Criminal Appeal (SJ) No. 732 of 2007 ------ Against the judgment and order of conviction and sentence dated 31.7.2007 and 2.8.2007 passed by Shri Sudarshan Kumar Ray, Additional Sessions Judge-cum-Fast Track Court I, Nawada in S.T. No. 51 of 2004 / 23 of 2005. -------- Karyanand Singh, son of Suresh Prasad Sharma, resident of village – Garo Bigha, Police station – Narhat, District – Nawadah ………………… Appellant Versus The State of Bihar …………. Respondent ---------- For the Appellant : Sarvshri Ramakant Sharma, Sr. Advocate Rajesh Kumar, Santosh Kumar Pandey & Narendra Singh, Advocates. For the State : Shri S.N. Prasad, A.P.P. ----------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The solitary appellant was indicted of committing offences under sections 304B, 498A and 494 IPC by the learned Presiding Officer, Fast Track Court I, Nawada after being put on trial in Sessions Trial No. 51 of 2004/ 23 of 2005. By judgment dated 31.7.2007, the appellant was held guilty of committing the above offences and by order of sentence passed on 2.8.2007, the appellant was directed to suffer RI for ten years under section 304B IPC. The learned trial judge did not pass any substantive sentence under section 498A IPC and acquitted the appellant of the charge under section 494 IPC. 2 2. It appears that the dead body of Widu Kumari, daughter of P.W. 11 Karyanand Singh, was found on the railway track in between Tilaiya and Nawada railway stations. The matter came into the knowledge of the rail police and, accordingly, an U D Case was registered vide Nawada GRPS UD Case no. 9 of 2002 and the inquest was held on the dead body. The dead body was sent for holding postmortem examination and it appears held by Dr. Akhilesh Kumar Prasad, who was examined during the trial as P.W. 10. He was of the opinion that the injuries which were appearing on the dead body definitely indicated that the deceased had been run over by a train and, as such, it was a death caused by accident. The UD case was winded up as may appear from the report (Ext.C). 3. All on a sudden, P.W. 11 Karyanand Singh was filing a complaint petition (Ext. 1) before the Chief Judicial Magistrate, Nawada alleging therein that the appellant and his family members were not taking the bride (deceased), married to the present appellant in the month of Baishakh, 1998, to their house as they were demanding rupees one lac and a motorcycle as additional dowry in consideration of the marriage. In the meantime, the wife of the brother of the appellant, named Arvind Singh, fell ill and the doctor advised for the surgery to the lady and, as such, the deceased Widu Kumari was taken by the appellant to his house in Falgun, 2001, where she was residing peacefully. However, after some days, the appellant and other accused persons started demanding rupees one lac and a motorcycle and also started ill treating and torturing Widu Kumari so much so that even 3 meals were not provided to her and she was beaten up and closed in a room. On account of not getting demanded dowry from the complainant, it is alleged, the marriage of the present appellant was performed with another lady named Sanju Devi after realizing huge dowry from her father and when the complainant came to know about the marriage of the appellant, he along with some villagers went to the house of the appellant and wanted to know the reason for such inappropriate action by the family members of the appellant, who stated that it was a matter to be forgotten as the same had already occurred and assured that the deceased would not be ill treated or neglected. 4. The complainant stated that he used to be anxious and worried about the future of his daughter as not only the appellant had married another lady, but his family members also were not behaving well with the lady and were torturing her in various ways so much so that even the plates with meals could be snatched from her and she would be cursed as to why she did not commit suicide. The complainant stated that his daughter still continued in the relationship with perseverance even when she was kept hungry and badly treated. All on a sudden, on 24.8.2003, he learnt from one Aniruddh Singh (not examined), who was also residing in the same village in which the appellant also lived and who was earlier the resident of the complainant’s village, came to inform that his daughter was not being seen in the village. 5. The complainant sent his son Santosh (P.W. 3) in the house of the appellant who came back in the evening to inform him that the 4 family members of the deceased had informed him that the deceased had left the house of the appellant and run away from there and, further, that P.W. 3 gathered from the villagers that after having ill treated her they had, lastly, killed her and caused the disappearance of her dead body. 6. The complainant stated that he kept the search for his daughter but could not succeed and, lastly, he learnt on 26.8.2002 that a dead body was found under the over bridge of Nawada-by-pass-road and that was brought by the police to the police station. P.W. 11 went to the police station where he was told by an officer that indeed a dead body had been lying under the over bridge but, there was no claimant, as such, the same was cremated at the state expense. However, the complainant was shown the picture of the dead body and he found that it was that of his daughter and was confirmed in his opinion that after committing the murder of Widu Kumari, the accused persons disposed of her dead body by throwing it under the over bridge located on Nawada-by-pass road. 7. After filing the complaint petition (Ext. 1), a prayer was made by the complainant for sending the same to police for investigation under section 156(3) Cr.P.C. Accordingly, the complaint petition was sent to Narhat Police station, which registered Narhat P.S. Case no. 81 of 2002. After investigation, the police sent up the present appellant for trial while kept the investigation pending as against other accused persons, who had been named as accused in complaint petition. 