CRIMINAL APPEAL (D.B.) No.617 OF 2004 With CRIMINAL APPEAL (D.B.) No. 688 of 2004 **** Against the judgment and order, dated 20th August, 2004, passed by the Additional Sessions Judge-cum-Fast Track Court, I, Madhubani, in Session's Trial No. 88 of 1990/132 of 2001 **** 1. Raj Kumar Yadav 2. Mithlesh Yadav 3. Bindeshwar Yadav All sons of Jibachh Yadav, resident of village Belhi Pipra Tola, P.S. Jainagar, district Madhubani .. Appellants (in Cr.Appeal (D.B.) No.617/04) Brahmdeo Yadav, son of Jibachh Yadav, resident of village Belhi Pipra Tola, P.S. Jainagar, district Madhubani .. Appellant (in Cr.Appeal (D.B.) No.688/04) Versus The State of Bihar .. Respondent (in both the Appeals) **** For the appellants .. M/S Ajay Kumar Thakur, (in both the Appeals ) Babita Kumari, Ravi Ranjan no. 1 and Amit Kumar, Advs. For the respondent .. Mr. Ashwani Kumar Sinha, (in both the Appeals) A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD 2 Shyam Kishore Sharma & Gopal Prasad, JJ. Since, both these appeals arise out of common judgment and, hence, being heard and disposed off by this common judgment. 2. The appellants, Raj Kumar Yadav, Mithlesh Yadav and Bindeshwar Yadav (in Cr. Appeal (D.B.) No. 617 of 2004) and Brahmdeo Yadav (in Cr. Appeal Cr. Appeal (D.B.) No. 688 of 2004 have been convicted under Sections 304B and 201/34 of the Penal Code and sentenced to undergo rigorous imprisonment for life for offence under Section 304B of the Penal Code and have further been sentenced for three years rigorous imprisonment for offence under Section 201/34 of the Penal Code. All the sentences are ordered to run concurrently. 3. The prosecution case, as alleged in the fardbeyan of the informant, Bechan Yadav (P.W. 6), that on 25.05.1988 at 09.00 p.m. he, along with Baleshwar Yadav (P.W. 4) stated before the Daroga of Jai Nagar Police Station that his sister, Phulpari Devi (deceased) married with Brahmdeo Yadav, son of Jibachh Yadav about four years ago in the year 1984 and at the time of duragaman a demand of seven bhar of gold was made by Brahmdeo Yadav and his father, but, he could give only five bhar gold and so the brother-in-law and his father were annoyed for not giving two bhar of gold. It is further alleged that for the said they used to abuse and assault her sister and several times he come for bidai, but, neither bidai was made nor he was allowed to meet with his sister. Further case is that on 25.05.1988 at about 02.00 p.m. he learned from Dukhi Mukhiya (not examined) that some occurrence has happened with his siter, he thought that some abuses may have 3 been made again, at 06.00 p.m. he learnt that his sister has been done to death by strangulation, then, he along with his co-villager, Baleshwar Yadav (P.W. 4) and Krishna Yadav (not examined) came to village Belhi where he learnt that appellants, Brahmdeo Yadav, Raj Kumar Yadav, Mithlesh Yadav and Bindeshwar Yadav have done his sister to death and are burning her dead body on which he along with co-villager, Ram Udagar Yadav (P.W. 5), Ram Parichchan Yadav (P.W. 1), Ram Ratan Yadav (P.W. 2), Bhaglu Yadav (P.W. 3), reached village Belhi and the dead body was being burnt at about half kilometer south from the house of the accused persons. 3. On the fardbeyan the first information report was lodged, after investigation the charge sheet submitted and consequently cognizance taken and after commitment of the case the charge was framed for offence under Sections 304B and 201 of the Penal Code against five accused persons. However, one of the accused, Jibachh Yadav, the father of these four appellants died on 17.07.2000. 4. However, during the trial seven witnesses were examined, but, P.W. 1, Ram Parichhan Yadav, P.W. 2, Ram Ratan Yadav, P.W. 3, Bhaglu Yadav, P.W. 4, Baleshwar Yadav, P.W. 5, Ram Udagar Yadav, P.W. 6, Bechan Yadav, the informant, and P.W. 7, Ravi Nath Singh, a formal witness who has formally proved Exhibits 2 and 3. 5. In additional to these witnesses four witnesses have been examined as Court witnesses, who are C.W. 1, Rajendra Yadav, C.W. 2, Basudeo Yadav, C.W. 3, Ram Narayan Yadav, and C.W. 4, Subh Narayan Yadav. 4 6. The documentary evidence adduced in the case as Exhibit 1 is the signature of the informant, Bechan Yadav, on fardbeyan Exhibit 2 is the first information report, Exhibit 3 is fardbeyan and Exhibit 1/1 is the signature of Ram Narayan Yadav on seizure list. 7. After the closure of evidence of prosecution, the statement under Section 313 of the Criminal Procedure Code was recorded. Taking into consideration the oral and documentary evidence the accused persons were convicted as stated above. 