Criminal Appeal (S.J.) No. 324 of 1997 (Appeal against the Judgment and Order dated 16.9.1997 passed by the 9th Additional Sessions Judge, Ara, in Sessions Trial No. 252 of 1996.) ------------ BHAROSHA CHAUDHARY @ SUDARSHAN CHAUDHARY, SON OF RAM KAILASH CHAUDHARY, RESIDENT OF VILLAGE ECHARI, P.S. JAGDISHUR, (AYAR), DISTRICT BHOJPUR AT ARRAH. ------- APPELLANT. Versus THE STATE OF BIHAR ------- RESPONDENT. -------- For the Appellant : Mr. Ram Chandra Singh, Adv. For the State : Mr. J.K. Singh, A.P.P. -------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Section 364 and 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act and sentenced to rigorous imprisonment for ten years and six months and a fine of Rs. 5,000/- in default of which three months respectively by the 9th Additional Sessions Judge, Ara, by a Judgment dated 16.9.1997 passed in Sessions Trial No. 252 of 1996. 2. The case of the prosecution according to the PW-5 Baleshwar Singh is that his sister Indrasani Devi was married to the petitioner in the year 1988 after which she went to her Sasural and stayed for one and half months and then came back to her Parent’s house. She stated that her in-laws used to abuse and assault her for ends of dowry. However, she was persuaded to go to her in-laws house in the year 1993. A little later when the Informant went to the house of the Appellants, they refused to allow him to meet her. On 1.3.1994, when he went to his sister’s house to bring her back, he learnt from some female folk of the Patna High Court CR. APP (SJ) No.324 of 1997 dt.19-07-2011 2 village that his sister had been killed and her dead body had been disposed of by her in-laws. At his, a case was instituted under Sections 304(B) and 201/34 of the Indian Penal Code and Sections ¾ of Dowry Prohibition Act and after investigation, the charge sheet was submitted under Section 364 of the Indian Penal Code and the Appellant was also charged under Sections 364 of the Indian Penal Code along with Sections 498A of the Indian Penal Code and Sections ¾ of Dowry Prohibition Act. 3. During trial, the prosecution examined six witnesses. PW-1 Phulchand Yadav stated that he was a co-villager of the Informant and that Appellant had been married with the daughter of Budhu Chaudhary in the year 1982 and the Appellant’s wife had started living with him thereafter. Subsequently, the Appellant had gone to Ghaziabad along with his wife where he worked in a Biscuit Factory. Five months later, he returned alone, and on enquiry about his wife, the witness was informed that the wife had run away some place and many efforts had been made to trace her out, but to no avail. 4. PW-2 Shivanand Dubey is a formal witness who has merely proved the First Information Report as Exhibit-1. PW-3 Praphakar Pandey is also a formal witness who has proved some formal documents. PW-4 Alok Kumar Singh has proved the recovery memo which was an inland letter allegedly written by the Appellant to his father-in-law Budhu Singh which was marked as Exhibit “X”. Since Budhu Singh, the father-in-law of the Appellant, was not examined, it is not legally admissible. The Trial Court did not place any reliance on the letter since the village of addressee had been scored out as also because the address to the father-in-law was not as “Babuji” but as “Bhaiji” which was suspicious and made it unreliable. Patna High Court CR. APP (SJ) No.324 of 1997 dt.19-07-2011 3 5. PW-5 Baleshwar Singh is the brother of the wife of the Appellant and also Informant of the present case. He stated that the marriage had taken place in the year 1988 and after one and half months of the marriage, she was driven out by her in-laws after which she started living with the Informant. At that point in time, Indrasan Devi, had told the Informant that she was deprived of food and the Appellant used to variously assault her. Later, he had gone to the house of the Appellant, but he along with his family members demanded a wrist watch and a buffalo for which they also wrote a letter. In 1993 his sister was taken by the in-laws whereafter, she left with her husband for Ghaziabad. On 30.3.1994, when he reached the village of the Appellant to get his sister back, he was told by some village women that his sister had been murdered by her in-laws. After March, 1994, the sister had not been seen alive nor has her last rites had been done. A suggestion was given to him that his sister had run away from the house of the Appellant from Ghaziabad but he denied the same. PW-6 Kirpa Shankar Pandey is also a formal witness and stood the case diary as Exhibit-6. 6. On behalf of the defence, one witness was examined who was Shiv Prasad Singh who proved an application having been given by the Appellant to the Officer-in-Charge, Ghaziabad. When the Appellant was questioned under Section 313 Cr. P.C., he stated categorically that his wife had run away in his absence for which he had also given information to the Kotwali Police, at Ghaziabad. 7. On going through the evidence of the witnesses, it emerges that the Appellant had been married to one Indrasan Devi, sister of the Informant and she had lived with the husband in the year 1993 after which she had not seen alive. From this vague allegation, it is difficult to conclude that the Appellant had taken away his wife to Ghaziabad with the intention of committing her murder and, therefore, in Patna High Court CR. APP (SJ) No.324 of 1997 dt.19-07-2011 4 my view the ingredient of 364 of the Indian Penal Code is completely missing. As for the allegation that the Appellant and his family used to assault the informant’s sister, the said allegation was of the year 1988 whereafter, she again went to her in-laws house in the year 1993 after her second marriage (Duragaman) but no allegation that she had been tortured thereafter. The only allegation is that after Bidai, she was taken to Ghaziabad where her husband (present Appellant) was working. 8. In view of complete lack of evidence against the Appellant his conviction under Sections 364 and 498A of the Indian Penal Code is set aside. 9. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellant in Sessions Trial No. 252 of 1996 by the 9th Additional Sessions Judge, Ara, is hereby set aside. 10. The Appellant is discharged from the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 19th July, 2011. NAFR/S.ALI.