advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, April 30, 2015

In view of the above report, it is evident that on the date of death of Sushila Devi, her brother in law (Devar) Nand Kumar Sao (appellant No. 2 before us) was aged 15 years 9 months and 26 days, as such, on further considering the law laid down by this Court in Vijay Singh v. State of Delhi[1], Vaneet Kumar Gupta alias Dharminder v. State of Punjab[2] and Upendra Kumar v. State of Bihar[3], we are of the view that the sentence recorded by the courts below against the juvenile accused is liable to be quashed. As to the other appellants, in the facts and circumstances of the case, we do not find any reason to reduce the sentence, awarded against them. Accordingly, the appeal of appellants Indradeo Sao and Raj Kumar Sao is dismissed, but that of Nand Kumar Sao is allowed partly.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.    709  OF 2015
               (Arising out of S.L.P. (Crl.) No. 5796 of 2014)


Indradeo Sao and others                            … Appellants

                                   Versus

State of Bihar                                     …Respondent






                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and  order  dated  28.2.2014,
passed by the High Court of Judicature at Patna in Criminal Appeal (SJ)  No.
419 of 1998 and Criminal Appeal (SJ) No.  437  of  1998,  whereby  both  the
appeals  are  dismissed,  and  conviction  and  sentence  recorded  by   1st
Additional Sessions Judge, Nalanda at Bihar Sharif in  Sessions  Trial  Nos.
192 of 1994/134 of 1996 (PS Case No. 63 of 1994) under  Section  304B,  498A
and 201 of Indian Penal Code (IPC) against the appellants, namely,  Indradeo
Sao, Nand Kumar Sao and Raj Kumar Sao, is affirmed.


It is pertinent to mention here  that  we  issued  notice  in  this  appeal,
through special leave, only on the quantum of sentence, and with  regard  to
plea of juvenility of appellant No. 2 Nand Kumar  Sao  (younger  brother  of
the husband of the deceased).


We have heard learned counsel for the parties  and  perused  the  papers  on
record.




Prosecution story in brief is  that  appellant  No.  3  Raj  Kumar  Sao  got
married to Sushila Devi (deceased) about five years before  her  death.   As
per custom, she departed from her parental house for  her  husband’s  house,
about two years after her marriage.  In the intervening  night  of  3rd  and
4th March, 1994, she died unnatural death.  On 4.3.1994 at about 8.30  p.m.,
her father PW-2 Saudagar Sao gave a report (Fard Bayan) to  the  Officer-in-
charge of Police Station Hilsa, stating that his daughter was  subjected  to
cruelty, in connection with demand of dowry by her husband (Raj Kumar  Sao),
her  father-in-law  (Indradeo  Sao),  mother-in-law  (Rajeshwari  Devi)  and
brother-in-law (Nand Kumar Sao).  It was further alleged  by  the  informant
Saudagar Singh that the accused demanded Rs.10,000/- as dowry  at  the  time
of her ‘Bidayee’, i.e., when Sushila left from her  parental  house  to  her
husband’s family for  the  first  time,  which  he  could  not  fulfill  and
resultantly she was subject to harassment and cruelty  by  her  husband  and
his father, mother and younger brother.  On the basis of  Fard  Bayan  (Ext.
4) crime case No. 63 of 1994 was registered against  all  the  four  accused
relating to offences punishable under Section 304B, 498A and 201  read  with
Section 34 IPC.  Investigation was taken up by PW-6 S.I. Kamla Kant  Pandey.
 On 5.3.1994, the Investigating Officer (PW-6) went  to  the  house  of  the
appellant (accused) in village Nadaha but could not find  the  body  of  the
deceased on that day.  Accused had disappeared from their house.  Next  day,
i.e., 6.3.1994, the dead body could be recovered from a  distance  of  about
half a kilometer from their house, from  a  ditch  of  Dangra  Kandha.   The
tongue of the deceased looked  protruding,  compressed  between  the  teeth.
The dead body was sealed and the inquest report (Ext. 5) was prepared.   The
dead body was sent for post mortem examination.  PW-1,  Dr.  Mathura  Prasad
of Sadar Hospital, Bihar Sharif, conducted autopsy at 4.15 p.m. on the  very
day (i.e. 6.3.1994 when the dead body was  recovered).   After  post  mortem
examination, the Medical Officer  opined  that  the  deceased  has  died  of
strangulation.  However, since he suspected that  poisonous  substance  also
might have been consumed by the deceased, as  such,  he  preserved  viscera.
He has further observed in the post mortem examination  report  that  though
there was no clear ligature mark on the neck, but on dissection trachea  was
found  broken.   The  Investigating   Officer,   after   interrogating   the
witnesses, and arrest of the accused, and on  completion  of  investigation,
submitted charge sheet against all the four accused for their trial.