5 8. The case of the solitary accused, i.e., the appellant was committed to the court of Sessions. Accordingly, after trial the appellant was convicted and sentenced as pointed out in the very first paragraph of the present judgment. 9. The defence of the appellant was that Widu Kumari was suffering from psychiatric depression and she was treated by Dr. Umesh Narayan Choudhary (D.W.1), the retired Medical Officer, Ranchi Mental Hospital, Kanke, Ranchi and on account of the treatment being erratic and not regular, the lady slipped out of the house of the appellant and while she was roaming around, she happened to be run over by a train and killed. 10. For proving charges, the prosecution examined as many as fifteen witnesses out of whom P.Ws. 14 and 15 were chowkidars of Narhat police station and they did not appear stating any material fact. In fact, P.W. 14 was even denying his signature on a particular document and was completely hostile to the prosecution. So far as other witnesses are concerned, P.W. 1 Ram Nandan Singh, P.W. 2 Suresh Prasad, P.W. 4 Ravindra Prasad Singh, P.W. 7 Radhe Shyam Singh, P.W. 8 Ram Charittar Singh were all co-villagers of the informant P.W. 11 and were stating that Widu Kumari was not being treated well by the appellant and his family members on account of not having got sufficient dowry, specially, an amount of rupees one lac and a motorcycle and at the request of P.W. 11 they went to his house for persuading the appellant and his family members not to ill treat her and to properly respect her and look after her. Some of them also stated that 6 she was killed and her dead body was cremated on account of not getting the desired dowry and further that she was badly treated with cruelty. P.W. 3 Santosh Kumar is the brother of the deceased whereas P.W. 5 Sweety Kumari is the youngest of the three daughters of P.W. 11. P.W. 9 Lalo Gangman was the gangman in the railway and had seen the dead body by the side of the railways and had reported the matter, upon which the railway police came and held inquest upon it and sent it for postmortem examination, which was held by P.W.10/12 Dr. Akhilesh Kumar Prasad, the then Medical Officer, Sadar Hospital, Nawada vide Ext. 1. P.W. 11 is the complainant himself whereas P.W. 6 Suniti Devi is the wife of P.W. 11 and mother of the deceased. 11. Thus, the main evidence, which appears material for discussion as also to prove the charges, are those of P.Ws 3, 5, 6 and P.W. 11, the complainant/informant of the case. I was taken through the evidence of P.W. 11 and other witnesses, like, P.Ws. 3, 5 and 6 who are the brother, sister or mother of the deceased besides being taken through the evidence of P.W. 11. The witnesses have stated that there was a demand of rupees one lac and a motorcycle and for that the Bidagri was not performed by the appellant. But, the wife of the elder brother of the appellant, namely, Arvind Singh fell ill who was advised to be operated upon by a surgeon, which required the assistance of the deceased and, as such, she was taken to their house by the appellant and others. They have also stated that they used to get news from the house of the appellant that the deceased Widu Kumari was ill treated and tortured to such an extent that not only she was assaulted by the appellant and 7 others but was not even provided minimal necessities, like, food and shelter and the degree of her torture was such that plates full of meals used to be snatched from her and she used to be cursed to die and also was confined in a room by separately being closed inside it. 12. While considering the above evidence, there is no source disclosed as to who had informed the parents of the deceased and other persons, like, P.Ws 3, 5 or 6 about the acts of torture. As such, there is absence of further details as regards the period or approximate date or time on which the deceased had been mentally or physically tortured. In addition to this, what appears admitted in the evidence of P.Ws 3, 5, 6 and 11 was that the deceased was taken away by the accused persons themselves even without finalizing a date, as is customary for taking a bride to her matrimonial home for the first time on account of the wife of the elder brother of the appellant was advised to undergo a surgery. The deceased was required for rendering some assistance to the ailing wife of the elder brother of the appellant. Thus, what appears to me as the fundamental flaw in the prosecution evidence is that if at all the appellant or his family members were adamant on not taking the lady to her matrimonial home unless the accused persons had received the demanded dowry articles appears why should do it specially, if that had been the precondition or if for that reason the accused persons had taken such a difficult position, then they would not have either diluted their stand or changed their position. 