8. Learned counsel for the appellants contended that the prosecution has knot been able to prove the charges beyond reasonable doubts though he contended that though marriage is admitted within seven years of the occurrence. However, he contends that there is no evidence for subjecting to cruelty against the appellants, just prior to the occurrence and the death also not established to be in suspicious circumstance and some of the witnesses even deposed that the deceased was ill and died of illness and the investigating officer has not been examined in this case. 9. Learned counsel for the State has contended that the occurrence is alleged to be of 25.05.1988 and the dead body was disposed off in heavy haste and further since the marriage was solemnized within seven years and there is allegation of demand of two bhar gold and assault and subjecting to cruelty and the victim lady was young, hence, regarding her death it can well be inferred that the death was in suspicious circumstance particularly in a circumstance the dead body was being disposed of in heavy haste. 5 10. Taking into consideration the respective submission the question for consideration where the prosecution has been able to prove the charge beyond reasonable doubt. 11. The prosecution case as alleged in the fardbeyan that the marriage is solemnized about four years ago of the occurrence, in the year 1984, and there is allegation of demand of 2 bhar of gold and subjecting to cruelty and further the informant learned about the death and alleged that he found the dead body was being burnt. 12. However, seven witnesses have been examined to prove the prosecution case and in additional four witnesses have been examined as Court witnesses. Out of seven witnesses examined, P.Ws. 1, 4 and 5 have been declared hostile by the prosecution as they have not supported the prosecution case. The evidence of P.Ws. 2, 3 and 7 are hearsay and formal in nature. Further, P.W. 2 has stated in his evidence that the marriage of Phulpari Devi was solemnized with Brahmdeo Yadav in 1983. He learnt from Dukhi Yadav that one person has died and said Dukhi Yadav has not been examined as witness. He has further stated that he learnt that sister of Bechan Yadav has been done to death and the dead body is being burnt. Further, in cross examination he has stated that he has not seen anything from his own eyes and has stated whether learnt from Bechan Yadav, hence, his evidence is only a hear say. However, he has stated in his cross examination that Phulpari Devi was not blessed with child and she always used to remain ill, hence, the evidence of P.W. 2 is not reliable of much relevance to support the prosecution case except that marriage solemnized in 1983. 6 13. P.W. 3 in his evidence has stated that there was dispute of two bhar of gold and has stated that for two bhar the Raj Kumar Yadav and family members used to assault the deceased. He has further stated that in Jai Nagar Bazar he learned that Raj Kumar Yadav and family members killed Phulpari Devi. He went to Belhi and saw the dead body being cremated. However, in his cross examination he stated that he has come along with Bechan Yadav to depose and has talked with Bechan regarding his case. He has further stated that whatever Bechan Yadav stated that he has deposed in the case and he did not saw anything from his own eyes. He has no concern with the accused persons and he has not in visiting term and, hence, whether deposed in the examination-in-chief that he himself stated in his cross examination that he did not see anything from his own eyes and whatever Bechan Yadav has stated that he only stated, hence, his evidence is hit by hearsay and neither reliable nor trust worth. Only evidence which remains is evidence of P.W. 6, the informant. He has stated that marriage solemnized in 1982 and doragaman in 1986 and he used to go for bidagari of her sister and Jibachh Yadav, father-in-law of his sister, used to demand two bhar gold and was impressing that if two bhar gold is not given then they will misbehave with his sister. He has further stated that he learnt on 25.05.1988 from Dukhi Yadav that his sister has been done to death by Raj Kumar Yadav, Mithlesh Yadav, Bindeshwar Yadav and Brahmdeo Yadav and then he went along with Baleshwar Yadav (P.W. 4), Ram Parichhan Yadav (P.W. 1), Bhaglu Yadav (P.W. 3) and Ram Ratan Yadav (P.W. 2) where the dead body was being 7 burnt and there Raj Kumar Yadav and Bindeshwar Yadav abused them, then he came and make the statement to the police. 14. Learned counsel for the appellants has submitted that P.Ws. 1, 4 and 5 are hostile having not supported prosecution case and P.W.s. 2 and 3 are hearsay and P.W. 6 who is the informant and brother of the deceased has not stated in his evidence that the accused persons prior to the occurrence subjected her to cruelty. There is only evidence that Jibachh Yadav used to demand and was impressing that if the money will not be paid then misbehaviour would be there with his sister. However, in the cross examination he has stated that he did not remember that when for the first time demand was made. He stated that the demand was made one year prior to the occurrence and he learned about the occurrence and went to the placed and remained there. 