CRIMINAL APPEAL No.283 OF 2004 (DB) Against the judgment of conviction and order of sentence dated 31st March, 2004 passed in Sessions Trial No. 210 of 1989/230 of 2001 by Sri Kishori Ram, Additional Sessions Judge, F.T.C. No. I, Nalanda. ******* 1. SADHU YADAV SON OF RAMJI YADAV 2. GANAURI YADAV @ RAM RATAN YADAV SON OF RAMJI YADAV BOTH RESIDENT OF VILLAGE- SAIDPUR, P.S.- SILAO, DISTRICT- NALANDA ……………………………. ………….APPELLANTS Versus STATE OF BIHAR …………………………………….RESPONDENT ************ For the Appellants :- Mr. Rajendra Prasad, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Ritesh Kumar, Advocate For the State :- Mr. Ashwini Kumar Sinha, APP ******************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The appellants named above have preferred this appeal against the judgment of conviction and order of sentence dated 31st March, 2004 passed in Sessions Trial 210 of 1989/230 of 2001 by the learned Additional Sessions Judge, F.T.C. No. I, Nalanda whereby the appellants have been convicted for the offences under Sections 302/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. The prosecution version relates to a death occurring 2 at about 2.P.M. in the night of 7/8th November, 1988 and on 8.11.1988 at 12.10 PM fard-beyan was given that on the preceding day at 7 P.M. the informant Saudi Das and his Nephew Krishan Prasad had gone to the matrimonial house of the victim Urmila Devi for informant’s daughter’s send off. When a request was made to the accused persons for sending her to house then it was denied and the informant and his nephew were told to take rest. They slept and at about 2.PM in the night, the informant wake up on hearing the sound of crying. Then he suspected that his daughter was being thrashed inside the house. Thereafter, the informant roused up his nephew and went to the door of Sadhu Yadav. The door was found closed within which his daughter was crying for rescue. The accused Sadhu Yadav and Ramjee Yadav were telling that she would not be left alive. The cry silenced then the accused persons came out. The informant saw these appellants and others, namely, Ramjee Yadav, Satyendra Yadav, Mahendra Yadav were coming out from the room. All the accused persons threatened them for not disclosing the matter any where. On alarm being raised, the villagers Naresh Yadav (not examined), Awadhesh Prasad (PW 5), Brajnandan Yadav (PW 4), and others came. The accused persons fled away. The victim was lying dead on the ground in the courtyard. Allegation in the FIR was that the accused persons were frequently beating Urmila Devi so that she can 3 pressurize her parents for getting a piece of land executed in favour of the accused persons. It was also alleged that the accused persons had administered some intoxicants for the purpose of killing. The information resulted into registration of Silao P.S. Case No. 297 of 1988 dated 8.11.1988. The case was registered under Sections 302/34 of the Indian Penal Code against the appellants. The police investigated into the occurrence and submitted chargesheet. On the basis of chargesheet cognizance was taken. The case was committed to the court of Sessions where the charges were explained to the appellants to which they pleaded not guilty and claimed to be tried. The trial Court, after considering the entire evidences available on the record and taking into consideration to the other facts of the case, found the appellants guilty and sentenced them, as stated above. Now it has to be seen here whether the prosecution was able to prove its charges beyond all reasonable doubts against the appellants or not. In order to prove the case, the prosecution has examined altogether 8 witnesses. They are Bankey Bihari Prasad (PW 1), Rajendra Prasad (PW 2), Binod Kumar (PW 3), BrijnandanPrasad (PW4), Awadhesh Prasad (PW 5), Ram Dulari Devi (PW 6), Radhey Krishna Prasad PW 7) and Investigating officer Rameshwar Prasad. The informant of the 4 case has not been examined. Till examination of the last witness i.e. PW 7, informant’s presence in the court has been noted in paragraph 2 of the deposition of PW 7 but in the judgment it has been noted that the informant died during trial. PWs 1 to 5 have not supported any part of the allegation and all of them have been declared hostile. PWs 4 and 5 are named witnesses of the FIR. PW 6 is the mother of the deceased who came to know later on about the occurrence. In opening paragraph of her evidence, she has stated that at the time of occurrence she was in her village and not in the village of her daughter. She came to know through her husband and nephew (PW 7) about the occurrence. One day prior to the occurrence her husband and nephew had been to the house of her daughter for bringing her. She was not brought. She was informed that she has been done away by the accused persons. After giving this information the informant and her nephew went to the police station for giving information but this witness is hearsay so her evidence is of no help for the prosecution. Only material witness of the case is PW 7 Radhey Krishna Prasad. He has stated that Urmila Devi was his