1 Criminal Appeal (SJ) No.41 of 2006 Against the judgment of conviction and order of sentence dated 29.11.2005 passed by Additional District & Sessions Judge, Fast Track Court No.4th, Sheikhpura, in Sessions Case No.555 of 1993, Trial No.26 of 2005. SHAILENDRA KUMAR--------------------Appellant Versus STATE OF BIHAR-------------------Respondent ----- For the appellant:- Sri Ajay Mishra, Amicus Curiae For the State:- Sri S.N.Prasad, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant Shailendra Kumar questions the correctness of the judgment dated 29.11.2005 passed by Fast Track Court No.IV, Sheikhpura in Sessions Case No.555 of 1993 by which the appellant was held guilty of committing offences under Sections 304B, 201 and 498A IPC and was directed to suffer rigorous imprisonment for seven years and three years respectively under Sections 304B and 201 IPC. The appellant was further directed to suffer rigorous imprisonment for three years as also to pay a fine of Rs.5,000/- and in default of making payment of fine, he was further to serve simple imprisonment for six months. 2. The prosecution story is contained in the written report(Ext-1) of P.W.3 Balraj 2 Prasad on the basis of which the FIR of the case was drawn up. It was stated in Ext-1 that the younger sister of P.W.3 Kanti Devi was married to this appellant three years prior to the occurrence and she used to visit regularly his house from her matrimonial place. It was alleged that about 15 days prior to 29.11.1990 his younger brother Dhanraj Prasad(not examined)had gone for Bidai of his sister Kanti Devi and, accordingly, the Bidai was allowed by the appellant, but when the deceased and Dhanraj Prasad had come to a Bagicha situated south of village-Kurmichak, the present appellant came there and forcibly took his wife away stating that unless the parents had paid Rs.15,000/- to him, he would not allow the deceased to go to her house. Dhanraj Prasad came to his house and related the above incident to his family members and the informant P.W.3. 3. It was stated that on 27.11.1990 his Jija(sister’s husband) came to his house and stated that his sister had been murdered on 21.11.1990 and her dead body had been cremated by the accused persons upon which P.W.3 went to the village of the appellant along with his 3 villagers, Sharvan Kumar(P.W.2), Jadunandan Mahton(P.W.1), Ramchandra Prasad(not examined) on 28.11.1990 and found that the family members of the deceased were absent from their house and the same was locked. On making enquiries from the neighbouring families the informant (P.W.3) learnt about the incident and accordingly he filed a report on 29.11.1990. 4. The investigating officer of the case has not been examined, as such, there is no evidence on record as to what were the objective findings on different aspects of the case but what appears from the record is that three accused persons including the present appellant were sent up for trial. However, during the pendency of the trial the reports about the death of co-accused Anil Kumar and Bachhu Mahto, the brother and father respectively of the appellant were received and by orders dated 19.5.2000 and 6.4.2005 the proceedings against Bachhu Mahto and Anil Kumar were dropped leaving the trial only against the solitary accused, i.e., the present appellant who was found guilty and sentenced as indicated earlier. 5. In spite of a telephonic 4 information being given to him on the number appearing at the back of the power, no counsel appeared and in fact the family members of the counsel informed that he was not attending court and hence this Court has to appoint Sri Ajay Mishra as Amicus Curiae who was desirous of assisting this Court in the present appeal. 6. It was contented by Sri Mishra that Dhanraj Prasad, who was the full brother of P.W.3 and who had informed him about the deceased being forcibly taken back by the appellant to her matrimonial house after being initially allowed to accompany. Dhanraj Prasad has not been examined. Likewise, the star witness of prosecution Anil Kumar who was the Jija of P.W.3 was examined in examination-in- chief and did not appear ever to complete his evidence even in examination-in-chief. The court below ignoring this aspect, has drawn an adverse inference against the defence and has admitted the evidence of P.W.4 so as to seeking proof of the charges. It was contended that the non-examination of the investigating officer has been held by the learned trial Judge as not prejudicial the defence, but it remains quite apparent from the evidence of P.W.3 when he was 5 admitting that he had never made any statement that the present appellant had demanded Rs.15,000/- from them. It was contended that the status of the parents of the deceased and P.W.3 was so precarious as making it quite improbable and absurd that any demand of as heavy