Criminal Appeal (SJ) No.423 of 2007 Against the judgment of conviction dated 28.03.2007 and order of sentence dated 30.03.2007 passed by Additional Sessions Judge, Fast Track Court No.V, Begusarai in Sessions Trial No.168 of 2001 arising out of Bakhri P.S.case No.46 of 1999. KAILASH KUNWAR.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT With CRIMINAL APPEAL (SJ) NO. 468 OF 2007 1. SUBHASH KUNWAR 2. HIRA DEVI 3. MUKESH KUNWAR 4. INDU DEVI & 5. PUNAM DEVI.... .... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: Sri Suraj Narain Prasad Sinha, Senior Advocate. S/Sri Pramod Singh, Raj Nath Sharma Mrs. Heera (In Both the Criminal Appeals) For the Respondent: Sri 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, namely, Kailash Kunwar of Cr.Appeal No.423 of 2007 and the five appellants of Cr.Appeal No.468 of 2007 were charged together by the learned Additional Sessions Judge, Fast Track Court No.V, Begusarai under Sections 304B, 201/34 and 498A of the IPC and also under Section 4 2 of the Dowry Prohibition Act for being tried in Sessions Trial No.168 of 2001. By judgment dated 28.03.2007 delivered by the Presiding Officer of Fast Track Court No.V, Begusarai in the above noted Sessions Trial, the five appellants of Cr.Appeal No.468 of 2007 were held guilty only of committing the offence under Section 498A of the IPC while being acquitted of other charges framed against them. Each of them was directed to suffer rigorous imprisonment for one year as also to pay a fine of Rs.1,000/-, else to suffer rigorous imprisonment for one month. So far as appellant Kailash Kunwar is concerned, he was held guilty under all the charges and he was directed to suffer rigorous imprisonment for ten years under Section 304B IPC, rigorous imprisonment for two years and also to pay a fine of Rs.5,000/-, else to suffer rigorous imprisonment for three months under Section 201 IPC. So far as his conviction under Section 498A was concerned, appellant Kailash Kunwar was to suffer rigorous imprisonment for one year and was to pay a fine of Rs.1,000/-, else to suffer rigorous imprisonment for one year. Similar was the punishment inflicted upon him for his conviction under Section 4 of the Dowry Prohibition Act. The learned trial Judge directed that the sentences inflicted upon appellant Kailash Kunwar was to run 3 concurrently. 2. The prosecution narration emanates from the fardbeyan(Ext-5)of P.W.8 Vijay Kumar Choudhary who happens to be the brother of the deceased Gayatri Devi who was undisputedly married to appellant Kailash Kunwar some times in 1996. It was stated that after marriage she went to her matrimonial house and remained there for about one and half months in 1998 and was again taken back to her husband’s house and after living for about two months there, she had come back to her father’s house. It was stated that the appellant Kailash Kunwar and his father appellant Subhash Kunwar and other appellants were demanding the arrears of dowry in the sum of Rs.35,000/- and on account of not getting the money was threatening to kill the deceased. The informant stated that he pointed out his inability and difficulties to them. Whenever her sister came to his house she also complained that the appellants used to demand the arrear of Rs.35,000/- which was to be paid as dowry and were threatening her to be killed. 3. The informant, as an instance of torture, was citing his own predicament. It was stated by him that in the year 1998 he himself went to obtain the Rukhashati of his sister and on that occasion on account of non-payment of the above noted amount, he 4 was tied with a rope to one of the feet of the bed and the informant could be rescued only by the intervention of the villagers. He any how obtained the Rukhashati of his sister to come back, but still the appellants continued demanding the money from the informant. 4. It was stated that the appellant Kailash Kunwar came to his house for taking back the deceased Gayatri Devi but some delay was being caused on account of some function being solemnized which was being gone through in his family and the informant had requested the appellants to forward the date by three days, to obtain the Rukhashati of the deceased by 15.05.1999, but they were not agreeable and as such the appellant Kailash Kunwar came to the house of informant and stayed over there. On 17.05.1999 the elder brother of Kailash Kunwar named Mukesh Kunwar came there and chastised his brother appellant Kailash Kunwar as he was sitting idle there in spite of having come to take back the deceased, upon which the informant saw his sister off with appellant Kailash Kunwar and Mukesh Kunwar at Khagaria railway station. It was stated that on that occasion also the informant had given gold weighing six bhars and silver weighing eight bhars and clothes. 5. The informant stated that on 19.05.1999 5 at about 7 A.M. he received a telephonic message from Bhakhari informing him that the dead body of his sister was lying west of village-Rampur in a bamboo clump. He rushed to the place where the dead body was reported to be lying and found that there was a blackish mark on the neck of the deceased and her neck had been slit from its back by some sharp cutting weapon. The fingers of the right hand were also cut and the weapon used in causing the injury to the deceased was also lying by the side of the dead body. The informant under the above facts suspected that it could be the appellants who could have caused the death of his sister and had gone out of their house. 