The case was committed to  the  Court  of  Sessions,  on  4.5.1994,  by  the
Judicial Magistrate, Hilsa.  After hearing  the  parties,  the  trial  court
framed  charge  against  all  the  four  accused  in  respect  of   offences
punishable under Sections 304B, 498A and 201 IPC to which they  pleaded  not
guilty and claimed to be tried.




On this, prosecution got examined PW-1 Dr.  Mathura  Prasad  (who  conducted
post  mortem  examination),  PW-2  Saudagar  Sao  (informant/father  of  the
deceased), PW-3 Mahendra Sao (husband of sister of the deceased),  PW-4  Ram
Udit Prasad (brother of the deceased), PW-5 Rajkumari Devi  (mother  of  the
deceased), PW-6 S.I. Kamla Kant Pandey (who investigated the crime) and  PW-
7 Surendra Prasad Singh (Officer-in-charge of Police Station, Hilsa).   Oral
and documentary evidence was put to the accused under  Section  313  of  the
Code of Criminal Procedure, 1973, in response  to  which  they  stated  that
Sushila died of diarrhea, whereafter  DW-1  Baliram  Prasad  and  DW-2  Shiv
Kumar, both neighbours of the  accused,  were  examined  on  behalf  of  the
defence.


The trial court, after  hearing  the  parties,  found  that  the  charge  of
offences punishable under Sections 304B, 498A and 201 IPC  stood  proved  as
against  all  the  four  accused,  namely,  Indradeo  Sao   (father-in-law),
Rajeshwari Devi (mother-in-law), Raj Kumar Sao (husband) and Nand Kumar  Sao
(brother-in-law), and  convicted  them  accordingly  on  28.11.1998.   After
hearing on sentence on 30.11.1998, each of  the  convict  was  sentenced  to
rigorous imprisonment for a period of ten  years  under  Section  304B  IPC,
rigorous imprisonment for a period of three years under  Section  498A  IPC,
and rigorous imprisonment for a period of two years under Section  201  IPC.
All the sentences were directed to run concurrently.




Aggrieved by said judgment and order dated 28.11.1998/ 30.11.1998 passed  by
the 1st Additional Sessions Judge, Nalanda  at  Bihar  Sharif,  in  Sessions
Trial Nos. 192 of 1994/ 134 of 1996, Criminal Appeal (SJ) No.  419  of  1998
was filed by Indradeo Sao, Rajeshwari Devi and Nand Kumar  Sao.   Raj  Kumar
Sao (husband of the deceased) filed separate Criminal Appeal  (SJ)  No.  437
of 1998.  Both  the  appeals  were  heard  together  and  disposed  of  vide
impugned order challenged before us by Indradeo Sao, Nand Kumar Sao and  Raj
Kumar Sao.  (Convict Rajeshwari Devi is reported to  have  died  during  the
pendency of the appeal before the High Court, and her appeal stood abated.)




We  have  already  mentioned  above,  that  the  impugned  order  is   under
examination in this appeal only on the quantum of  sentence,  and  regarding
plea of juvenility qua appellant No. 2.




Considering the plea of juvenility of appellant No. 2  Nand  Kumar  Sao,  on
the basis of documents before us, on 23.2.2015,  we  directed  the  Sessions
Judge, Nalanda, Bihar, to conduct an enquiry with regard to  the  juvenility
of appellant No. 2 Nand Kumar Sao and to send the report to  this  Court  by
13.4.2015.




In response  to  communication  made  by  the  Registry  of  this  Court  in
compliance with our order, report dated  31.3.2015  of  Additional  District
and Sessions Judge-I, Bihar Sharif, Nalanda, after enquiry, is  received  by
this Court.  Relevant part of the report is reproduced as under: -
“     …………….

