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Judgment
No one appears for O.P. No. 2.
Five persons were made accused by Smt. Suman Devi, the informant, in her fardbeyan on the basis of which Katras P.S. Case No. 145 of 2005 has been lodged on 28.05.2005 under section 498A/34 IPC and section 3/4 D.P. Act.
The accused persons, namely, Birendra Narayan, Brajendra Narayan, Shanti Devi, Namita Devi and Manik Rawani were sent up for trial on the above charges.
During the trial, the prosecution has examined as many as nine witnesses; the informant is P.W.8, her mother is P.W. 7 and her father is P.W.4. Brother and uncle of the informant have also been examined during the trial. In her fardbeyan, the informant has stated that her marriage was solemnised with Birendra Narayan on 26.04.2002 and at the time of marriage her father gave numerous gifts and Rs. 50,000/- for purchase of Hero Honda motorcycle. According to the informant, Rs. 50,000/- was demanded by the accused persons as dowry. After the marriage, her husband, brother-in-law as well as mother-in-law again started demanding Hero Honda motorcycle. Her father came to her matrimonial home and tried to pacify the accused persons, however, on 23.04.2005 her mother-in-law and brother-in-law again asked her to bring money for purchase of Hero Honda Motorcycle else she would be killed. Her parents thereafter came to her house on 25.04.2005 and tried to pacify the accused persons, however, they were also assaulted by them. In her examination-in-chief, the informant has largely reiterated her story as described by her in her fardbeyan. In the Court, she has stated that on 18.04.2002 his father gave a fridge to her and when she was pregnant and even after she gave birth to a girl child, the accused persons persisted with demand of Rs. 50,000/-. Mother of the informant has deposed that Birendra Narayan started demanding Hero Honda motorcycle and Rs. 50,000/-. She says that on 25.04.2005 when she visited the matrimonial home of her daughter along with her son, she found her daughter in serious condition. She says that when they inquired from Birendra Narayan, her son-in-law, they were assaulted by his brother and friends. Father of the informant has also spoken about demand of Rs. 50,000/- and gift of a fridge; cash-memo dated 18.04.2002 was tendered by him in the evidence. Brother of the informant has admitted that Manik Rawani stayed at Koylanagar with his wife and Birendra Narayan Rawani, the petitioner, lives in Katras Railway quarter with his sister, the informant. He has deposed that the injured persons were brought to Vardan Clinic by his father. Uncle of the informant who has been examined as P.W. 3 is a hearsay witness.
Before proceeding further, I intend to indicate that deposition of the informant, her father, her mother and her brother contradict each other on many aspects. There are inconsistencies in their evidences. The mother of the informant says that they were assaulted by the brother and friends of her son-in-law, the informant says that she has made a compliant to the police and the matter was compromised and, thereafter, she went to her matrimonial home on 23.04.2004, however, these allegations were not proved.
The learned trial judge has recorded a finding that the informant has implicated Namita Devi and Manik Rawani to harass the relative of her husband. He has also held that P.W. 2 is a tutored witness and P.W.3 is an interested and hearsay witness. It is also noticed by the trial judge that injury report was not produced during the investigation and it was tendered in evidence for the first time during the trial, however, the doctor who has prepared the injury report was not examined by the prosecution and, therefore, the injury report was excluded from consideration. The trial judge has also found that the alleged compromise petition was not signed by Birendra Narayan, husband of the informant.
The trial court has acquitted Namita Devi and Manik Rawani on the ground that they were residing separately.
The appellate court has acquitted Brajendra Narayan and Shanti Devi.
And, the charge under section 3 Dowry Prohibition Act has failed against all the accused persons and while so, the allegation of demand of dowry has not been proved.
It has come on record through the evidence of P.W.5 and P.W.6 that there was dispute between the informant and her husband on the issue of maintaining the family of her husband. The witnesses - P.W.5 and P.W.6 - have spoken about quarrel between the couple on this issue. The husband of the informant was granted compassionate appointment for which he was required to maintain his family, however, the informant was forcing him to disown his family and this has led to quarrel with her husband. The prosecution witnesses namely, Bijay Kr. Mahajan-P.W.5 and Mahesh Ram-P.W.6 have not been declared hostile by the prosecution on this point and, therefore their evidence is binding on the prosecution.
The accused-Birendra Narayan has examined himself as defence witness under section 315 Cr.P.C and he has stated about difference with his wife which has led to filing of a criminal case by his wife against him and his family members.
Section 354 of the Code of Criminal Procedure, 1972 provides the language and the contents of judgment. Under section 354 Cr.P.C, it is a mandate in law that every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. It is also a well-accepted principle in law that the yardstick with which the defence evidence is examined should be the same as with which the prosecution's evidence is tested. In law, it is the duty of every judge while scrutinizing the evidences laid before him to find out the inherent probability/improbability in the evidence of the witnesses and whether the evidence led by the accused persons probalises their version of the occurrence.
Birendra Narayan, the appellant, who has been examined as D.W.1 has remained unshaken during his cross-examination by the prosecution; nothing material could be elicited by the prosecution from him during his cross-examination.
There was considerable delay in lodging the First Information Report; the learned trial judge has himself recorded that the informant has not explained the cause of delay in lodging the First Information Report, however, in the later part of paragraph no. 20 of the judgment in G.R. Case No. 1706 of 2005 the learned judge records that the informant has properly explained the inordinate delay in lodging the First Information Report.
I find that approach of the learned Judge on this issue was erroneous.
In my opinion, evidence of the prosecution witnesses, particularly P.W.5 and P.W.6, inconsistencies in the evidence of the informant when read together with the evidence of his father, mother and brother, acquittal of other accused persons and inordinate delay in lodging the complaint with the police, cloud the prosecution's case with doubt. The aforesaid inconsistencies and lacuna in the prosecution's case make a serious dent in the prosecution's story as floated by the informant.
In the end, I am of the opinion that the appellant, namely, Birendra Narayan @ Birendra Narayan Rawani, is entitled for the benefit of doubt.
The judgment dated 11.07.2016 passed in Criminal Appeal No. 120 of 2013 is set-aside, and consequently the judgment of conviction under section 498A IPC and the order of sentence of R.I for two years and fine of Rs.500/-, both dated 02.03.2013, passed by the Judicial Magistrate 1st Class, Dhanbad in G.R. Case No. 1706 of 2005 against the appellant-Birendra Narayan @ Birendra Narayan Rawani are set-aside.
The appellant namely, Birendra Narayan @ Birendra Narayan Rawani in G.R. Case No. 1706 of 2005, who is on bail, is discharged of liability of the bail-bonds furnished by him.
Criminal Revision No. 939 of 2016 is allowed.