a sum as of Rs.15,000/- could be made in the year 1990. It was contended that there was no basis for the learned trial Judge to raise presumption against the appellant under Section 113B of the Evidence Act. 7. Sri S.N.Prasad, learned A.P.P. has resisted the appeal on the submission that a serious circumstance was asserted by P.W.3 when he was making statement in his written report that after having initially allowed the deceased to accompany her brother Dhanraj Prasad, he took her back forcibly so as to extorting Rs.15,000/- from her parents. It was contended that Anil Kumar the other witness who was the star prosecution witness also came up but unfortunately could not be examined fully. It was contended further that the evidence which was available to the learned trial Judge might have been sufficient in justifying the judgment and order of sentence which was passed 6 by him. 8. The first circumstance which has been highlighted by Sri S.N.Prasad, the learned A.P.P. opposing the present appeal of forcibly taking back the deceased from the company of Dhanraj Prasad may not be a circumstance for recording conviction of the appellant, firstly, for the reason that this fact was not put to the present appellant in his examination under Section 313 Cr.P.C. If it was a circumstance which has been used by the learned trial Judge for raising a presumption of guilt, then it was desirable under the settled principles of law that it ought to have been put to appellant Shailendra Kumar. The statement of Shailendra Kumar is available at page-16 of the lower court records in its original and the court finds no question put on the above circumstance to the appellant. The second fallacy in using the above circumstance for raising the presumption of guilt was that this fact was narrated to P.W.3 and others by the brother of P.W.3, namely, Dhanraj Prasad and undisputedly Dhanraj Prasad was never produced during the trial of the case. There is no explanation available anywhere on the whole of the record 7 as to why Dhanraj Prasad was not produced which raises an inference that, probably, Dhanraj Prasad was not ready to support a false statement which was made by the informant in his written report and finding that the prosecution simply kept him away from the witness box. 9. In the light of the above inference which this court draws on account of non- examination of Dhanraj Prasad, it pales into doubt that anything had really happened 15 days prior to the occurrence, like, the deceased had been allowed to accompany her brother Dhanraj Prasad and she had been forcibly taken back to the appellant’s house by the appellant so as to extorting Rs.15,000/-. The whole story as such pales in doubt and this could not be treated as a circumstance enforcing the guilt of the present appellant. 10. The learned trial court has held that the defence had filed a petition amidst the examination of P.W.4 Anil Mahto. I do not question the integrity of the officer, who was making the record of deposition of P.W.3 on 28th of December, 2002, but the court does not have any hesitation to hold that the finding of the 8 learned trial Judge that P.W.4 was not cross- examined and adjournment was purposeful sought by the defence is simply not born out by the original record of deposition of P.W.4 Anil Mahto. On perusal of deposition sheet of P.W.4 what this court finds is that the examination- in-chief of P.W.4 Anil Mahto had not even been completed and the hearing of the witness was adjourned. It is true that there is a mention in paragraph-2 of the deposition sheet that at that particular stage the defence had filed an application seeking the adjournment of hearing of the witness, but when the examination-in- chief was itself not completed then this court doubts the record that the defence had filed any application seeking the adjournment of hearing of the witness. In my considered view, the learned Judge who was presiding over the court on 28th of December, 2002 was probably creating an alibi for wrongly adjourning the hearing. The examination-in-chief of P.W.4 had not been completed and the defence did not have any reason or necessity on account of the non- completion of the examination-in-chief of P.W.4 to seek adjournment of the proceeding because it was not required to put any questions to the 9 witness rather the learned prosecutor was bearing the burden of going through the examination-in-chief of P.W.4. 