Criminal Appeal (SJ) No. 974 of 2006 With Criminal Appeal (SJ) No. 204 of 2007 -------- Against the judgment and order of conviction and sentence dated 30.11.2006 passed by Shri Krishna Mohan Srivastava, Additional Sessions Judge, Fast Track Court No. 1, Patna in Sessions Trial No. 228 of 1996 / 13 of 2005. --------- Cr. Appeal (SJ) No. 974 of 2006 Mostt. Kamla Devi, wife of Late Sachchidanand Sah, resident of village and P.S. – Paliganj, District – Patna ……………. Appellant Cr. Appeal (SJ) No. 204 of 2007 Sanjay Kumar Gupta, son of Deo Narayan Prasad, resident of village and P.S. – Paliganj, District – Patna ……………. Appellant Versus The State of Bihar …………. Respondent (in both the appeals) ----------- For the Appellants : Sarvshri Ramakant Sharma, Sr. Advocate Santosh Pandey, Advocate 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. Ten accused persons were put on trial by framing charges under sections 302, 201 etc. IPC by the learned Additional Sessions Judge, XII, Patna in Sessions Trial No. 228 of 1996. Out of the ten accused, put on trial, accused Sachchidanand Sah died during the pendency of the appeal and as such proceedings as against him was 2 dropped by order dated 6.9.2005 passed by the trial judge, leaving on trial nine accused. While delivering the judgment on 30th November, 2006, the learned Presiding Officer, Fast Track court No. I, Patna, convicted the two appellants of the two appeals, namely, Mostt. Kamla Devi and Sanjay Kumar Gupta and acquitted the remaining seven accused of all charges. The present two appellants were convicted for the offences under sections 304B/34 and 498A/34 IPC and each of them was directed to suffer RI for seven years and three years respectively on the two counts with further direction that sentences were to run concurrently. The appellants have come up before this court through the two connected appeals to question the propriety and correctness of the findings as regards the conviction and sentence passed against them. 2. Undisputedly, the deceased Madhu, who was the daughter of Bhola Prasad Gupta, was married to appellant Sanjay Kumar Gupta on 26.4.1993. She was residing in the house of her husband. It is alleged by P.W. 1 Bhola Prasad Gupta in his written report (Ext. 2) that someone informed him in Patna that his daughter Madhu had been killed by being burnt by the accused persons. Learning about the incident, P.W. 1 went to the house of the appellants to find none present there. It was pointed out by the persons there, the informant claimed, that the accused persons had set the lady at fire and had killed her. The informant stated that the dead body was cremated by the accused persons without informing him though the distance between Paliganj and Patna was of two hours by road. 3 3. It was stated in the above connection that the accused persons including the two appellants had demanded money from the deceased earlier also besides demanding other articles, like, gas stove and Palang and not getting the demands fulfilled, the accused persons were mentally and physically torturing the deceased. On the basis of Ext. 2, FIR of the case was drawn up and investigation was undertaken. 4. The Investigating Officer of the case has not been examined, as such, there is no evidence before this court as to how was it proceeded with. But, it is evidently clear that ten accused persons were sent up for trial by submission of two charge sheets on two different dates and accordingly, they were put on trial with the result that the two appeals are before this Court on account of the two appellants being convicted and sentenced to terms indicated earlier. 5. The defence of the appellants was that the lady did not die unnatural death. It was suggested and pleaded by the appellants that in fact on account of some carelessness on her own part and accident, the lady was electrocuted and succumbed to injuries on that account. 6. During the course of trial, six witnesses were examined by the prosecution and five on behalf of the defence. P.W. 1 Bhola Prasad Gupta, the informant, supported his allegations by stating that just two days after the marriage, appellant Sanjay Kumar Gupta had come to his house to ask for a sum of rupees fifty thousand from him by stating that his parents were asking him to demand that amount of money from the informant. The informant stated that he did not have the capability to pay up but he withdrew some part of his General Provident Fund deposits to 4 the tune of rupees sixteen thousand and made part payment of the demanded amount. It was stated that ill treatment and torture of the deceased went on unabated on the part of the accused persons and lastly, the lady was killed and her dead body was cremated. Similar was the evidence of P.W. 3 Bhagwan Das who was a very close relative of the informant as also of P.W. 4 Deepak Kumar, son of the informant and Shanti Devi, the wife of the informant (P.W. 5). P.W. 2 Sheo Datta Sah did not support the informant and, as such, he was declared hostile. 