Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu v. The State of Bihar

Judgment

1. Petitioners, Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu, Ramu Chaudhary @ Raju Chaudhary, Mannu Chaudhary, Maheshwari Devi, Reeta Devi, Sarita Devi @ Sunita Devi assailed the successive judgments dated 05.12.2008 passed by Sub-Divisional Judicial Magistrate, Gaya in G.R. No.2447 of 2002 convicting the petitioners and directing petitioners Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu, Ramu Chaudhary and Mannu Chaudhary to undergo R.I. for three years under Section 498A of the Indian Penal Code, R.I. for one year under Section 323 of the Indian Penal Code and R.I. for one month under Section 341 of the IPC, R.I. for six months as well as fine of Rs.2000/- in default thereof to undergo one month imprisonment additionally under Section 4 of the D.P. Act

2. while petitioners Maheshwari Devi, Reeta Devi and Sunita Devi to undergo R.I. for two years under Section 498A, R.I. for one year under Section 323 of the Indian Penal Code, R.I. for one month under Section 341 of the Indian Penal Code, R.I. for six months as well as fine of Rs.2000/- in default thereof to undergo imprisonment of one month additionally under Section 4 of the D.P. Act as well as judgment dated 24.06.2013 passed by Ad hoc Additional Sessions Judge, IVth, Gaya in Cr. Appeal No.217 of 2008 / 45 of 2009 whereby and whereunder while maintaining the conviction and sentence with regard to other offences, the appeal was partially allowed with regard to Section 341 of the Indian Penal Code.

2. It has been contended on behalf of petitioners that the judgment of conviction and sentence recorded by the learned trial court as well as by the Appellate Court are bad in law as well as on facts. It has further been submitted that successive courts have erred in holding the petitioners guilty for the offences as indicated above in the

background of the fact that prosecution could not be able to substantiate its case. It has also been submitted that the learned successive courts while appreciating the evidence erroneously held that the offences as indicated above is made out contrary to the factual aspect which the prosecution witnesses themselves divulge. Further elaborating this point, it has been submitted that the prosecution evidence are full of contradiction, improbability, inconsistency and to support the same it has been submitted that marriage amongst the

3. parties are admitted one. It is also admitted that “Gauna” was affected much after the marriage. It is also evident from the evidence of the witnesses more particularly victim Sarita Devi (PW-3) that her father was alive five years after the “Gauna” and during midst thereof, neither there was any demand nor she was ever subjected to cruelty or torture. After having enjoying the marital status for such long duration did not justify the subsequent allegation that after death of her father the accused persons began to demand a motorcycle and a T.V. and for that she was tortured. That means to say the prosecution version happens to be improbable, un-digestable, non-appreciable.

3. It has further been submitted that virtually all the petitions were shown to carry omnibus allegation at the end of prosecution witnesses including PW-3, Sarita Devi inasmuch as they have not been able to bifurcate individual act against the petitioners independently whereupon the evidences are fit to be discarded.

4. It has also been submitted that successive courts failed to appreciate the evidence of DWs which has got equal status like prosecution witnesses. Therefore, non-consideration of evidence of the DW in its right perspective happens to be severe lacuna persisting in the successive judgments which make the successive judgments redundant.

5. At the other hand, the learned Additional Public Prosecutor while supporting the finding of the courts below has argued that successive courts minutely gone through the evidences adduced

4. on behalf of prosecution whereupon based their finding attracting application of respective penal provisions whereunder petitioners have been convicted and sentenced. It has further been submitted that there happens to be consistent version of the prosecution witnesses with regard to torture for facilitating fulfilment of demand of dowry. It has further been submitted that earlier activities which was reported to the police, whereupon the police took active role in getting the matter amicably sorted out is also found properly placed and which also suggest the previous conduct of the petitioners. As such, petitioners are not at all entitled for any sympathetic consideration.

6. PW-4, Mahendra Chaudhary filed written report on

19.11.2002 disclosing therein that his sister Sabita Devi was married with Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu about 10 years ago and her “Gauna” was effected about five years ago at the time of which they had gifted articles according to their status and means. Her “Sasuralwala” was not satisfied there with and that happens to be reason behind, that her husband Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu, her father-in-law Ram Kishun Chaudhary, mother-in-law Maheshwari Devi, Bhaisur Ramu Chaudhary, Debar Mannu Chaudhary, Pannu Chaudhary, Nanad Sarita, Rita began to torture her for fulfilment of demand of dowry in lieu of a motorcycle and a colour T.V. His sister was repeatedly informing him but as his financial condition was not allowing, therefore, he could not be able to fulfilled their demand and in the

5. aforesaid background, on 14.11.2002 they, after brutally assaulting his sister, ousted who is undergoing treatment at Magadh Medical College Hospital. At an earlier occasion also the accused persons had treated his sister in similar way whereupon P.S. was informed. However only Sanha No.519 was registered and the matter was hushed up.

