Criminal Appeal (SJ) No.16 of 1994 Against the judgment of conviction and order of sentence dated 13.01.1994 passed by District & Sessions Judge, Nalanda, Biharsharif in Sessions Trial No.339 of 1990 1. KESHWAR MAHTO, 2. SURENDRA PRASAD, 3. BIRENDRA MAHTO & 4. CHAMELI DEVI…………………………………… Appellants Versus STATE OF BIHAR………………… Respondent For the appellants:-Sri Janardan Singh, Advocate For the State:- Sri Ajay Mishra,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against the judgment of conviction and order of sentence dated 13.01.1994 passed by the learned Sessions Judge, Nalanda, Biharsharif by which all the appellants were found guilty of committing offences under Sections 304B IPC and 498A IPC and each of the appellants was directed to suffer rigorous imprisonment for eight years and three years respectively on the above two counts. 2. Undisputedly, Sujanti Devi the deceased was married to appellant Surendra Prasad two years prior to the occurrence. It was stated in the FIR (Ext-2) that at the time of the marriage the accused persons 2 demanded a television and Rs.10,000/- in cash but the informant Ramdeo Prasad(P.W.5) showed his inability in fulfilling the demand. The deceased was married and went to her Sasural where she was tortured and illtreated on account of non-fulfilment of the demand aforesaid by the appellants. 3. It was stated by P.W.5 in Ext-2 that on 12.6.1989 he was informed through a man by the deceased that she was being badly illtreated and harassed upon which he came with the same man to the house of the appellants and requested the appellants not to torture her and further stated that he was not in a position to give anything further and came back home. 4. The informant further stated that on 16.8.1989 at about 8 A.M., he was informed by Tenger Mahto(not examined) and Bakhauri Mahto(not examined) that his daughter had been strangulated to death and the dead body had been cremated in Fatuha. Receiving the above information, he came to Sipara, but could not find his daughter and on enquiry from the villagers he knew that his daughter had been strangulated to death and had been 3 cremated in Fatuha. He came to the police station and lodged the FIR Ext-2. 5. The I.O. has not been examined and the FIR and the case diary have been tendered in evidence by examining a formal witness P.W.6 Jamuna Singh. Thus, the court does not know as to what were the objective findings of the I.O. on investigation of the case. 6. The defence of the appellants was that the allegations were false and fabricated and in fact Sujanti Devi developed some ailment and was taken to D.W.1, Dr. Lakshmi Narayan Mahto at Hilsa who adviced to taken her to Patna and while she was being shifted to Patna she died in the way. Ext-A is the prescription of D.W.1. 7. In support of the charges the prosecution examined six witnesses out of whom P.Ws.1 and 6 Krishna Prasad and Jamuna Singh respectively supported the allegations in their examination-in-chief. P.W.1 Krishna Prasad in fact stated that he heard cries coming out of the house of P.W.5 Ramdeo Prasad and on coming to his house learnt that his daughter had been killed and her dead 4 body had been cremated and, thereafter, he along with P.W.5 Ramdeo Prasad, Shyamnandan Prasad(not examined) and Sachchidanand Prasad(not examined)came to Sipara where people informed them that the lady had been strangulated to death and her dead body had been cremated. The above facts are also stated by the informant, but as regards the persons accompanying the informant(P.W.5) he does not name P.W.1 Krishna Prasad as one of the persons who had accompanied P.W.5 Ramdeo Prasad to Sipara. Thus, the claim of P.W.5 that he was accompanying P.W.5 pales into doubt and, as such, his claim of coming to know from the villagers about the murder of the deceased also could not be accepted. Besides, it is a hearsay evidence without naming the person from who the above information was gathered. Even if the name had come, that person has not been examined. 8. On consideration of the evidence of P.W.5 Ramdeo Prasad, the informant of the case I find that he had stated the same facts and further stated that he along with three other persons, namely, Sachchidand, Mahendra and Shyamnandan, all of whom have not been 5 examined, went to Sipara and went to Kusheshwar who pointed out to him that his daughter had died of diarrhoea. When he was cross-examined on other facts he was stating to the court in paragraph-16 that he met many persons in the village of the accused persons and all of them stated to him that his daughter had died of diarrhoea and those persons included one Ramashanker, the Mukhiya of the Panchayat. P.W.5 has stated further in paragraph-17 that he suspected the appellants as the murders of his daughter and as such he filed a case. He was not in normal state of his mind and after going to the police station he sat at a different place where the FIR was dictated by P.W.1 Krishna Prasad. Thus, from the evidence of P.w.5 what appears is that he was neither dictating the FIR nor he was inclined to lodge the report and further that he was merely suspecting the appellants to have committed the offence. Thus, evidence of P.W.5 in cross-examination renders the other evidence given by the same witness doubtful. Besides, the two persons Tenger Mahto and Bakhauri Mahto, who as per P.W.5, had informed him about his daughter 6 being killed were not examined, nor the man who had brought the message of his daughter on 12.6.1989 that the deceased was being illtreated and tortured and harassed by the accused persons has also not been examined. 9. The I.O. was not examined nor any evidence indicating the demand of dowry and torture of the lady and ultimately her death under circumstances not natural appears not established by evidence. The court finds that P.Ws.2, 3 and 4 who were produced and examined by the prosecution were stating to the court that Sujanti Devi had suffered from diarrhoea and she was taken to D.W.1 who treated her and, ultimately, she died. The above are the witnesses produced by the prosecution. None of them was declared hostile and suggested that they were not stating the truth. As such, the prosecution appears adducing two class of evidence-one a weak evidence in support of the story and other a very strong evidence in support of the defence. 10. After considering the evidence on record of witnesses, I find that the charges had not been proved to the hilt. It 7 was a case which was not proved and in that view the appellants ought not have been convicted of the offences for which they were sentenced. 11. In the result, the appeal succeeds. The judgment of conviction and order of sentence passed against each of the appellants is hereby set aside. The appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Date, the 8th of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)