Jharkhand High Court
Hema Gope vs The State Of Bihar on 16 October, 2023
Cr. Appeal (DB) No. 53 of 1999 (R)
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Against the judgment of conviction and order of sentence dated 09.02.1999 passed by
Shri Surya Kant Mishra, learned Sessions Judge, Hazaribag in Sessions Trial No. 125
of 1994
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1. Hema Gope
2. Bhuneshwari Devi --- --- --- Appellant
Versus
The State of Bihar --- --- --- Respondent
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For the Appellant: Mr. Naveen Kumar Jaiswal, Amicus Curiae
For the Resp.-State:Mr. Shailesh Kr. Sinha, A.P.P
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PRESENT
Hon'ble Mr. Justice Ratnaker Bhengra
Hon'ble Mr. Justice Ambuj Nath
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By Court: This appeal is directed against the judgment of conviction and order of sentence
dated 09.02.1999, passed by Shri Surya Kant Mishra, Sessions Judge, Hazaribag in
Sessions Trial No. 125 of 1994, arising out of Keredari P.S. Case No. 55(6) of 1990
corresponding to G.R. No. 1061 of 1990, holding the appellants guilty for the offences
under sections 304B/34 I.P.C, section 201/34 I.P.C and section 498/34 I.P.C and
thereby sentencing them to undergo R.I for life for the offences under section 304B/34
I.P.C and R.I for three years each for the offences under section 201/34 and 498 I.P.C.
All the sentences were ordered to run concurrently.
2. Prosecution case was instituted on the basis of the written report of the
Informant, alleging therein that his daughter Salo Devi was married to the appellant
no. 1-Hema Gope in June 1988. After her Gauna, Salo Devi went to her matrimonial
home. During the Gauna ceremony, appellant no. 1-Hema Gope demanded Rs. 1,000/-
and a motorcycle. The Informant expressed his inability to fulfill the demand of the
appellant Hema Gope, on which, he had become agitated. It is further stated that Salo
Devi had written two letters to the Informant, stating that the appellants were torturing
her to enforce the demand of dowry. It is further alleged that on 14.06.1990, he
received information that his daughter had died due to dysentery on 12.06.1990. He
has further alleged that the accused persons without informing him, had performed the
last rites of his daughter.
3. After cognizance, C.J.M., Hazaribag committed the case to the court of
sessions on 30.03.1994 as it was exclusively triable by the session's court. Charge was
framed against the appellants on 06.03.1995 under section 304B/34 and 201/34 I.P.C,
as the appellants did not plead guilty and claimed to be tried.
4. In order to prove its case, prosecution has adduced both oral and documentary
evidence.
Charo Devi (P.W-1) has supported the prosecution case.
Tetri Devi (P.W-2) is the mother of the deceased Salo Devi. She has supported
the prosecution case.
Ganesh Sao (P.W-3). He has supported the prosecution case.
Ashok Kumar (P.W-4) is a formal witness who has proved the fardbeyan which
was marked Ext.1.
Punit Gope (P.W-5) is the Informant of this case. He has proved two letters
written by the deceased Salo Devi which were marked Ext.-2 series with objection.
He has supported the prosecution case.
5. Statement of the appellant was recorded under section 313 Cr. P.C. Defence is
general denial of the occurrence and false implication.
6. On the basis of the evidence, both oral and documentary, available on the
record, learned Sessions Judge, Hazaribag held the appellants guilty for the aforesaid
offences and sentenced them accordingly.
7. Mr. Naveen Kumar Jaiswal, learned Amicus Curiae, appearing on behalf of the
appellants, submitted that the prosecution has not been able to prove that the deceased
Salo Devi had died unnatural death. He further submitted that non-examination of the
Investigating Officer has proved fatal to the case of the prosecution. On this ground, it
was prayed that this appeal be allowed and the appellants be acquitted of the charges.
8. Mr. Shailesh Kumar Sinha, learned A.P.P, submitted that all the prosecution
witnesses have supported the prosecution case that the appellants have demanded
dowry and to enforce the demand, deceased was tortured and ultimately, she died
unnatural death.
9. From perusal of the oral testimony of the prosecution witnesses, it appears that
Punit Gope (P.W-5), who is the Informant of this case, has stated that his daughter
Salo Devi was married to the appellant no. 1-Hema Gope in 1988. He has further
stated that after the marriage, his daughter went to her matrimonial home. On the
occasion of Holi, Hema Gope came to their house and demanded Rs. 1,000/- from his
wife so that he could appear in the board examination. His wife expressed her
inability to give him Rs. 1,000/-. He has further stated that four days prior to the death
of his daughter, he received two letters by post. He has proved these letters which
were marked Ext.2 series with objection. He has stated that the appellants were
demanding Rs. 25,000/- for buying a motorcycle. He has further stated that the
appellants were threatening to poison his daughter. He has further stated that he was
informed by his cousin Kedar Gope that the appellants have murdered his daughter.
Thereafter, he instituted the present case. He has proved his signature and that of the
witness Madhav Singh which are Ext.-3 series. He has identified the appellants in the
dock.
In his cross-examination, he has stated that his son-in-law had not demanded
any money from him at the time of Holi.
10. Charo Devi (P.W-1) had stated that the deceased Salo Devi was married to the
appellant no. 1-Hema Gope. He has stated that at the time of Gauna, the appellant
Hema Gope had demand Rs. 1,000/- and a motorcycle from his mother-in-law. When
his mother-in-law expressed her inability to fulfill his demand, he had threatened her
of dire consequences. She has claimed to have identified the appellants in the dock.
