CRIMINAL APPEAL No.92 OF 1989 Against the judgment of conviction and order of sentence dated 10.01.1989 passed in Sessions Trial No. 56 of 1988/87 of 1988 by 3rd Additional Sessions Judge, Nalanda at Biharsharif. Brij Nandan Pandey, son of Shri Brahmdeo Pandey, resident of village – Sumaka, Police Station – Chandi, Tharthari, District – Nalanda. ------Appellant. Versus The State of Bihar. ------Respondent. ***** For the appellant : Mr. Pramod Kumar, Adv. For the State : Mrs. Shashi Bala Verma, APP. ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** S.K. Sharma & Akhilesh Chandra, J.J. The sole appellant Brij Nandan Pandey, has preferred this appeal against the judgment and order of conviction dated 10th January 1989 passed by learned 3rd Additional Sessions Judge, Nalanda, in Sessions Trial No. 56/1988/87/1988, whereby the appellant was found guilty under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. This appellant was charged along with other co-accused namely Sheonandan Pandey and Siya Devi. All the three were charged under section 364/34, 201 and 302/34 of the Indian - 2 - Penal Code, but, after trial, those two persons namely, Sheonandan Pandey and Siya Devi, were acquitted from charges for the entire offence, but, the appellant was found guilty for the offence under section 302 of the Indian Penal Code and for rest of the offence he was acquitted. 3. The written report (Ext.1) of Awadhesh Pandey ((P.W.4) addressed to the Officer-in-Charge, Nalanda, is the basis of the prosecution case. Allegation of Awadhesh Pandey is that his daughter Rekha Devi was married about 8 years ago with Chandramani Pandey son of appellant Brij Nandan Pandey. After marriage this appellant and his son Chandramani Pandey were demanding money. Lastly the informant’s son-in-law has demanded Rs. 10,000/- for joining training programme. The informant has expressed his inability but Chandramani Pandey threatened and ultimately left the house. 4. The informant went to bring his daughter by way of ‘Rokhsadi’ but it was initially denied. Later on, on 12.12.1986, the informant’s another son-in-law Ram Dular Pandey (P.W.3) came and informed that Rokhsadi would - 3 - not be performed because the informant’s daughter has gone to Ahmedabad along with her ‘Nanad’. The informant was also informed about this through a letter. On 11.01.1987, the informant sent Sanjay Pandey (P.W.2) to Sumka i.e. place of marriage of informant’s daughter, then he knew that his daughter has been killed by Chandramani Pandey and her family members namely his father Brij Nandan Pandey (appellant), Sheonandan Pandey (acquitted) brother of Brij Nandan Pandey and Siya Devi (acquitted) wife of Brij Nandan Pandey and it was also informed that the dead body of Rekha Devi has been cremated. 5. After getting this information, the informant sent Bhola Pandey on 13.01.1987 to village Sumka, where wife of this appellant wept and told that the ultimate has happened and so she could be spared. It was alleged that all the accused persons have killed the informant’s daughter and they have disappeared the dead body. The motive alleged in the First Information Report that the informant was father of only five daughters and his son-in- law was demanding money and on account of - 4 - failure to get the desired amount accused persons eliminated the informant’s daughter. The written report was endorsed Exhibit-3 to Chandi Police Station, where Chandi P.S. Case No. 12 dated 15.01.1987 under section 302/34 and ¾ of the Dowry Prohibition Act was instituted and formal First Information Report (Ext.1/1) was drawn up. 6. The allegations were investigated into and after investigation charge sheet was submitted, the case was committed to the court of sessions where charges were framed against the accused persons and trial proceeded. 7. The defence of the appellant was of false implication and also that the deceased used to remain ill and one day there was acute pain in her stomach and while she was being carried to Patna for proper treatment and when she reached Fatuha her condition deteriorated and she was taken to one Dr. K.D.P. Verma (D.W.2) who examined and advised her to be taken to P.M.C.H. Patna. While informant’s daughter was being taken to Patna for further treatment then in the way she expired. She was carried to Bansghat Patna, where last rites - 5 - were performed. Shradh was accordingly performed and information to this effect was sent to the father of the deceased by Guru Saran Thakur (D.W.1) but no body attended the Shradh. In fact it was a natural death due to ailment and informant picked up this opportunity to harass and implicate the appellant. 