15. Having regard to the fact it transpires that there is no eye witness to the occurrence about the allegation of subjecting cruelty or the death of the deceased. Learned counsel for the appellants contends that the informant reached there at the time of burning the dead body and, hence, it is not a case that he has no knowledge and taken the plea that after participating in the last rites he filed the case. Four Court witnesses were also examined in this case. C.W 1 has stated that the occurrence is of about 16-17 years back and he learnt that the deceased died out of the long illness. C.W. 2 has also stated that he has learned that she died out of illness as she was ill. C.Ws. 3 and 4 have also stated that Phulpari Devi died of illness. However, under these facts and circumstances the question for consideration is that the fact 8 proved whether established an offence under Section 304B of the Penal Code. However, to establish the offence under Section 304B of the Penal Code three facts are required to be established, the marriage was solemnized within seven years and further it is to be shown that soon before the death the deceased was subjected to cruelty or harassment by her husband or any member in connection with any demand for dowry and the death of a women by burn or bodily injury or occurs otherwise found under normal circumstances. However, the marriage is within seven years having been admitted, but, so far the evidence regarding subjecting to cruelty for non-fulfillment of the demand just before the occurrence is missing. P.Ws. 1, 4 and 5 have been declared hostile, P.Ws. 2 and 3 are hear say witnesses and the only evidence is the evidence of P.W. 6 as P.W. 7 is only a formal witness. P.W. 6 in his examination-in-chief has not stated about the subjecting to cruelty for non- fulfillment of the demand. In cross examination he has stated that the demand was of two bhar gold was made about one year’s back from the date of occurrence. So far the death of the deceased is concerned, there is no eye witness regarding it except that the deceased was being burnt, but, how she died has not been stated. However, it has been submitted by learned counsel for State that since the death was only within four years of the marriage of a lady and, hence, it may be inferred that the death is in suspicious circumstance along with the fact that the dead body was being disposed off in heavy haste. The presence of the informant at the site of cremation established in the first information report itself apparent and the informant has stated that he learnt about that something has happened at about 04.00 p.m. 9 and then again he learned about 06.00 p.m. However, P.W. 3 in his evidence has stated that the deceased has not been blessed with child and issue it is stated that the informant went and informant the police on 25.05.1988. The investigating officer has not been examined in the case and has not come forward to depose and, hence, the fact to attract Section 304B of the Penal Code itself become doubtful in view of the fact that the subjecting to cruelty to the deceased for the demand has not been established soon before her death as the only evidence is that the demand was made about one year back and there was no evidence that any has seen the deceased subjecting to cruelty for the said non-fulfillment. 16. Learned counsel for the appellants has relied upon decisions reported in 2004 (7) S.C.C., 724 ( Balwant Singh & Anr. Vrs. State of Punjab) and 2006(1) S.C.C., 463 (Harjit Singh Vrs. State of Punjab) where it has been held that if the ingredients about subjecting cruelty just before her death or soon before her death has not been established then Section 304B of the Penal Code may not be attracted or held and, hence, having regard to the fact that subjecting cruelty just before death has not been established and the fact that deceased remain to be ill the death in suspicious cremation also not established beyond reasonable doubts taking into consideration the entire facts and circumstances we find and hold that the prosecution has not been able to establish the case beyond reasonable doubts to attract Section 304B of the Penal Code and, hence, under the facts and circumstances we find and hold that the offence under Section 304B of the Penal Code has not been established beyond all reasonable doubt. The 10 learned lower Court did not take into consideration these aspects and erred in convicting the accused person. 17. Hence, the judgment and order of conviction is not sustainable in the eye of law and, hence, it is set aside. 18. In the result, both the Criminal Appeals are allowed. The appellant, Brahmdeo Yadav, (Cr. Appeal (D.B.) No. 688 of 2004) is in custody, he is ordered to be released from jail forthwith, if not required in any other case, the rest of the appellants (Cr. Appeal (D.B.) No. 617 of 2004) are discharged from the liabilities of their bail bonds. ( Shyam Kishore Sharma, J. ) ( Gopal Prasad, J. ) The Patna High Court, The 06th day of April, 2010, N.A.F.R./S.A.