13. While I was considering the evidence of P.W. 11, the father of the deceased ad the informant/complainant of the case, from 8 paragraph 16 onwards, what came out of those paragraphs was that there was no discussion of any sort, probably, in relation to the demand of dowry in between the appellant and P.W. 11. In fact, the appellant was never inclined to discuss anything with P.W. 11. It further appears from paragraph 21 of the evidence of P.W. 11 that whatever the informant had given as presents at the time of the marriage it was on account of his free will and desire and there was no harassment meted out to the informant by the accused persons at the time the marriage had been solemnized. In paragraph 22 of the evidence, P.W. 11 he has stated that right from marriage till Dwiragaman, which, in my opinion, was the occasion prior to that when the deceased was taken to the house of the appellant on the pretext of helping out the wife of the elder brother of the appellant who was to go under surgeon’s knife, there was no dispute, ill will or acrimony between P.W. 11 and the father of the appellant for anything to be given or demanded to be given. 14. On consideration of the evidence of P.W. 11 from paragraph 28 onwards, what appears further is that it was the most informal performance of ceremonies under which the deceased had gone to her husband’s house. As is customary at such occasions, the father of the groom sends proposal by suggesting a date on which the bride had to leave her parents’ house for going to her husband’s house, that formality was also not gone through and the accused persons took away the lady deceased without observing that custom also. It does not appear that it had happened on account of any acrimonious situation or due to some ill will or on account of some unpleasant situation which 9 had been created due to the demand of dowry and non fulfillment of the demand. In fact, both the families appear rejoicing the informal departure and arrival of the bride from or into the houses of the two sides. This appears glaringly coming out from the evidence of P.W. 11 right from paragraph 29 to 33. It has been stated by P.W. 11 that at the time of departure of the lady from his house every one was rejoicing and further that it was a second occasion that this appellant had arrived at his house and the earlier occasion was at the time of marriage of his son. But on those two occasions also, the informant himself admits that whatever was given to the appellant was as per his own free will. The appellant appears a man of substantial resources so much so that P.W. 11 admitted that appellant had purchased a Tata 407 vehicle and that he had landed properties and further that the father of the appellant had purchased a tractor at the time of marriage of his daughter. 15. What appears from the evidence of witnesses, to me, is that there might have been a story told by P.W. 11 in his petition of complaint that the accused persons were demanding rupees one lac and a motorcycle and put the meeting of the demand as a precondition for taking the bribe but the evidence of P.W. 11 in cross-examination in paragraphs, which I have just referred to, indicates as if those allegations were not borne out from his own statement and it appears that the accused persons were most informal in maintaining the relationship so much so that they were not even sending a date for taking the bride to their house and the very evidence of P.W. 11 indicates that they were never expecting to get anything from him. If 10 this could be the evidence of as important a witness as P.W. 11 and his wife P.W. 6, who also speaks almost on the same line as has been spoken by P.W. 11, then I have quite some difficulty in upholding the findings recorded by the learned trial judge that the appellant was harassing the lady for or in connection with any demand for dowry. 16. So far as the allegation of harassing the lady or treating her with cruelty for or in connection with some dowry is concerned, I have already pointed out in the earlier part of the judgment that except the bald statement that the lady was being ill treated and harassed so much so that she was not even being provided meals or was being confined in a room, there does not appear any reliable source for placing the statement on a judicial record. None of the witnesses has stated anywhere in the deposition that it was the deceased who had told any of them about her plight. The witnesses have not stated that they had been told by any particular person that Widu Kumari was being harassed or ill treated in the manner as has been alleged. The source of disappearance of the lady or her not being seen in the village or in her house was through Aniruddh Singh, who was earlier a co-villager of the informant P.W. 11 and who, as per his story, had settled in the village of the present appellant, was not even produced and examined so as to telling any fact in support of any of the allegations. Thus, the allegations remained uncorroborated. 17. I have already pointed out that the dead body was found in between the railway tracks and a UD case was registered by Ext. C and after investigation of the same, the rail police came to the conclusion 11 that after having strayed away, the lady was run over by a train as the opinion of P.W. 12 Dr. Akhilesh Kumar Prasad who had held postmortem examination, was very definite as appears from paragraph 15 of his evidence, that the injuries which were recorded by him on the dead body during postmortem examination could never have been caused by any other mode than an accident by a train. 18. Thus, on the basis of the materials which are available on the trial court record, I find that the order of conviction and sentence passed upon the appellant were not justified. In fact, the appellant deserves to be acquitted as the prosecution has failed to establish the charges to the hilt. In the result, the appeal is allowed. Appellant Karyanand Singh is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 30th August, 2011, NAFR/Anil/