8. It has to be seen as to whether the prosecution was able to prove the charges against this appellant beyond all shadow of reasonable doubt. 9. In order to prove this case the prosecution has examined altogether five witnesses they are Bhola Pandey (P.W.1), Sanjay Pandey (P.W.2), Ram Dular Pandey (P.W.3), Awadhesh Pandey (P.W.4) and Devendra Prasad Singh (P.W.5) the Investigating Officer. P.W.4 is the informant of the case. 10. The defence has also examined three witnesses namely, Guru Sharan Thakur (D.W.1), Dr. K.D.P. Verma (D.W.2) and Janki Pandit (D.W.3). 11. Evidence of informant (P.W.4) is being discussed firstly. He has told that he - 6 - was father of five daughters and having no son and Rekha Devi his fourth daughter was married with Chandramani Pandey, son of this appellant. She remained issueless. After her marriage, her husband Chandramani Pandey came and demanded money sometime for service and sometime for training. On the eve of marriage of his youngest daughter, Rekha Devi came to her parent’s house. On the occasion of the marriage of the fifth daughter of the informant, Chandramani Pandey came and pressed for Rukhsadi of his wife and also demanded Rs. 10,000/- for the purpose of service. The informant expressed his inability and thereafter Chandramani Pandey gave various threats. Ultimately Rekha Devi went with her husband. The informant went to bring Rekha Devi in the month of Ashwin but it was deferred and informant was told that Rukhsadi would be performed on the day of Purnima at Aghan month. Prior to the date fixed for Rukhsadi on the date of 12.12.1986, Brij Nandan Pandey met with another son-in-law of informant Ram Dular Pandey (P.W.3) and told that Rekha Devi has gone to Ahmadabad so her Rukhsadi was not - 7 - possible and P.W.3 was asked to inform this to the informant. A letter to this effect was also sent. This letter is on the record as Ext.2. On 11.01.1987, Sanjay Pandey (P.W.2) went to bring Rekha Devi but he knew that Rekha Devi has been killed one month prior to that by Chandramani Pandy, Brij Nandan Pandey, Sheonandan Pandey and mother of Chandramani Pandey and her dead body was made to disappear. Informant thereafter sent P.W.1 to village Sumka and he also gave similar information. Mother of Chandramani Pandey told Bhola Pandey that now Rekha is no more so the prestige of her family would be destroyed which should be salvaged. This informant went to police station and informed through a written report written by P.W.3 which has been marked as Ext.1. 12. In examination-in-chief this witness stated about the fact that prior to the death same demand was being made by Chandramani Pandey. Informant and others received information that Rekha Devi has been killed by four persons including this appellant and two others who are acquitted. Therefore, from the evidence of this witness, it is apparent that - 8 - whatever allegation/evidence was made, it was especially against Chandramani Pandey and with regard to the offence of killing it was alleged that it was by four persons including this appellant and two others who are already acquitted. There is no specific role attributed to this appellant and his case cannot be separated from the case of Sheonandan Pandey and Siya Devi who are already acquitted. 13. There is no witness of the occurrence. The entire evidence is based on the basis of informations which are not direct rather the circumstances and the circumstances should be so consistent that it could be made one complete chain leading to one conclusion that the death/murder was committed in the manner as it has been alleged with regard to the demand of money. 14. P.W.1 has stated that Brij Nandan Pandey informed him that a letter was sent by Brij Nandan Pandey in the month of Jaith to Awadhesh Pandey for demanding Rs. 10,000/- and the money was not paid. In court question he stated that money was demanded. This witness P.W.1 was confronted as to whether such - 9 - statement was given before the police then he added that he has not read that letter through which that demand was raised. 15. The Investigating Officer was examined as P.W.5. In para 9, his attention was drawn as to whether such statement was made before P.W.5 by P.W.1. It was denied. Therefore, the evidence of P.W.1 is to that extent the demand has been made for the first time before this court and not before the Investigating Officer. It cannot be relied upon for the purpose of arriving at any conclusion. 