7. The aforesaid application was addressed to Police Inspector who directed the P.S. concerned to register and investigate the case on the basis of which, Magadh Medical P.S. Case No.55 of 2002 was registered and after completing the same charge sheet was submitted against the petitioners which ultimately lent trial resulting conviction of the petitioners, the subject matter of instant revision.

8. Altogether six PWs have been examined on behalf of prosecution out of whom PW-1 is Halandi Devi, PW-2 is Makho Devi, PW-3 is Savita Devi, the victim herself, PW-4 is Mahendra Chaudhary, PW-5, PW-6 are Investigating Officer as well as relevant documents have also been exhibited. The defence had also examined four DWs out of whom DW-1 is Rajesh Kumar Yadav, DW-2 is Deo Narayan Manjhi, DW-3 is Ramchandra Yadav and DW-4 is Moti Yadav.

9. In the background of the admitted status of the parties and as there happens to be grievances at the end of the petitioners that the evidence of DWS have not been appreciated by the successive courts, in the aforesaid background the evidence of the DWs have

6. been gone through. From the evidence of DW-4 para-8, it is evident that he had admitted the fact that Sabita, the victim, had gone to her Sasural from the court itself. DW-3 in para-2 had stated that wife of Shyamji was usually residing at her Sasural “Ghuriya”. Shyamji was residing with his wife separately. DW-2 had stated that all the accused persons are not residing in the same house. They are residing separately. Shyamji also resided at Sahebpur with his wife. DW-1 had also stated that all the accused persons are residing separately. Shyamji used to reside with his wife at Sahebpur. Therefore, from the evidence of DW itself, it is apparent that not only they are inconsistent so far residence is concerned rather they have also admitted that Sabita, had gone from the court and so, the evidence of the prosecution with regard to cruelty and torture meted out to Sabita at an earlier occasion is substantially found supported therewith. The status of the DWs and the evidentiary value of their testimony had elaborately been considered in a case of Ashok Kumar v. State of Haryana reported in (2010) 12 SCC 350.

40. The accused had led defence and examined as many as six witnesses. Dr. Bhushan Aggarwal, In-charge, Swami Salagram Ashram Charitable Hospital, Jind (DW 1) was examined to primarily show that a child was born on 30-8- 1987. Vijay Laxmi (DW 3) and Lekh Raj (DW 4) were examined to show that there were no dowry demands and Harbans Lal, the father of the deceased had not complained to them about the same at any point of time. But, the most important witness examined by the accused was Vijay Laxmi (DW 3), who is the daughter of Harbans Lal, aged about 14 years. She mentioned that the letter (Ext. DJ) was written by her and she stated that sometimes Ashok Kumar, the accused used to take the deceased to her father’s house. She admitted that two days prior to writing of the letter (Ext. DJ), her sister

7. and sister’s son had come to her house and she stated that whatever is written in the letter is correct. But, in her cross- examination, she stated as under: that her husband and “Whenever my sister visited our home after marriage, she would complain in-laws demanded dowry and also they used to give her beating. She came to our home 20 days prior to her death. At that time she told that her in-laws, etc. were demanding a TV and Rs. 5000. My father took her to her husband’s home. My sister was not suffering from my (sic) disease. She was having good health.” 41. The above statement of this witness (DW 3) in cross- examination, in fact, is clinching evidence and the accused can hardly get out of this statement. The defence would be bound by the statement of the witness, who has been produced by the accused, whatever be its worth. In the present case, DW 3 has clearly stated that there was cruelty and harassment inflicted upon the deceased by her husband and in-laws and also that a sum of Rs. 5000 was demanded. The statement of this witness has to be read in conjunction with the statement of PW 1 to PW 3 to establish the case of the prosecution. There are certain variations or improvements in the statements of PWs but all of them are of minor nature. Even if, for the sake of argument, they are taken to be as some contradictions or variations in substance, they are so insignificant and mild that they would in no way be fatal to the case of the prosecution.

10. Now, coming to the prosecution evidence, it is apparent from the testimony of PW-1 and PW-2 that they stood as hearsay witness on the point of cruelty and torture as they came to know as per disclosure made by PW-3, Sabita. However, PW-2 had seen the injury over the person of PW-3, the victim.

11. PW-3 is the victim. During her examination-in-chief she had stated that she began to reside at her Sasural after “Gauna”. All the accused persons were residing in the same house. She had further stated that her husband Shyamji used to beat her. He used to demand Hero Honda Motorcycle as well as a T.V. and frequently coerced her to bring all those items from her Naihar. Other accused persons were

8. also stating like so. During course thereof, they also assaulted and turned her out whereupon a case was instituted and then a compromise was affected at the P.S. whereupon she came aback to her Sasural. Just after staying for ten days she was again subjected to same treatment by the accused persons who after assaulting her ousted from her Sasural. She is residing at her Naihar. In para-11 she had stated that during lifetime of her father neither her husband had advanced any demand nor had maltreated her. In para-14 she had stated that after death of her father there was demand of T.V. and motorcycle. Paras-16, 17, 18 happens to be the contradiction.