6. P.W.10 Umeshwar Prasad Singh, the officer-in-charge of the police station on the 18-19th May, 1999, picked up some rumours about a dead body lying at village Rampur Basbitta. It was pointed out by P.W.8 that in order to verifying the information he came to the bamboo clump where he found a dead body lying and a huge number of persons of village Rampur assembled there who had surrounded the place, but no one was identifying the dead body as to whose it was. The Dafadar and Chaukidar present there, pointed out that the dead body was of the wife of appellant Kailash Kunwar. Accordingly, P.W.10 went to 6 the house of the present appellant and found him absconding from there. In the meantime, as per P.W.10, P.W.8 arrived there and he gave his fardbeyan Ext-5 which was recorded by P.W.10. 7. P.W.10, thereafter, held inquest upon the dead body and prepared the document Ext-6 in that behalf. The inquest report was written at his dictation by S.I. K.B.Singh. He sent the fardbeyan to the police station for registering the case and on that basis the FIR of the case, Ext-7, was drawn up. P.W.10 took up the investigation and seized the articles which were lying at the place of occurrence by preparing seizure list, Ext-8. He sent the dead body for postmortem examination to Sadar Hospital, Begusarai and recorded the statement of witnesses. He obtained the postmortem examination report from the hospital and also organized the test identification parade for identifying the articles recovered during search of the house of one Mukti Ishwar and after finding material sufficient sent up the appellants for their trial. 8. In cross-examination P.W.10 stated as may appear from paragraph-29 that he searched the house of Mukti Ishwar on 25.09.1991 and recovered the articles as per seizure list Ext-9. These are the articles which appear having been put for 7 identification as was stated by P.W.10 in paragraph-9 and the identification evidence appears contained in Ext-4 which is the test identification parade chart and it is indicated by that particular document that the two articles, namely, full pant and a full shirt which were appearing at sls.no.1 and 2 of column no.3 of the chart were the wearing apparels of appellant Kailash Kunwar. The remaining articles appearing at sls.no.3 to 20 were the articles belonging to the deceased. P.W.10 stated that after the recovery of the articles from the house of Mukti Ishwar he was also arranged as an accused in the case. 9. The defence of the appellants was that they were innocent and they had falsely been implicated. It was suggested to P.W.8 that no occurrence had really taken place and that he had filed a false and concocted story for implicating the appellants. 10. In order to brining the charges home, the prosecution examined as many as 12 witnesses. P.Ws.1 and 2 were declared hostile as they did not state any fact in support of the prosecution charges, though they appear identifying their signatures on the inquest report. P.Ws.3, 4, 5 and 6 were the witnesses to the seizure memo and had identified their respective signatures on the document, but in 8 cross-examination each of them had stated that they had signed a blank paper at the dictation of the officer-in-charge of the police station and that nothing had been recovered in their presence. P.W.7 is the mother of the deceased, namely, Nirmla Devi who had come to depose in support of the charges as did P.W.8 the informant of the case. P.W.9 Ashok Kumar Choudhary stated that he was attracted to the scene of occurrence after having received the information that a dead body was lying somewhere as was stated by P.W.8 and he found the dead boy lying there after having reached there along with P.W.8, when the police came and recorded the statement of P.W.8. Besides the above, no material fact was stated by P.W.9. P.Ws.11 and 12 were the doctors who had held postmortem examination on the dead body and had prepared the postmortem examination report Ext-11. 11. The material evidence appears only of P.Ws.7 and 8. But, while I was being taken through the evidence of the two witnesses, what struck me the most was that it was very difficult to reconcile the evidence of two witnesses on some of the material parts of the prosecution case. P.W.7 Nirmla Devi was stating that it was a marriage in which appellant Kailash Kunwar had been kidnapped so as to be married to the deceased. However, P.W.8 Vijay Kumar 9 Choudhary was stating in paragraph-10 of his evidence that nothing really had happened as was stated by P.W.7. The other conflicting statement which appeared in the deposition of P.Ws.7 and 8 is that P.W.8 the informant stated that he received the information about the dead body being found near a bamboo clump at about 7 A.M. on 19.05.1999 whereas his mother P.W.7 in paragraph-14 was stating that it was in between 12 and 1 P.M. on that particular day when a constable from Bakhari police station had come and informed her husband and P.W.8 about the finding of the dead body of Gayatri Devi near the bamboo clump whereafter the P.W.7 and her husband went to place of occurrence whereas P.W.8 Vijay Kumar Choudhary went to Bakhari police station. This appears more probable because P.W.8 somewhere in his evidence stated that he reached the place of occurrence, gave his