cousin sister. He has further stated that in the evening of 7th November, 1988 he had gone along with his uncle to bring back Urmila Devi. Urmila Devi was married with Sadhu 5 Yadav. He reached in her village in the evening and tried to persuade them to let Urmila Devi go to her mother’s house but the accused persons refused to let her go. This witness has stayed along with his uncle in the night. At about 2.AM in the night, he was roused by his uncle. He heard the cry of Urmila, thereafter, he went near the room from where the cry was heard. Urmila was shouting for help but Shadhu Yadav and Ramji Yadav were telling that she would not be allowed to live and soon thereafter, her cry was silenced. This witness has witnessed that when the door was opened, Ramji Yadav, Sadhu yadav, Gauri Yadav, Satyendra and Mahendra Yadav came out of the room. They threatened against making any voice and escaped. The informant and Awadhesh Yadav (PW 5), Naresh Yadav (not examined), Brijnandan yadav (PW 4) and others went inside the room and found Urmila Devi dead and also found red colour medicine bottle there. Urmila was brought outside from her room. On the next day at 10 AM this witness went to the police station and informed about the occurrence. In the police station fard beyan (Ext.1) of his uncle was recorded. The motive given by this witness is that his uncle was issuless and the accused persons were compelling the victim so that she may persuade her father to gift the land. Prior to the occurrence, Urmila was assaulted for which a case was lodged by her. In cross-examination, this witness has not been able to explain as to who was the 6 accused of the case lodged with regard to assault made on Urmila. Learned counsel for the appellant submitted that only admissible evidence which could have been gathered against the appellant is that they were seen coming out from the room and it has been argued that the statement of this solitary witness has not been corroborated in any manner. There is nothing on the record to show that the informant was alive or died during trial and there is no explanation at all as to why the informant was not examined by the prosecution. The evidence which is available with regard to the informant’s availability is of PW 7. Though his attention was drawn towards the fact that the informant was present in the Court, thereafter, the Court had asked the informant to go out from the Court Room. Till the examination of PW 7, the informant’s presence is on the record but from the judgment, it appears that the informant is already dead. So the fact remains that only PW 7 to some extent supported the prosecution case of assault. The important factor in the present case is non- examination of the doctor and non-bringing of the post mortem report on the record. There is no explanation at all as to why the doctor was not examined. Without examination of the doctor, manner of death cannot be proved. The present case suffers from that vital lacunae and non-examination of 7 doctor has left the prosecution version in lurch and this lacunae has not been fulfilled at all. The version of the prosecution was that the victim was beaten prior to her death or some poisonous substance was administered to her, then it was the duty of the prosecution to prove it through cogent and reliable evidence that the death was on account of either thrashing or on account of administration of poisonous substance. In view of the facts aforesaid, it is apparent that the prosecution has not been able to prove the manner of death as was alleged. Not only that, even the records of death has also not been brought on record. With regard to motive, it has been submitted that there was no motive at all to cause death because the accused persons would have get the property only if the victim was alive and as soon as the victim died then all the rights to hold her property through her parents was extinguished. It has also been submitted that it has come in evidence that father of the victim was already blessed with two sons and at the existing time the accused have got no inherent right to hold the property because the informant’s sons were already alive. So, the submission that motive of the killing was to fetch the property of in-laws of appellant Sadhu Yadav has also not been established. There is force in the submission of the learned counsel for the appellant that there was not motive at all to 8 cause death in view of the evidence that the deceased was already having two brothers. In view of the aforesaid discussions, we are of the view that the prosecution has not been able to prove the charges against the appellants. Accordingly, the judgment of conviction and order of sentenced against the appellants as stated above is set aside and this appeal is allowed. Appellant no. 1 Sadhu Yadav is in custody, he is directed to be released forthwith if not wanted in any other case and the appellant no. 2 Ganauri Yadav @ Ram Ratan Yadav is on bail, he is discharged form the liabilities of his bail bonds. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 19th July, 2010 Avin/N.A.F.R.