11. In view of the above finding the raising of adverse inference by the trial court against the defence for not going through the cross-examination of P.W.4 appears completely unfounded and rather partial. When the cross- examination part of the evidence of P.W.4 had not even been completed, then whether was the question of non-cross-examination of the witness. The learned trial Judge appears inventing a wrong reasoning against the state of the record for raising an inference against the defence illegally so as to justifying his order of conviction. The non-completion of the examination-in-chief of evidence of P.W.4 and non-production of his for cross-examination renders his evidence in-admissible and as such the learned Judge’s finding that he was supporting the claim of the prosecution that he had informed the witnesses about the killing of Kanti Devi and the cremation of her dead body appears based on no evidence and as such not sustainable in law. 12. The learned trial court has held 10 that the non-examination of the I.O. had not prejudiced the defence. This finding appears completely out of context as regards the deposition, at least, of P.W.3. The attention of P.W.3 was drawn in paragraph-5 of his evidence. He had stated that he had made statement before the investigating officer that whenever the deceased used to come to his house, she used to narrate to him about the demand of money by the accused persons from her. It was a very important statement which was made by P.W.3 in his evidence which could give rise to an inference that a demand of dowry was being made by the accused persons from the deceased and on that account she was illtreated and, lastly, she died an unnatural death. The examination of the I.O. could have been necessary so as to proving, this fact as there was a positive assertion from P.W.3 that he had made such statement before the police, whereas the defence was suggesting to him that he had never made such statement. This aspect of non-examination of investigating officer in my considered view has deeply prejudiced the defence. Not only that the finding appears quite contrary to the record as accepted by 11 P.W.3. None of the family members came to depose in favour of the demand and torture on that account. In cross-examination of P.W.3 in paragraph-5 onwards the witness has stated that his parents and brother had also gone to the village of the appellant so as to verifying the veracity of the information and they had come across the truth, but none of them was ready to come to depose in court. The court feels that probably the other family members of P.W.3 were not coming forward to depose only because they were very much satisfied about the explanation or about the report they could have received from the villagers about the death of the deceased which was telling a story different from that told by P.W.3. 13. The learned trial Judge has raised an inference under Section 113B of the Evidence Act and, thus, went on to convict the appellant under Section 304B IPC. Statutory presumptions could be raised only when ingredients constituting the offence were established by evidence led by prosecution. Merely because there is a charge or there is some semblance of evidence, may not be sufficient to raise statutory presumption. Unless all the 12 ingredients constituting an offence are constituted by admissible and acceptable evidence merely because there is a statute directing the raising of the presumption, the court could not raise it. There was absolutely no evidence that any demand of money was made. There was complete lack of evidence on the torture of the deceased. There was no witness to say as to how the deceased happened to die. 14. The learned trial Judge has rejected the evidence of D.W.1 and D.W.2 by noting that there was a conflict in their evidence. It was pointed out by the learned trial Judge that D.W.1 was giving the cause of the death of the deceased as dysentery whereas D.W.2 was telling that it was due to loose motion. This court wants to note that when witnesses are rustic, coming from a village who could not be capable of distinguishing between the case of dysentery and a case of loose motion, could not it be their sense of appreciation and reproduction that they were varying from each other. One common aspect in the evidence of D.Ws.1 and 2 was that it was death on account of loose motion as dysentery may also be another aspect of the same illness. 13 The learned trial Judge appears going completely awry and one sided in appreciating the evidence. The approach is not appreciated by this court and specially when the star witnesses of prosecution cited in the written report which was filed after seven days of the incident were not examined. The written report was filed after due deliberation after quite some delay and there was no explanation in that behalf also. 15. The above are the reasons by which the court finds the judgment of the trial court utterly being not sustainable in law. The appeal is allowed. The order of conviction and sentence passed by the learned trial Judge is hereby set aside. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. Patna High Court, Dated, the 22nd of June, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)