      I have taken up  the  matter  afresh  and  perused  all  the  original
documents related with age of petitioner no. 2, Nand Kumar Sao @ Nand  Kumar
Chand filed by the parties on affidavit before me and from bare  perusal  of
the original matriculation certificates, admit  card,  registration  receipt
and character certificate.  I find that every where the  date  of  birth  of
Nand Kumar Sao @ Nand Kumar Chand which is said to be petitioner no. 2,  the
date of birth is recorded as 08.05.1978.  Though the certificate  stands  in
the name of Nand Kumar  Chand  S/o  Indradeo  Prasad,  who  has  claimed  on
affidavit that Nand Kumar Chand S/o Indradeo Prasad  also  bears  the  alias
name Nand Kumar Sao (petitioner no. 2) and the father Indradeo  Sao  had  no
other son  named  as  Nand  Kumar  Chand.   This  fact  has  also  not  been
controverted in any way before this enquiry or  before  the  matter  earlier
required by the court of ACJM, Hilsa, Nalanda on 07.12.1995.

      Now coming on the point to test the juvenility of the  petitioner  no.
2 Nand Kumar Sao, who also bears the alias name Nand Kumar Chand and on  the
strict proof of the age as recorded on all the original  certificates  filed
by the petitioner no. 2 including original matriculation  certificates  duly
issued  from  the  office  of  the  Bihar  School  Examination  Board-Patna,
recorded the date of birth of the petitioner as 08.05.1978 and I  find  that
this date of birth of the petitioner no. 2  is  also  duly  entered  in  the
admit card and registration certificate in the office of  the  Bihar  School
Examination Board, which was issued from the B.S.E.B. office earlier to  the
date of occurrence.  I have also  gone  through  the  established  procedure
followed in determination of age of any juvenile mentioned in  the  rule  of
the juvenile justice care and protection of children in clause-3 as under-

“     in  every  case  concerning  a  child  or  juvenile  in  conflict  age
determination inquiry shall be conducted by the court or the  Board  as  the
case may be the committee by seeking evidence by obtaining –

i. The matriculation or equivalent certificate available and in the  absence
whereof;

ii.   The date of birth certificate from  the  school  (other  than  a  play
school) first attended and in the absence thereof;

iii.  The birth certificate given by a corporation or a municipal  authority
or a panchayat.

And only in the absence of either (i) (ii) or (iii) of clause (a) above  the
medical opinion will be sought from a duly constructed medical board,  which
will declare the age of the juvenile or child.”..

      Thus on the touch stone of the aforesaid  principle  in  determination
of age, I find and hold that the petitioner no. 2  Nand  Kumar  Sao  @  Nand
Kumar Chand, S/o Indradeo Sao was juvenile and was much  below  the  age  of
sixteen year (i.e. 15 years 09 months 26 days) at  the  time  of  occurrence
FIR dated 04.03.1994, Hilsa P.S. case no. 63/94 corresponding to  S.Tr.  No.
192/94.

      Thus in obedience of the Hon’ble Apex Court directions,  I  am  herein
submitting my report before  your  honour  to  place  the  same  before  the
Hon’ble Bench as desired.”


In view of the above report, it is evident that on  the  date  of  death  of
Sushila Devi, her brother in law (Devar) Nand Kumar  Sao  (appellant  No.  2
before us) was aged 15 years 9 months and  26  days,  as  such,  on  further
considering the law laid down by this Court  in  Vijay  Singh  v.  State  of
Delhi[1], Vaneet Kumar Gupta alias Dharminder  v.  State  of  Punjab[2]  and
Upendra Kumar v. State of Bihar[3], we are of the  view  that  the  sentence
recorded by the courts below against the juvenile accused is  liable  to  be
quashed.  As to the other appellants, in the facts and circumstances of  the
case, we do not find any reason to  reduce  the  sentence,  awarded  against
them.


Accordingly, the appeal of appellants Indradeo Sao  and  Raj  Kumar  Sao  is
dismissed, but that of Nand Kumar Sao is  allowed  partly.   We  affirm  the
conviction recorded against him but considering that he was juvenile on  the
date of incident, sentence of imprisonment is quashed.  Appellant No.2  Nand
Kumar Sao shall be set at liberty, if not required in  connection  with  any
other crime.

                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
New Delhi;                        [Prafulla C. Pant]
April 28, 2015.

-----------------------
[1]    (2012) 8 SCC 763
[2]    (2009) 17 SCC 587
[3]    (2005) 3 SCC 592


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.