12. PW-4 is informant, he had stated that five years after marriage of her sister “Gauna” was affected. During course of stay of his sister at her Sasural the accused persons began to assault her, they used to torture her. They stopped feeding her to facilitate demand of Hero Honda and colour T.V. as a result of which he had lodged complaint before the police. Then, thereafter, there was a compromise and his sister was taken away through court. Again his sister was subjected to same treatment and was left at his place over which he has filed the written report. In para-5 he had stated that during earlier part of stay there was cordial atmosphere at her Sasural. In para-19 he had stated that she was never tortured in his presence. In para-23 he had admitted that his sister used to stay within the jurisdiction of Mufassil P.S. along with her husband.

13. PW-6 is the main Investigating Officer while PW-5 is

9. the part Investigating Officer who had submitted charge sheet. From the evidence of PW-6 para-3 as well as during cross-examination at para-13 coupled with evidence of PW-5 para-1, it is evident that the earlier episode is found fully proved. It is also evident from the evidence of PWs that there happens to be no exaggeration or embellishment or material development visualizing from the evidence of PW-1, 2 and 4. From the evidence of PWs it is evident that no material contradiction in found in her evidence though para-16, 17, 18 contain the same.

14. Thus, after having anxious consideration as well as minute analysis of the evidence on the record, it is apparent that petitioners Ramu Chaudhary, Mannu Chaudhary, Maheshwari Devi, Reeta Devi and Sarita Devi @ Sunita Devi are entitled for acquittal for want of adequate evidence showing their active complicity during commission of torture and cruelty for fulfilment of motorcycle as well as T.V. and the instant petition to that extent is allowed by having the concurrent finding of the successive courts below set aside on that very score. They are under custody, hence directed to be released forthwith if not wanted in any other case.

15. Now coming to status of Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu, it is apparent that witness have categorically stated with regard to the continuing offence of torture and cruelty inflicted against PW-3, the victim. Pw-3, the victim who had asserted the same against him during her evidence is not at all found shattered.

10. During course of statement of accused / petitioner the incriminating part was placed before the petitioner which he completely denied but the said denial has got no place at all after taking into account evidence of DWs itself apart from consistent evidence of prosecution witnesses.

16. In Gurnaib Singh Vs. State of Punjab reported in 2013 Cr.L.J. 3212, the Apex Court has dealt with the rigor of Section 498(A) IPC and explained it under para-17, 18 thereof:

17. Presently we shall dwell upon the other limb of cruelty as engrafted under Section 498A. Section 498A deals with husband or relative of husband of a woman subjecting her to cruelty. The said provision along with the explanation reads as follows:- “498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, “cruelty” means – (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

18. Clause (a) of the Explanation to the aforesaid provision defines “cruelty” to mean “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty. It has come out in evidence that there was ill-treatment by the mother-in-law and the husband. The bride was in her early twenties. She was turned out of matrimonial home on certain occasions. This aspect has been established beyond doubt. There can be no dispute that in a family life, there can be differences, quarrels, misgivings and apprehensions but it is the degree which raises it to the level of mental cruelty. A daughter-in-law is to be treated as a member of the family with warmth and affection

11. and not as a stranger with despicable and ignoble indifference. She should not be treated as a housemaid. No impression should be given that she can be thrown out of her matrimonial home at any time. In the case at hand, considering the evidence of the prosecution witnesses, we are disposed to think that it is a case where the bride was totally insensitively treated and harassed. It is not that she has accidentally consumed the poison. She had deliberately put an end to her life. The defence had tried to prove that she was suffering from depression and because of such depression, she extinguished the candle of her own life. The testimony of the doctors cited by the defence has not been accepted by the learned trial judge as well as by the High Court. They have not been able to bring in adequate material on record that she was suffering from such depression as would force her to commit suicide. On a perusal of the evidence of the said witnesses we find that the finding recorded on that score is absolutely impeccable. In view of the same, the evidence brought on record that she was treated with cruelty to and, and harassed deserves accordingly, we do so.” to be given credence

19. The application of Section 360 of the Cr.P.C. or 3 or 4 of the Probation of Offenders Act in the facts and circumstances of the case did not find applicable. As such, the sentence so recorded by the successive courts is maintained. Hence, the instant petition is found devoid of merit relating to petitioner Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu and is accordingly dismissed. Petitioner Shyamji Chaudhary @ Samoo Chaudhary @ Shyamu is under custody hence is directed to suffer the imprisonment as inflicted by the successive courts. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT Dated the 23rd day of Oct., 2013 PRAKASH NARAYAN/A.F.R.