CRIMINAL APPEAL (SJ) NO.368 OF 2006 Against the judgment of conviction and order of sentence dated 05.04.2006 passed by Additional Sessions Judge, Fast Track Court No.IV, Nawada in Sessions Trial No.147 of 1997/240 of 2004 arising out of Roh P.S.Case No.29 of 1994, G.R.Case No.877 of 1994 1. ANCHHU BHAGAT @ ANSHU BHAGAT, 2. BALESHWAR @ MUSAFIR YADAV 3. BALA YADAV @ BIRENDRA YADAV, 4. USHA DEVI, 5. GAURI DEVI & 6. KAMESHWAR YADAV @ RAMESHWAR YADAV ------------ Appellants VERSUS State Of Bihar----------Respondent ----- For the Appellants:- Sri Rajib Ranjan Jha, Advocate For the Respondent:- Sri Parmeshwar Mehta, A.P.P. ----- P R E S E N T THE HON’BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal has been filed by the appellants to assail the judgment of conviction dated 5.4.2006 passed by the learned Presiding Officer of Fast Track Court NO.IV, Nawada in Sessions Trial No.147 of 2007/240 of 2004 by which all the appellants were found guilty of committing offences under Sections 304B and 201 IPC but when it came to inflicting sentences upon each of the appellants, appellant Anchhu Bhagat @ Anshu 2 Bhagat was directed to suffer rigorous imprisonment for ten years under Section 304B IPC and also rigorous imprisonment for two years under Section 201 IPC. The remaining five appellants were directed to suffer rigorous imprisonment for seven years and one and half years respectively for their individual conviction under Sections 304B and 201 IPC. The sentences inflicted upon the appellants were directed to run concurrently. 2. Ext-1, the written report of P.W.3 Mathura Prasad, the brother of the deceased Pramila Devi and son of P.W.2 Sri Yadav, is the basis of the FIR in which it was alleged that after being married to appellant Anchhu Bhagat @ Anshu Bhagat the lady was residing in his house where she was asked to bring a motorcycle from her parents, failing which she was threatened to be killed. Six months prior to the occurrence, appellant Anchhu Bhagat @ Anshu Bhagat and his father Kameshwar Yadav @ Rameshwar Yadav(P.W.6) had allegedly thrown out the lady from her matrimonial house after assaulting her and had also administered poison to her, but she was saved after treatment and the matter was compromised on 3 account of the intervention of the well- wishers of the persons. 3. However, on 6.7.1994 the appellants again administered poison to the deceased Pramila Devi and killed her and cremated her dead body which incident came into the knowledge of the informant P.W.3 on 7.7.1994 as a result of which he went to the house of the appellants for gathering full information and he found that the appellants were not present at their house and as such filed the written report Ext-2. 4. On the basis of Ext-2, the FIR of the case was drawn up and the same was invested into. The investigating officer was not produced as such there is absolute lack of evidence as to what were the objective findings of the police. But finding material sufficient, the police sent up the six appellants for their trial and this is show they were tried and convicted as indicated at the very outset. 5. The defence of the appellants was that their implication was false and the deceased had died due to diarrhoea. 6. In support of the charges four 4 witnesses were examined. P.Ws.1, 2 and 3 supported the story contained in the written report (Ext-2), but none of them had seen any part of the occurrence, even the cremation of the dead body. P.W.4 Krishna Deo Prasad was a formal witness who exhibited the writings and signatures of the investigating officer which was of the case diary and, as such, the case diary has been marked Ext-2. 7. P.W.3 has stated that when the lady went to the matrimonial house she was asked to bring a motorcycle from her parents’ house, else she would be killed. It was stated that she was assaulted by all family members including her Gotani and once she was also administered poison but she could be saved by treatment. P.W.3 stated that he learnt about the killing of the deceased through Umesh Prasad(P.W.1) and, accordingly, he along with his father P.W.2 went to the house of the appellants, but could not find any one and after making enquiries, he learnt that his sister had been killed by poisoning whereafter he went to the police station to lodge the report. 8. P.W.1 Umesh Prasad has also 5 supported the above facts but has not stated that he had ever informed either P.W.3 or his father P.W.2, that the deceased Pramila Devi had been killed by poisoning by the appellants. Thus, the evidence of P.W.3 which is also the evidence of P.W.2, when he stated before the court that he had also learnt about the incident from P.W.1, appears not admissible on account of P.W.1 not coming to support by stating in court that he had informed both P.Ws.2 and 3 about the killing of Pramila Devi by the appellants. 9. In addition to the above what I further find is that P.Ws.2 and 3, i.e., the father and son stated that after reaching the house of the appellants they found no one there and they came to know from the villagers that Pramila Devi had been murdered. Who was the person who had passed on that particular information both to P.Ws.2 and 3 had not been named by either of the two witnesses. At the same time, the prosecution did not produce any one who could depose that he had informed any of the witnesses that Pramila Devi had been murdered. In addition to that from the reading of the evidence of P.W.2 in paragraph-6 what 6 transpires is that after having reached at the house of the appellants he found appellant Anchhu Bhagat @ Anshu Bhagat present there and P.W.2 Sri Yadav was not offered to be seated and as such he inferred that other inmates of the house were not present. Similarly, when it comes to the evidence of P.W.1 what appears is that he stated that he had accompanied P.Ws.2 and 3 to the village of the appellants and also went to their house and from there all of them went to the cremation ground, but by that time the deceased had been cremated. 2-3 ladies who were around the place of occurrence stated to P.W.2 that the deceased had been murdered by poisoning. The same criticism was made by the learned counsel appearing for the appellants that the names of the ladies did not appear in the evidence of any of the witnesses nor any lady had come to support P.W.1 rather the evidence of P.W.1 in paragraph-8 indicated that they on account of the burning of the dead body suspected to have murdered the deceased. When I was considering the evidence of P.W.1 in paragraphs-7 and 8 I had the inkling as if the witnesses had been informed by the family members of Pramila Devi 7 about her death and the prospective cremation of the dead body and that was the reason they were attracted to go to the village so as to participating in the cremation ceremony. They could not find the cremation going on and as such they came back to their village. It is true that P.W.3 has stated that he returned from the house of the appellants and thereafter filed the report but the fact is that the report was presented at the police station after two day of the date of occurrence on which date the witnesses visited the place of occurrence. Why the witnesses were not approaching the police to lodge the report for two complete days goes without explanation. The circumstances which I have found out from the evidence of the witnesses appears pointing out as if it might not be a case of killing the deceased by poisoning, rather the story could have been different which has been concealed by the witnesses to lodge a false report. 10. Regard being had to the evidence, which is available on the lower court records, I find that the prosecution has not succeeded in proving the charges to the hilt and there 8 were substantial reasons to extend the benefit of doubt to the appellants. 11. In the result, the appeal succeeds. The order of conviction and sentence passed upon the appellants are hereby set aside. Appellant Anchhu Bhagat @ Anshu Bhagat is in custody whereas other appellants are on bail. Appellant Anchhu Bhagat @ Anshu Bhagat shall be released forthwith, if not wanted in any other case. The remaining five appellants shall stand discharged from the liabilities of their respective bail bonds. The appeal is allowed in the above terms. Patna High Court, Dated the 6th of July 2011 Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)