fardbeyan and thereafter he also signed the inquest report which was prepared by P.W.10. But, on perusal of the document Ext-8, the inquest report, what appears is that P.W.8 had not signed the document and the document had been signed by two witnesses, namely, Saligram Kunwar and Satnarayan Jha, i.e., P.Ws.1 and 2. The further difficulty with this Court is that P.W.7 stated that she went from the place of occurrence to the hospital 10 in Begusarai where the dead body had been forwarded for holding postmortem examination and as per her evidence P.W.8 was not present there. P.W.7 was stating that she had received the dead body and the cremation was performed thereafter, whereas P.W.8 stated that it was he who not only signed the inquest report but also went to the hospital where the dead body had been sent for postmortem examination and he received the dead body. This again appears a queer statement inasmuch as if either of the two witnesses, namely, P.Ws.7 and 8 had been present in the hospital on account of having accompanied the dead body, there was no reason for the Chaukidars to identify the dead body. Not only that if P.Ws.7 and 8 had been present at that place where the dead body had been located how was it that the name of the deceased had not been mentioned or divulged to the police at the time of drawing up of the inquest report. If the prosecution case was that the fardbeyan was recorded on 19.05.1999 at 9 A.M. then again there is no reason assigned by the prosecution as to why the inquest report was not bearing the name of Gayatri Devi, and in its place she being described as the wife of appellant Kailash Kunwar. These circumstances indicate as if neither P.W.7 was there nor P.W.8 was giving any statement at 9 A.M. on 19.05.1999 to the 11 police disclosing the name of the deceased and other necessary details which were the foundational facts for drawl of the FIR. 12. The above is the reason that it was vehemently argued before me that the prosecution is guilty of fabricating the report, like, the fardbeyan so as to implicating the appellants falsely. It was contended that if the fardbeyan was recorded on 19.05.1999 at 9 A.M. and it was promptly dispatched to the police station as is stated by P.W.10 for drawl of the FIR and indeed the FIR had been drawn up by 10.30 A.M. on 19.05.1999 there was no reason as to why the copy of the document could be reaching the Magistrate at Begusarai on the 5th day of the finding of the dead body or the document coming into existence. What I find further from the records is that the evidence of the mother of P.W.7 that while she proceeded to the place where the dead body was lying, P.W.8 was proceeding to the police station Bakhri. In my opinion P.W.8 had some purpose in going to the police station first and that probably was to manipulate things in collusion with the police officer for weaving out a false story for implicating the appellants. 13. The initial story that there was some bad relationship between the informant and the 12 appellants on account of the demand or non-payment of Rs.35,000/- appears falsified by the evidence of P.Ws.7 and 8 both. As may appear from their evidence no such statement had been made during the whole of the investigation by the two witnesses and that was the reason that the defence was drawing their attention to those facts in the respective paragraphs of their deposition for being suggested that they had not made that particular statement to the investigating officer. The other circumstance which emerges from the evidence of P.Ws.7 and 8 is that if the relationship was so strained then, how was it that on three occasions as per P.W.7 appellant Kailash Kunwar while visiting the house of P.Ws.7 and 8, had stayed over for not less than eight days. Such long stay by Kailash Kunwar at the house of P.Ws.7 and 8 could never have happened, had the relationship been not good and cordial and if the appellants had been insisted upon the payment of arrears of Rs.35,000/- towards dowry. 14. The identification chart shows that a full pant and a shirt was identified as those of appellant Kailash, but none of the witnesses has stated that he had participated in the identification parade and had identified them. The officer or authority who had supervised the parade also does not 13 appear examined. The two clothes were also not produced. No evidence was led to show any special identifying reasons due to which the clothes could be said, even faintly belonging to appellant Kailash Kunwar. 15. The above are some of the circumstances which I identify out of the material evidence adduced by the prosecution and on consideration of them, I do find that the charges were not established to the hilt. The appellants deserve to be acquitted of all the charges under which they have been convicted by the learned trial Judge by allowing the two appeals. The judgment of conviction and sentences passed upon each of the appellants are also hereby set aside. Appellant Kailash Kunwar(in Cr.Appeal No.423 of 2007) is in custody. He shall be released forthwith, if not wanted in any other case. The five appellants, namely, Subhash Kunwar, Hira Devi, Mukesh Kunwar, Indu devi and Punam Devi(in Cr.Appeal No.468 of 2007)are on bail. They stand discharged from the liabilities of their respective bail bonds. Patna High Court, Dated, the 30th day of August, 2011, Brajesh Kumar, NAFR. ( Dharnidhar Jha,J.)