mother namely, Rita Devi. The death of the deceased has occurred in her matrimonial house in otherwise than in normal circumstances within seven years of her marriage and the demand was made by the accused and his family members and she was subjected to torture in connection with the said demand and

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finally set ablaze. The learned lower court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be sustained and this appeal has no substance in it and is liable to be dismissed.

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14. For conviction of an accused for the offence punishable under Section 304-B of the Indian Penal code, four ingredients of the said Section i.e. death of the deceased within seven years of her marriage, in otherwise than in normal circumstances, demand of dowry from the deceased and subjecting the deceased to torture in connection with the said demand by her husband or relatives of her husband soon before her death are required to be proved by the prosecution.

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15. From perusal of record, it appears that it is the case of prosecution that the deceased has died within seven years of her marriage and said aspect of the case has not been denied by the appellant.

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16. As per prosecution case as alleged in the fardbeyan, the deceased was set ablaze by the appellant by dousing kerosene oil on her at the instance of his mother over not coughing up of the demand of dowry of Rs. 25,000/-, but from perusal of testimonies of the witnesses, it appears that PW-1 (Rita Devi) who happens to be

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the mother of the deceased has stated in paragraph 2 of her examination-in-chief that she got information from her matrimonial house that Babita Devi has died by burning due to catching of fire in her saree from dhibri . In paragraph 4 of her cross-examination, she has further stated that she got information that Saree of the Babita Devi had caught fire from the dhibri during the course of cooking food resultantly she was burnt to death. PW-2 (Tuneshwar Yadav) who happens to be the father of the deceased has stated in paragraph 3 of his cross-examination that he had listened that his daughter Babita Devi has burnt by catching fire during the course of cooking food. While PWs-3, 4, 5, 6, and 7 have not whispered about the cause of death of Babita Devi. Moreover, PW-7 (Mantu Yadav) in paragraph 4 of his cross-examination has vented his inability to disclose about the cause of burning of Babita Devi. Thus, from perusal of testimonies of PWs 1 to 7 who happen to be the material witnesses of the case, it appears that the prosecution has utterly and miserably failed to substantiate its case as alleged in the fardbeyan that Babita Devi was set ablaze by her husband (appellant) by dousing kerosene oil on her at the instance of her mother over not coughing up of dowry demand of Rs. 25,000/-.

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17. Though, as per prosecution case, there was demand of dowry of Rs. 25,000/- by the accused persons and on venting

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inability of her father to cough up the said demand, her husband (appellant) set her ablaze by pouring kerosene oil on her at the instance of his mother, but mother of the deceased Rita Devi has stated in paragraph 4 of her cross-examination that her daughter and son-in-law used to visit at her house together. In paragraph 5 of her cross-examination, she has candidly stated that her son-in-law never thrashed her daughter and also never demanded any dowry. PW-2 (Tuneshwar Yadav) who happens to be the father of the deceased has also candidly stated in paragraph 4 of his cross-examination that accused Mithun Kumar and his father never demanded any dowry from him and his daughter has never made any complain about the demand of dowry by the accused. PW-5 (Ganpati Yadav) in paragraph 3 of his cross-examination has stated that he never heard about any feud between the couple in the village. While the rest material witnesses have not whispered about the aforesaid aspect of the case. Thus, on perusal of the aforesaid testimonies of the prosecution witnesses, it appears that the said witnesses have not supported the case of the prosecution that the appellant or his family members demanded Rs. 25,000/- as dowry and subjected the deceased to torture or harassment in connection with the said dowry demand soon before her death. Thus, the aforesaid material and vital ingredients remained un-established by the prosecution.

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18. The fardbeyan of the deceased (Babita Devi) marked as Ext. 3 allegedly corroborated by fardbeyan of the Rita Devi marked as Ext. 5 has been relied upon by the learned lower court for conviction of the appellant treating the same as dying declaration and conclusive piece of evidence in this regard.

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19. On perusal of the record, it appears that the Babita Devi had sustained burn injuries on 19.04.2012 at around 07:00 PM and she was hospitalized in J.L.M.N.C.H. Bhagalpur due to said burn injuries and her fardbeyan was recorded by A.S.I. R.N. Chaudhary of P.S. Barari on 24.04.2012 at 08:00 PM i.e. after five days of the incident in presence of her mother namely, Rita Devi and there is one other witness namely, Mantu Yadav who happens to be the maternal uncle of the deceased in the fardbeyan but the said Rita Devi and Mantu Yadav have not supported the factum of recording of fardbeyan by the police before them. As PW-1 (Rita Devi) in paragraph 5 of her cross-examination has failed to resurrect her memories as to whether the police had obtained her L.T.I. and she has candidly denied the recording of fardbeyan of Babita Devi in the hospital before her. Though, PW-7 (Mantu Yadav) has stated in paragraph 1 of his examination-in-chief that his signature is on the fardbeyan of Babita Devi as a witness and has identified his signature on the fardbeyan marked as Ext. 1, but in paragraph 4 of

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his cross-examination, he has candidly stated that the fardbeyan of the Babita Devi was not recorded before him. He had neither read the said fardbeyan nor was read over to him by the police. He had put his signature on it at the instance of S.I.

