Appeal (SJ) No. 403 of 2007 --------- Against the judgment and order of conviction and sentence dated 15.3.2007 and 20.3.2007 passed by Shri Amar Nath Sahay, Ist Additional Sessions Judge, Munger in S.T. No. 977 of 2004. -------- 1. Subhash Yadav, son of Sita Ram Yadav, 2. Sudama Devi, wife of Sita Ram Yadav, both residents of village - Paura, Police Station – Khagaria, District – Munger …………….. Appellants Versus The State of Bihar ……………… Respondent ------------ For the Appellants : Shri Ajay Mishra, Advocate (Amicus Curiae) For the State : Shri S.N. Prasad, A P P ---------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. This appeal, preferred by the two appellants, is directed against the judgment of conviction dated 15.3.2007 passed by the Additional Sessions Judge I, Munger in S.T. No. 977 of 2004 by which the appellants were found guilty of committing offence under sections 304B IPC and section 4 of the Dowry Prohibition Act. Appellant Subhash Yadav was directed to suffer RI for ten years and one year respectively on the two counts of his conviction whereas appellant Sudama Devi, the mother of appellant no. 1 was sentenced to RI for seven years and one year respectively on the two above 2 counts. The sentences in respect of both the appellants were directed to run concurrently. 2. Some of the facts appear admitted that Sunita Devi (deceased) was married to appellant Subhash Yadav some five years prior to the occurrence and she had a son out of the wedlock. It is also not denied that Sunita Devi died and death was under circumstances not natural. The prosecution alleged that Sunita Devi on the day of the occurrence, i.e., on or about 30th March, 2004, was residing in the house of the appellants whereas the appellants set up a defence that the lady had strayed away out of their house as she was a deranged person and probably met with her accidental death. The primary allegations, which appear against the appellants are that after having resided in the house of the appellants after being married to appellant no. 1 for about one and half years and after having begotten a son, the deceased was being asked to bring rupees fifty thousand as dowry by two appellants, which was not being paid and, as a result of that, she was tortured. It was lastly stated that on 30th March, 2004, a telephonic message was received by the informant Sudhir Yadav (P.W. 8) informing him that the dead body of his sister was lying on the railway track as she had been murdered by her family members. Receiving the information, P.W. 8 states, he came to Munger with some persons but, since the dead body had been brought to the police station by them, he went there and identified the dead body to be that of his sister. 3 3. The report (Ext.3) was lodged and on that basis, the FIR was drawn up and at the end of it, final report sending up the appellant for trial, was submitted. 4. The defence of the appellant, I have already noticed, and that was that the lady was a deranged person, who had strayed away from the house of the appellant and had met with an accident at the railway track and was crushed to death. 5. During the course of trial, eight witnesses were examined by the prosecution, two by the court as court witnesses and one by the defence. Out of eight witnesses, P.Ws. 1, 2 and 3 were declared hostile as they stated that they did not know anything about the occurrence. P.W. 4 Dr. Gyan Bhushan had held postmortem examination on the dead body of Sunita and had prepared Ext. 1, the postmortem examination report. As per the evidence of P.W. 4 Dr. Gyan Bhushan, the whole skull and neck as well were completely crushed. The brain had come out on account of the bone being crushed. The neck was separated in two parts, head being attached to it with thin string of skin. There were injuries also on the right hand and on that account the wrist had completely been smashed. Extra- vasation of blood and blood clots had been found in cranial cavity and the brain matter and menings were lacerated. Trachea, oesophagus and larynx were found normal. In the opinion of P.W. 4, the death had occurred due to shock and haemorrhage resulting from the above mentioned injuries, which were caused by hard heavy substance 4 within twenty four hours of holding of the postmortem examination by him. 6. Thus, what appears from the evidence of P.W. 4 was that the smashing of the skull and the brain of the deceased was on account of the same being caused by some hard and heavy blunt substance. 7. In spite of the above opinion, which may indicate or probabilize the view that the deceased might have been run over by a moving train, the prosecution witnesses, like, P.Ws.6, 7 and 8 who were the cousin of the deceased and her two full brothers, were coming out to support the charges with P.W. 5, who happened to be his uncle. As regards the evidence of P.W. 5, in the light of his evidence in paragraphs 5 and 6 that he was told about the incident by his nephew P.W. 8, who does not support him that he had ever told any part of the occurrence to P.W. 5, his evidence gets not acceptable on account of the same being inadmissible. Besides, as regards statement of P.W. 5 on demand of dowry and torture of the lady on account of its not being fulfilled, his evidence in paragraph 6 indicates as if he had never visited the lady in matrimonial house, the court has great reservations to act upon such evidence. Similar is the case with Shambhu Yadav, the cousin of the deceased and the informant. In spite of having supported the fact that a demand of rupees fifty thousand was being made from the lady and the accused persons, not getting it, were torturing her, the evidence of P.W. 6 in paragraph 8 that he had never himself seen anyone assaulting the lady and in paragraph 12 that he had also never visited her matrimonial place and 5 further in paragraph 14 that no money was demanded in his presence and in absence of any statement by him that the deceased had ever narrated any part of the incident to him, the court again cannot act upon the evidence of P.W. 6. 8. P.W. 7 Umesh Yadav is the full brother of the deceased. He also supports the story, like, P.W. 8 that the lady was complaining that she was asked to bring rupees fifty thousand by the accused persons but the evidence is completely silent as regards any statement made either by the lady or by anyone who could be having authentic information in that behalf that the lady was being tortured or treated with cruelty, just prior to being killed for or in connection with dowry, the evidence of both witnesses P.Ws 7 and 8, appears not fulfilling the requirements of constituting some of the ingredients of the offence. Moreover, information about the death of his sister appears given to P.W. 7 by one Pappu but that Pappu has not been examined. Besides, he stated that when he came to Munger on receipt of the information, he could not meet the said Pappu. So far as P.W. 8, the informant is concerned, he does not even make a general statement that any demand was made during a particular period, say, within, two years or one year of the incident, rather, he states in paragraph 7 that he cannot say as to on what date or in which month a demand of rupees fifty thousand was made by the accused persons from the deceased. Likewise, he cannot even point out the date and month on or in which the deceased could have been assaulted by the accused 6 persons and, above all, no complaint or case was lodged with any authority in that behalf. 9. Besides, the evidence of witnesses was too general and non-specific as regards the period or time when the demand for money was placed before the deceased, the court finds a complete absence of evidence on ill treatment and cruelty least to talk of the same not being stated in proximity to the commission of the offence. The defence is not required to prove its case to the hilt. Even if it has succeeded in probabilizing, say, one fact out of five facts, which may have constituted this offence, after having failed miserably to probabilize four other facts, the very probability of existence of one fact is supposed to create a doubt in the veracity of the prosecution story and this is the reason that accused persons get acquitted. 10. Here is a case where not only the prosecution had failed in establishing the ingredients of the offence under section 304B IPC but also in establishing the commission of the offence under section 4 of the Dowry Prohibition Act. The probability of the defence version that the lady might have strayed away from the house and while moving wantonly on the railway track, she could have been overrun and killed, may not be ruled out. 11. Considering the facts of the case and the defence probability, I find merit in the present appeal and, accordingly, the same is allowed. The judgment of conviction and sentence passed against the appellants is hereby set aside. Appellant Sudama Devi is on bail. She shall be discharged from the liability of her bail bond. 7 Appellant Subhash Yadav is in jail. She shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 12th August, 2011, NAFR/Anil/