7. As regards evidence of P.Ws 2 and 4, the court has great reservations in acting upon their evidence for the reason that on account of their own evidence in cross-examination by the defence to their previous statements and suggesting both the witnesses that they had not made any such statement before the police, least to talk of the statements which were made by them during their deposition in court. P.W. 3 has admitted in paragraph 12 of his deposition that he never made any statement to the Investigating Officer and further stated in paragraph 13 that the informant had come to him after two months of the occurrence to take him to the court of Judicial Magistrate for getting his statement recorded under section 164 Cr. P.C. Thus, the statement recorded by a magistrate under section 164 Cr.P.C. without any requisition in that behalf by the Investigating officer could not be said to be a statement in investigation as the statement was recorded at the behest of some private person, thus, rendering the evidence of P.W. 3 quite inadmissible. Likewise, P.W. 4 Deepak Kumar, who has not categorically stated that he had not made any statement before the police but his cross 5 examination in paragraph 7 and onwards indicates the probability that he was never questioned by the police and had been taken to the magistrate by his father for getting a statement from P.W. 4 recorded under section 164 Cr.P.C. On the same reasons, I have not accepted the statement of P.W. 3 and I refuse to treat the evidence of P.W. 4 as admissible. His evidence is equally inadmissible like P.W. 3. P.W. 5 Smt. Shanti Devi, who happened to be the mother of the deceased and wife of informant though supported her husband P.W. 1 but her attention was drawn extensively in paragraph 9 of her cross examination when she was suggested that the statements which she had made during examination in chief were not made ever before any police officer and further that she had made those statements for the first time after being tutored to do it. Here is the place where non-examination of the Investigating Officer has to be judged. Evidence of Investigating Officer appears necessary under the above circumstances as he could have been the only witness to state whether P.Ws 3 and 4 as also P.W. 5 had made any statement before him and if they had, what were their respective statements. Non examination of the Investigating Officer and mere tendering of the case diary through P.W. 6 appears of greater importance as regards plea of prejudice taken by the appellants. 8. On account of the evidence of P.Ws 3, 4 and 5 being discarded for the reasons as I have just noticed, the court had the evidence of only one witness and that was of P.W. 1, the informant of the case. He had made out a very specific case as regards the demand for additional dowry and payment thereof. He has stated that just two days 6 after the marriage of the deceased to Sanjay Kumar Gupta and the departure of the deceased to her matrimonial house, appellant Sanjay Kumar Gupta had come to his house to demand rupees fifty thousand from him as he was asked to make the demand for money by his parents. P.W. 1 stated that after being faced with such a situation, he applied for the withdrawal of an advance from his General Provident Fund deposits and borrowed rupees sixteen thousand out of the total deposits made by him and paid up that amount to appellant Sanjay. It would have been a valid acceptable story had the document showing sanction of any amount out of the General Provident Fund deposits made by P.W. 1 produced before the court in support of the above story. It is all bald and oral statement in spite of the existence of documentary evidence in that behalf which could not be preferred or accepted in absence of the documents which could have been very much within the reach of the informant. The non production of the document, i.e., orders sanctioning any advance out of General Provident Fund deposits of the informant had quite some bearing on the story as told by the informant and this court has all the reasons to doubt the very veracity of that evidence. 9. If the demand for dowry is doubted then the most important ingredient regarding the constitution of offence under section 304B IPC or one of the ingredients of torturing a wife on account of demanding some dowry vanishes making the whole prosecution story doubtful and this was the reason that I simply refused to act upon the solitary evidence of P.W. 1 Bhola Prasad Gupta. 7 10. The case appears not proved, entitling the two appellants to an order of acquittal. In the result, the two appeals succeed. The order of conviction and sentence passed against the two appellants is set aside. They are acquitted of the charges. Appellant Most. Kamla Devi is on bail. She shall stand discharged from the liabilities of her bail bond. Appellant Sanjay Kumar Gupta appears to be in custody. If he is still there, he shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 25th July, 2011, NAFR/Anil/