Criminal Appeal (SJ) No.755 of 2006 Against the judgment of conviction dated 23.08.2006 and order of sentence dated 24.08.2006 passed by Additional Sessions Judge, Fast Track Court No.II, Jamui in Sessions Trial No.209 of 2002 arising out of Jhajha P.S.Case No.129 of 2000. 1. LUXMI SAH & 2. GOPAL SAH .... .... Appellants Versus State Of Bihar.... .... Respondent. ------ For the Appellants: S/Sri Mrityunjay Kumar & Sri Umesh Prasad, Advocates. For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal has been preferred by two appellants, namely, Luxmi Sah and Gopal Sah to question the propriety and correctness of judgment of conviction and order of sentence passed upon them by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.II, Jamui in Sessions Trial No.209 of 2002 on 23.08.2006. The appellants were found guilty of committing offences under Sections 498A, 304B and 201 IPC as also under Sections 3 and 4 of the Dowry Prohibition Act and after being heard on 2 sentence each of them was directed to suffer rigorous imprisonment for three years each under Sections 498A and 201 IPC. The appellants were directed to suffer further period of rigorous imprisonment for ten years for their conviction under Section 304B IPC. As regards their conviction under Sections 3 and 4 of the Dowry Prohibition Act each of them was directed to suffer rigorous imprisonment for five years as also to pay a fine of Rs.15,000/- each and in case of default in making the payment of the fine each of them was to suffer rigorous imprisonment for six more months. The substantive sentences imposed against the appellants were directed to run concurrently. 2. Initially charges under the aforesaid Sections were framed against the two appellants as well as against Malti Devi and Pawan Sah but the learned trial Judge was of the opinion that there was no evidence against Malti Devi and Pawan Sah and as such they were acquitted of all the charges. 3. The occurrence related to 20.10.2000 having taken place at about 5 P.M. It is revealed by the written report(Ext-1) 3 filed by Ramdeo Sah(P.W.2) the father of Kunti Devi, the deceased of the case that he was informed by Sheo Narain Sao(P.W.1) that his daughter had been murdered. Receiving the information of the incident, the informant came to the village of the appellants to find that the house was locked and none was present there. He made enquires from the villagers and was told that his daughter had been murdered and her dead body cremated on 20.10.2000. 4. The informant alleged that the lady after being married to appellant Gopal Sah was residing with him in his house after the Bidai ceremony which was performed after three months of the marriage. It was stated that at the time of Bidai appellant Gopal Sah and his father was demanding a colour television and electric fan and Rs.4,000/- in cash for purchasing a steel almirah of Godrej make and were not ready to take Kunti Devi with them in Bidai. The informant stated that he pleaded his inability in meeting the demands of the accused persons and promised that as soon as he was free from the liabilities which he had incurred on account of getting Kunti Devi married he will be 4 meeting the demands. That infuriated the accused persons more who refused to perform the Bidai ceremony as a result of which the informant came back from the house of the appellants and after selling his cow he arranged Rs.2,000/- and paid the same to appellant Luxmi Sah in presence of appellant Gopal Sah and pleaded with them that the amount was maximum he could arrange for and other part of the demand was beyond his means and as such the Bidai ceremony should be performed. It was stated by P.W.2 that after some arguments and persuasions the accused persons took away Kunti Devi some times in the month of May, 2000 and the deceased started residing there. He received another information about another demand that the accused persons were asking the lady to bring a motorcycle, else, she will not be allowed to remain in the matrimonial house. The same demand was also reiterated by the accused persons to P.W.2 and it appears that the lady who had come back to her parents’ house was taken back again after much persuasion by the informant. It was stated by the informant that his daughter stated at the time of Durgapuja 5 when he had opportunity of meeting her that they were assaulting her and had also taken away her ornament as appellant Gopal Sah had fallen into bad company and bad habit of drinking liquor. The informant complained about the behaviour of appellant Gopal Sah to his father appellant Luxmi Sah who told him that if he could arrange a motorcycle, things would be moving smoothly and specially when the lady was carrying a pregnancy in her womb. Lastly on 21.10.2000, he learnt about the incident and, as such, filed the report. 5. The defence of the appellants was of their innocence and false implication in the case. They further pleaded as may appear from the evidence of different witnesses that Kunti Devi died natural death during her pregnancy in spite of the best treatment being made available to her. 6. The learned trial Judge while convicting the appellants recorded that the whole order of conviction was passed on the solitary testimony of P.W.2 Ramdeo Sah and went on to analyze the evidence of P.W.2 to hold that the defence witnesses were near relatives of the appellants and were making 6 false statements and as such the prosecution charges were proved to the hilt. 7. I was taken through the evidence of P.W.2 and also through the evidence of other witnesses. P.W.2, the informant has stated that P.W.1, his nephew, informed him that his daughter had been murdered and, thereafter, he came to the village of the appellants to know from the villagers that his daughter had been murdered. 8. On perusal of the evidence of P.W.1 Sheo Narain Sao, who is also undeniable the nephew of P.W.2, I find that he was not supporting the evidence of P.W.2 that he informed P.W.2 that his daughter Kunti Devi had been murdered. While P.W.2, the father of the deceased was deposing to facts showing the payments of Rs.2,000/- consequent upon the demand by the accused persons of a colour television, a Godrej-almirah and an electric fan and Rs.4,000/- in cash, the same facts were not being supported by any one, even by any family member of P.W.2, nor any witness was produced to say that he had seen P.W.2 selling his cow for Rs.2,000/- for paying the amount to appellants or that any particular 7 person had purchased the cow at the price of Rs.2,000/- from P.W.2. Except the Bold statement of the informant regarding the demand and payment of certain money, no support is coming from any witness even by P.W.1., who was also not declared hostile by the prosecution. I find from the evidence of P.W.1 who happens to be the nephew of P.W.2, that the relationship between the deceased and his family members, i.e., the appellants was quite cordial. P.W.1 has not stated that any demand was made in his presence or within his knowledge by the appellants for any article or cash. In that view of the matter, the evidence of P.W.2 in spite of not being corroborated by further evidence of any witness appears going contrary to the evidence of P.W.1, his own nephew, who was equally a competent prosecution witness. On the one hand, the informant was setting up a case of torture of the lady on account of non-fulfilment of the demand of certain articles or cash, P.W.1 on the other hand, was negating or was nullifying that particular evidence of P.W.2 when he was stating that the relationship between the deceased and the accused persons was quite 8 cordial. If this could be the evidence and if the informant under the above background has not been supported by some other witnesses, then it could not be a case in which the learned trial Judge should have gone to hold that charges were proved against the appellants, specially, when he was recording the acquittal of two other witnesses in lack of evidence. In my considered view merely because a lady was married to a man, the mere allegations which could be rendered doubtful by evidence of other witnesses could not constitute sufficient facts for raising a statutory presumption against the accused that it could be he who could have indulged in the commission of the offence, specially, when it was not denied by the prosecution that the lady was carrying a pregnancy and there might be a probability that on account of any complication arising out of that unusual situation which is experienced by a lady, he met her end. 9. After going through the evidence available on the record, the court finds that the charges under all Sections on which the appellants have been held guilty were not 9 proved to the hilt and there was quite some room to doubt the veracity of the prosecution case, the benefit of which ought to be accredited to the two appellants. 10. In the result, the appeal succeeds. The two appellants Luxmi Sah and Gopal Sah are acquitted by setting aside the impugned judgment and order of conviction. Appellant Luxmi Sah is on bail. He shall stand discharged from the liabilities of his bond. Appellant Gopal Sah is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 13th day of July, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)