16. P.W.3 in para 2 has stated that Chandramani Pandey was demanding money from his father-in-law but in para 7 he has been admitted that no such statement was made before the police as this statement was made for the first time in the court P.W.4 in para 1 has stated that Chandramani Pandey used to come once or twice in a year and on the plea of service or training the money was being regularly demanded. The money was demanded in last Jaith on the eve of marriage of his younger daughter. On that eve, Rs. 6000/- was demanded and on refusal threatening was given, - 10 - but this fact is not mentioned in the First Information Report which is initial version of the occurrence. No doubt, entire facts cannot be incorporated in the first version of the occurrence, but the important facts are necessarily to be mentioned in the fardbeyan. 17. P.W.4 has produced a letter by Chandramani Pandey (Ext.2) through which a demand was made but P.W.4 has stated that though he has initially stated about this letter but after going through the letter no such demand was being made in such letter. Later on, he stated that no letter was written at all by this appellant. Therefore, whatever demand was made through letter it was by Chandramani Pandey and not by this appellant. Therefore, on this score also, his case is exactly similar to others who are already acquitted. His case to that extent is different from the case of Chandramani Pandey and identical with those who are already acquitted. 18. In this case the evidence is that killing was of in sequence of refusal of payment of money and that is the motive. No doubt, motive is not always relevant in - 11 - criminal offence, but, it is well-settled through a catena of judgments that once a motive is alleged then it has to be proved. Vide a judgment reported in 1972 Criminal Law Journal at page 73, which has been followed in the number of judgments it has been asserted that once a motive is alleged then it must be established. In this case, the motive though has been alleged but has not been proved. 19. There is not even one witness of the P.O. Village. No doubt, villagers are not ready to become witnesses against there own co- villagers, but the Investigating Officer has also not stated as to whether he has tried to collect some evidence from the villagers because they were the witness who could have unfolded the truth. The Investigating Officer has merely stated that he has tried his best but he failed to get any witness. The Investigating Officer has stated that Dy.S.P. has informed him to consider the plea of the defence that it was natural death due to illness for which death certificate was issued by the authorities of Bansghat at Patna. But this fact was not investigated into. This was - 12 - the most important aspect of the case because of contradictory and conflicting nature of allegation about the death. Failure of the Investigating Officer to investigate into the death certificate furnished by the appellants creates a doubt as to why the prosecution has failed to consider the most vital link between the occurrence and the culpability of the accused persons. 20. Considering the every aspect of the matter and also after considering the deposition of witnesses and the pleas of the parties, it is apparent that the prosecution has not come with clean version and has failed to ascertain the real cause of the death of Rekha Devi. There is no explanation as to why the Investigating Officer has failed to ascertain the cause of death. There has been no investigation despite the death certificate. On the other hand, D.W.2 has come and deposed that Rekha was advised by him to be carried to P.M.C.H. Patna in view of her grave situation. This version lends credit to the defence version that the death of Rekha Devi was in the manner as stated by them and not as alleged by - 13 - the prosecution. 21. Considering all the shortcomings on the record and also that almost under identical situation others have been let off. We are of the view that prosecution has not been able to prove its case beyond the shadow of all reasonable doubts. 22. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed and the appellant is acquitted of the charge. The appellant is discharged from the liabilities of his bail bonds. Patna High Court Date : The 11th January 2011 Rajeev/N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)