In her cross-examination, she has stated that she cannot state the date on which
marriage between the appellant no. 1- Hema Gope and the deceased Salo Devi was
solemnized. She has further stated that when the appellant no. 1 was demanding
money and a motorcycle from his mother-in-law, she was present there.
11. Tetri Devi (P.W-3) is the mother-in-law of the deceased. She has stated that her
daughter was married to the appellant no. 1 Hema Gope in the year 1988. At the time
of Gauna, appellants had demanded Rs. 1,000/- from her for filling up a form so that
he could appear in the Board Examination. He has also demanded a motorcycle.
However, she expressed her inability to fulfill the demand, on which the appellant
Hema Gope had threatened her of dire consequences. Later on, Dipu Gope and Latan
Gope informed her that Salo Devi died due to dysentery. She has stated that her
daughter had written two letters to her husband at Sudamdih. She has further stated
that the accused persons had cremated her daughter without informing them. She has
claimed to have identified the appellants in the dock.
In her cross-examination, she has stated that Latan Gope and Dipu Gope had
told him that her daughter was poisoned.
12. From perusal of the letters purportedly written by the deceased to her father, it
appears that one was inland letter and the other letter was an unstamped letter. Both
these letters have been adduced in evidence with objection. Contents of the letters
reveal that the appellants were demanding Rs. 500/- and a motorcycle, and she was
tortured.
13. From perusal of the oral testimony of Ganesh Sao (P.W-3), it transpires that
this witness has stated that he had provided timber for cremation of the deceased. To
the court question, he had stated that 30-35 persons had participated in the cremation
ceremony. He cannot say whether the Informant and his family members were present
during the cremation or not.
14. Now, it has to be ascertained, whether the prosecution has been able to prove
its case against the appellants beyond all reasonable doubt. In order to come to the
aforesaid finding, it has to be further ascertained;
(a) Whether the deceased Salo Devi had died homicidal / unnatural death, and
(b) Whether appellants had a hand in the homicidal death of the deceased.
(c) Whether the deceased committed suicide due to the torture meted by the
appellants.
15. It is the case of the prosecution that the deceased Salo Devi died within seven
years of her marriage. It is further case of the prosecution that the appellants were
demanding dowry and to enforce the demand, she was tortured and ultimately, she
was murdered.
16. The Informant and other witnesses have stated that the deceased had died due
to poisoning. They have further stated that the appellants had cremated the deceased
without informing them, due to which, postmortem of the deceased could not be
performed.
The Informant Punit Gope in his deposition as P.W-5, had not stated anything
regarding the fact that the deceased was cremated without informing him. Tetri Devi
(P.W-2), mother of the deceased, had stated that the accused persons had cremated the
deceased without informing them. Prosecution has not examined the Investigating
Officer. His non examination does not shed any light on the point, whether the
Informant and his family members had participated in the cremation of the deceased
or not? Or whether Tetri Devi (P.W-2) has stated in her statement U/S 161 Cr.P.C the
appellants had cremated her daughter without informing them. Ganesh Sao (P.W-3) to
the court question, had stated that 30-35 persons had attended the cremation of the
deceased, but he cannot say whether the Informant and his family members were
present in the cremation or not. Non-examination of the I.O has caused serious
prejudice to the case of the prosecution. Had the prosecution been able to show that
the deceased was cremated without informing the Informant and his family members
by cogent evidence, adverse inference could have been drawn against the appellants?
However, from the materials available on the record, it cannot be ascertained whether
the deceased Salo Devi had died homicidal death or for that matter, unnatural death.
17. As far as the factum of demand of dowry is concerned, there is contradiction in
the averment made in the fardbeyan and that of the witnesses. In the fardbeyan, it has
been stated that at the time of Gauna, the appellant Hema Gope had demanded one
thousand rupees and a motorcycle from his mother-in-law. Punit Gope (P.W-5) has
stated that the demand was made by the appellant Hema Gope, when he had come to
his house on the occasion of Holi. The purported letters written by the deceased have
been marked Exhibit with objection. Prosecution has not been able to show by any
cogent evidence that these letters were in fact written by the deceased Salo Devi.
18. From the aforesaid facts and circumstances, it is apparent that the prosecution
has not been able to show that the deceased Salo Devi died homicidal death or for that
matter, unnatural death. Accordingly, we come to the finding that the learned Sessions
Judge, Hazaribag has wrongly held the appellants guilty for the offences under section
304B, 201 and 498/34 I.P.C.
19. Accordingly, this appeal is allowed. Judgment of conviction and order of
sentence passed by the learned Sessions Judge, Hazaribag is set aside.
Appellants are on bail. They along with their bailors are discharged from the
liability towards the bail bonds. Pending I.A., if any, stands disposed of.
20. Before parting, we would like to record our appreciation for Mr. Naveen
Kumar Jaiswal, learned Amicus Curiae who has very ably assisted this court during
hearing of this appeal. The Member Secretary, JHALSA is directed to pay Rs. 7,000/-
to Mr. Naveen Kumar Jaiswal, by way of remuneration, for his services rendered as
an Amicus Curiae in this case.
(Ratnaker Bhengra, J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated 16th October 2023
Ranjeet/