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20. Though, the fardbeyan of the Babita Devi was recorded in the hospital, but it has not been certified by any doctor of the hospital as to whether Rita Devi was mentally fit to give her fardbeyan. Moreover, the author of the fardbeyan namely S.I. R.N. Chaudhary has also not been examined by the prosecution and no plausible explanation has been assigned by the prosecution for nonexamination of the aforesaid author of the fardbeyan. Nonexamination of the author of the fardbeyan prejudicially affected the appellant as he was denied the opportunity of cross-examination of said author of the fardbeyan.

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21. From the perusal of the aforesaid fardbeyan, it also appears that the police officer recording the aforesaid fardbeyan has not even mentioned as to whether Babita Devi was in mentally fit condition for making such statement particularly when she had sustained 70-80% burn injuries right from leg to shoulder. Hon’ble Apex Court in Panchanand Mandal @ Pachan Mandal & Anr. Vs. State of Jharkhand reported in 2013(4) Crimes 194 (SC) has been pleased to rule that person recording the dying declaration neither

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examined nor cross-examined, conviction on such declaration is not safe. In the said case, the Hon’ble Apex Court has further been pleased to observe that author who recorded the dying declaration was not produced by the prosecution for examination or crossexamination. Non-appearance of the A.S.I. has prejudicially affected the defendant’s interest as they were denied the opportunity to cross-examine him. It is admitted that dying declaration was not certified by any medical expert stating that the deceased was in medically fit condition for giving statement. Though such certificate is not mandatory, it was the duty of the officer who recorded the same to mention whether the deceased was in mentally and medically fit condition for making such statement, particularly when the case was of a third degree burn which could lead to death . Hon’ble Apex Court in Nanhau Ram Vs. State of M.P. reported in A.I.R. 1988 SC 912 has been pleased to rule that normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail . But the case under hand, none of the witness has stated that Babita Devi is in a fit condition or conscious state to make the dying declaration. Hon’ble Apex court in State of

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U.P. Vs. Madan Mohan & others reported in A.I.R. 1989 SC 1519 has been

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pleased to rule that where the prosecution version about occurrence differs from the version as given in the dying declaration, the said declaration cannot be acted upon . In the case under hand, Babita Devi has stated that she was demanded dowry of Rs. 25,000/- by her husband and on venting inability of her father to cough up their demand, at the instance of his mother, her husband set her ablaze by pouring kerosene oil on her, but none of the witnesses examined by the prosecution has supported the aforesaid version of the Babita Devi rather PW-1 and PW-2 who happen to be parent of the deceased have denied any demand of dowry by the appellant and subjecting the deceased to torture in connection with the said demand and making any complain by Babita Devi with them regarding the same. The prosecution witnesses have also stated that Babita has died by catching her saree fire during the course of cooking and thus, the prosecution versions is quite contradictions to the aforesaid version of the Babita Devi, hence the said fardbeyan of Babita Devi cannot be acted upon as dying declaration.

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22. The fardbeyan of PW-1 Rita Devi (mother of the deceased) has also not been proved by the said witness rather by I.O. of the case namely, Swyam Prabhu (PW-9) and PW-1 Rita Devi has also not corroborated the factum of giving such fardbeyan by her

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before the police, so the fardbeyan of deceased Babita Devi also does not stand corroborated by the fardbeyan of Rita Devi.

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23. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charge under Section 304-B levelled against the appellant beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned lower court is set aside and the appellant is acquitted of the charge levelled against him. As the appellant is in custody, he is directed to be released forthwith from the custody, if not wanted in any other case. Accordingly, this Criminal Appeal is allowed.

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(Prakash Chandra Jaiswal, J)

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rohit/-

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AFR/NAFR	AFR
CAV DATE	N.A.
UploadingDate	23.09.2017
Transmission Date	23.09.2017

Mithun Kumar @ Mithun Yadav v. The State Of Bihar

Case brief

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Mithun Kumar @ Mithun Yadav v. The State Of Bihar

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