Arun Kumar vs The State of Bihar

Gopal Prasad, J.—No one appeared on behalf of the appellant.

Heard the learned counsel for the State.

The appellant convicted under Section 498A of the Penal Code sentenced to undergo rigorous imprisonment for ten years.

The prosecution case as alleged that the victim-deceased, Leelavati Devi, was married with Arvind Kumar on 24.04.1987 and went to sasural on 28.02.1988, after rukhsati. There is allegation of demand of scooter as dowry from the date of negotiation of marriage. The informant was not economically sound to meet the demand and so Leelavati Devi was being vexed and tortured on account of non-fulfillment of demand. The, further, allegation is that used to assault black and blue as a result she become unconscious and so was brought to labour ward where she was undergoing treatment and on 11.08.1988 she breathed her last and the informant got information, went to hospital and found her dead.

On the inquest report, the first information report was lodged and the investigation prepared the inquest report prepared and the post mortem conducted, charge sheet submitted, case committed to the Court of Sessions.

During the trial charge was framed. Fourteen witnesses were examined. The defence has also adduced twelve witnesses. However, the charge framed for offence under Sections 302/ 34 of the Penal Code, 3 of the Prohibition Act and 498A of the Act.

In the trial Court test identification chart has not been proved the oral and documental evidence of P.Ws. 1, 2, 3, 4 and 5, own relatives of the victim-deceased and they are the persons who only visited the hospital in between 09.07.1988 to 11.07.1988 and out of them some only stated that they saw some black mark of assault on the person of victim-deceased. However, they are not eye witnesses to the occurrence. Though P.Ws. 6 and 7 claimed to be eye witnesses, but, their evidences have been disbelieved in view of the fact that they did not disclose the fact about assault either to their father of any of the family members nor to the police till lodging of first information report on 11.07.1998 though they are full sisters of deceased. They are neither stated about the fact to their father nor to any family members in hospital and not even to the investigating officer. The investigating officer has also stated that the fact was not disclosed to him. P.W. 8 is the doctor, who conducted the post mortem examination on the person of the deceased and he also did not find any injury on the chest. However, the doctor mentioned about four injuries, bruise on right arm, left thigh, left arm and left side of neck. On dissection, the left kidney was found to be lacerated and ruptured, however, he opined that the cause of death was abdominal injury by hard and blunt substance, may be possible by a rod and there was no external injury and the four external injuries found had no nexus with the external injuries of rupture of kidney and though the death opined due to abdominal injuries, but, there is no external sign of injury and, further taking into consideration the fact, i.e., the kidney is lacerated or ruptured, it must have bleeding injury and in some case blood goes with urine and other blood goes through pretrial cavity, but, did not find blood in the pretrial cavity, hence, it was found that rupture of kidney was not due to result of external force, but, it was caused by indirect violence.

P.W. 12, the father, though has deposed that there was demand of scooter, but, his statement found to be concocted and has not stated this fact even to the Magistrate thought it was found substantiated in the letter, written by the deceased, Exhibit 2, in which she has alleged to have been assaulted, but, not whispered about any demand, hence, the trial Court taking into consideration the fact that P.W. 9 has been tender and P.Ws. 10 and 11 have given a go-bye. The Prosecution story was disbelieved for offence under Section 302 of the Penal Code against the appellant for the charge under Section 302/ 34 of the Penal Code, but, convicted the appellant for offence under Section 498A of the Penal Code. On the basis of only evidence in Exhibit 2, the letter of the deceased, in which there is no mention about the assault. The conviction has been recorded under Section 498A of the Penal Code though there is no mention of assault. However, the letter of the victim-deceased has formally been proved and there is no statement of the witnesses and except the formal proof there is no other evidence regarding the demand. The appellant has been acquitted for offence under Sections 302 and 304B of the Penal Code. The entire evidence disbelieved holding P.Ws. 1, 2, 3, 4 and 5 are not eye witnesses to the occurrence. They have not deposed about the demand or subjecting cruelty, P.Ws. 6 and 7, who were the sisters of the victim-deceased though having deposed about demand and subjecting cruelty have been disbelieved and P.W. 12, the father, though has stated about the demand of scooter has also been disbelieved as not reliable for the reason that he has not stated this fact to the investigating officer in course of statement under Section 161 of the Criminal Procedure Code and, hence, the conviction solely based on the letter of the victim-deceased, Exhibit 2. However, the letter, Exhibit 2 of the victim-deceased can only be admissible under Section 32 of the Evidence Act. However, the dying declaration is admissible in the evidence only to the extent relating to the cause of death or in circumstance resulting in any death. However, the appellant has been acquitted for offence under Sections 302 and 304B of the Penal Code and convicted under Section 498A of the Penal Code on the sole basis of the letter, Exhibit 2, is not sustainable, hence, the conviction and sentence recorded under Section 498A of the Penal Code is not sustainable and is hereby set aside and the appeal is allowed.