CRIMINAL APPEAL No.440 OF 2004 (In the matter of an application under Section 374 (2) read with Section 389 (1) of the Code of Criminal Procedure against the judgment of conviction dated 17th May, 2004 and order of sentence dated 22nd May, 2005 passed by Shri Arvind Kumar Sinha, Additional Sessions Judge, Fast Track Court No. V, Saharsa in Sessions Case No. 79 of 1994) ********* MD. MOJAHID @ MUJAHID, SON OF MD. SAJUL, RESIDENT OF VILLAGE PALRAHI, POLICE STATION SONBARSA, DISTRICT SAHARSA..APPELLANT VERSUS THE STATE OF BIHAR ………………………………………..………RESPONDENT ******* FOR THE APPELLANT :- MR. JAWAHAR PRASAD SINGH, ADV FOR THE S T A T E :- MR. RAJENDRA NATH JHA, APP ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. This appeal has been filed against the judgment dated 17th May, 2004 passed by the Additional Sessions Judge, Fast Track Court No. V, Saharsa by which the appellant has been convicted to undergo rigorous imprisonment for ten years under Section 304B of the Indian Penal Code and also to undergo rigorous - 2 - imprisonment for two years under Section 201 of the Indian Penal Code. The First Information Report was instituted by Md. Aijul, the father of the deceased lady Sajda Khatoon and the informant of this case alleging therein that he heard rumors that her daughter was killed by her in-laws and, therefore, he along with Sk. Niyamat Ali, Md. Izhar, Md. Firoj and Mir Khwaja went to the village Palrahi where the deceased was living with her husband and in- laws and came to know that her daughter was missing from the house of her in-laws. Therefore, he went to the Police Station and lodged this First Information Report. Altogether five witnesses have been examined in this case. Out of the five witnesses, PW 3 Karamat Ali Mia and PW 4 Abdul Kuddus are not named in the First Information Report. The Investigating Officer has not been examined in this case and he would have able to show the circumstances in which Sajda Khatoon was killed. The case was instituted under Section 302 of the Indian Penal Code and it was only during the course of the trial that the charges were altered to one under Section 304B of the Indian Penal Code. PW 1 Md. Khwaja in his examination-in-chief supports the prosecution version and states that the informant’s daughter was tortured by her husband and - 3 - in-laws. Nothing has been said with respect to the manner of the death. Although this witness states that he could not give the date and year of the occurrence. He also states that they never protested that she was not living in her sasural. Regarding the period of marriage, this witness has denied at paragraph 17 that Sajda Khatoon was married ten years ago and later says that she was married three years ago. The story of panchayati being held has been introduced for the first time in the Trial Court. The evidence of PW 2 is similar inasmuch as this witness has also says that he could not say the date or year of the occurrence. At paragraph 12, this witness states that when he reached at the place of occurrence along with the informant, he found that the dead body was kept in the AANGAN and all the people of the village had gathered. It is further stated that people of two villages attended the “NAMAZE-JANAAZA”. PW 3 is also not able to state the date and year of the occurrence. He further states that he does not go to the house of the deceased and can not give the details with respect to the demand of dowry made by the family members of the deceased. However, at paragraph 12, this witness denies the story of PW 2 that the family members and villages attended the prayer ceremony for the lady at - 4 - the time of her burial. PW 4 is the uncle (CHACHA) of the deceased. He works in the Nazarat at Madhepura. He was not present at the place of occurrence. Therefore, he can not be a witness with respect to either the demand of dowry or was he in a position to give details or circumstances under which the deceased died. PW 5 is the informant. He has stated that the In- Laws of his daughter used to torture his daughter dowry and there was a panchayati in the village. Although the informant has not submitted any paper or document, with respect to the panchayati. It is further stated that the deceased had a baby boy 8-months old at the time when she died. This witness supports his case in the First Information Report regarding the demand of dowry. In his evidence, he has stated that he did not have faith in the police conducting investigation and, therefore, he filed a protest petition. This witness denies the suggestion that he was informed regarding the death of his daughter through a Maulana. He also denies that he was called by the In-Laws and that the deceased was buried in presence of all the villagers and in his presence as well. He further claims that his daughter was killed and hidden somewhere. He admits that he did not lodge a sanha or make any complaint prior to the occurrence - 5 - regarding the demand of dowry. On perusal of the First Information Report and the evidence of the prosecution witnesses, it appears there are several major lacunae in the evidence of the witnesses. It may be kept in mind that it is the case of the informant himself has stated that his daughter has been buried in the village. He has made complaint that the postmortem has not been conducted. The protest petition has been filed on 13.10.1992 alleging that the Investigating Officer has not taken steps to dig out the body of his daughter for the purpose of conducting postmortem. No complaint has been made by the informant to any higher officials with respect to this fact that the Investigating Officer is not conducting the postmortem and thereby trying to destroy the evidence that could have come forth in this case. If this fact is taken into consideration along with the evidence of PW 2 who has stated clearly the family members including, the witnesses who have been examined were all present at the time when the Sajda Khatoon was buried and thereby indicating that the appellant has sent information with regard to the death of the deceased to the informant, PW 5 and they attended the last rites of Sajda Khatoon. The defence has taken a clear stand that the deceased died a natural death and the informant was - 6 - given information and thereafter burial had taken place. However, the defence has not examined any witness in support of his case. The evidence with respect to the demand of dowry is also very weak. Nothing has been stated with respect to the cause of death by the informant, nor has the informant given details regarding the demand made by the appellant. Specific allegations has not been made against any of the family members of the deceased rather vague allegations have been made that there was a demand of dowry and on non-payment of the demand, Sajda Khatoon had been killed by her in-laws. Not a single witness of the village of the deceased has been examined in this case which could have indicated whether the deceased was tortured or harassed and finally killed by her husband and In-Laws. The very fact that the informant did not take steps for insisting on a postmortem of the deceased Sajda Khatoon indicates that he was not interested in learning true facts, and did not want them to come before the Court. These lacunae in the evidence lead to the conclusion that the appellant is entitled to the benefit of doubt. On the basis of the aforesaid allegations, the appellant has remained in jail for four years eleven & half months. - 7 - Accordingly, the conviction and sentence dated 17th and 22nd May, 2004 passed by the Additional Sessions Judge, Fast Track Court No. V, Saharsa is set aside and the appellant is acquitted from the charges leveled against him. The above named appellant is directed to be released forthwith if not required in any other case. In the result, this appeal is allowed. ( Sheema Ali Khan, J. ) Patna High Court April 13, 2009 N.A.F.R./Anand