Criminal Appeal (SJ) No. 1040 of 2008 with Criminal Appeal (SJ) No. 83 of 2009 -------- Against the judgment and order of conviction and sentence dated 18.10.2008 and 21.10.2008 passed by Shri Anil Kumar Shrivastava, Additional Sessions Judge, FTC V, Buxar in S.T. No. 229 of 2007 and 254 of 2007. ------- Cr. Appeal (SJ) No. 1040 of 2008 Rukmini Devi, wife of Parmeshwar Pandey, resident of village and P.O. – Naya Bhojpur, P.S. – Dumraon, (Naya Bhojpur), District – Buxar …………….. Appellant Cr. Appeal (SJ) No. 83 of 2009 Umesh Pandey alias Munna Pandey, son of Parmeshwar Pandey, resident of village and P.O. – Naya Bhojpur, P.S. – Dumraon, (Naya Bhojpur), District – Buxar ……………. Appellant Versus The State of Bihar ……………… Respondent (in both the appeals) --------- For the Appellants : Sarvshri Om Prakash Pandey & Neeraj Kumar @ Sanidh, Advocates (Amicus Curiae) For the State : Sarvshri S.N. Prasad & Abhimanyu Sharma, APPs --------- P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The two appellants, one in the each of the two appeals, were tried together after being charged for committing an offence under section 304B IPC by Presiding Officer, Fast Track Court V, Buxar in two Sessions Trial Nos. 229 and 254 both of 2007 and by judgment dated 18.10.2007, both of them were found guilty of committing the said offence. After being heard under section 2 235 Cr.P.C., each of the two appellants was directed to suffer RI for ten years. The appellants have preferred two separate appeals for assailing their conviction and sentence passed upon them. 2. Some of the admitted facts are that appellant Umesh Pandey alias Munna Pandey was married in the year 2002 to the deceased Jyoti Kumari. It is also not disputed that she died on 21.4.2007 under circumstances not natural and the death had occurred in the very house of the two appellants within seven years of the marriage of the deceased. It was alleged by P.W. 1 Ashutosh Mishra, who happened to be the father of deceased Jyoti in his fardbeyan (Ext. 3) that he got an information through appellant Umesh Pandey alias Munna Pandey that his daughter was unwell and, as such, he should go and meet her. The informant stated that he came to the house of the appellants and found that she was already dead. He further found that the dead body was lying below the bed on which she used to sleep and both her hands were clenched whereas her mouth was half open and her eyes were dilated. 3. The informant stated that he sent a message to his family members to come and he further alleged that after being married, Jyoti used to live in the matrimonial house and P.W. 1 used to visit off and on. Whenever he used to come to her matrimonial home, she used to complain that the accused persons used to ill-treat and torture her and were demanding a cow as dowry. It was stated that she was also being threatened to be killed and he had intervened and had gone to the house of the appellants so as to persuading them not to ill treat her but, lastly, his daughter was killed after being strangulated. 3 4. On the basis of Ext. 3, the FIR (Ext.6) of the case was drawn up and the same was investigated into by P.W. 6 SI Anil Kumar Singh, who stated that he had himself picked up a rumour that the daughter in law of Parmeshwar Pandey had died and in order to verify the information he came to village Naya Bhojpur and found the dead body lying in the house of the appellants. P.W. 6 further stated that he recorded the fardbeyan of the informant P.W. 1 on 22.4.2007 at 7 A.M. and also held inquest and prepared the report in presence of P.Ws 7 and 10, namely, Birendra Kumar Pandey and Prem Prakash Pandey. Inquest report has been marked as Ext. 4. He thereafter inspected the place of occurrence and recorded the evidence of witnesses. 5. He sent the dead body for postmortem examination to the doctor P.W. 5, who found the following ante mortem injuries. A ligature mark below the thyroid cartilage horizontally placed starting from left side of the neck to right side anterior portion of neck. P.W. 5 found thyroid bone fractured and abrasion and echomosys around the ligature mark which was black in colour ¼ c.m. in breadth. P.W. 5 stated that the death had occurred due to asphyxia on account of strangulation. Thus, there was no doubt that the deceased Jyoti was murdered by being strangulated to death. 6. After collection of evidence and close of investigation, P.W. 6 submitted charge sheet against the accused persons and three of them were put on trial including the two appellants out of whom Bachni Kumari, who happens to be the sister of Umesh Pandey alias Munna Pandey and daughter of Rukmini Devi, was acquitted of the charge by the impugned judgment. 4 7. In support of the prosecution charge, twelve witnesses were examined, out of whom, P.W. 4 Lachhuman Pandey was declared hostile and P.Ws 6 and 10, as pointed out earlier, were witnesses to inquest. P.W. 8 Mannan Khan and P.W. 11 Tarkeshwar Pandey were witnesses to seizure of the rope and other articles whereas P.W. 9 Uttam Prasad Singh, a constable had produced the material exhibits during trial of the case. P.W. 12 Kedar Nath Lal was a witness of formal character, who had produced the original copy of the postmortem report as P.W. 5 had deposed in court on the basis of the carbon copy of the postmortem report, which was marked as Ext. 2. Thus, what appears is that only three witnesses have come to support the prosecution charges who were informant Ashutosh Mishra (P.W. 1), his father Bishnu Bhagwan Mishra (P.W. 2) and his cousin brother Mrityunjay Mishra (P.W.3). 8. It was contended by learned amicus curiae that it appears that earlier to the present fardbeyan (Ext.3), there was a report, which did not disclose commission of offence by any of the appellants and in connivance with the informant, the police destroyed that particular report to substitute the same with the present fardbeyan (Ext.3). In support of the contention, the learned counsel drew the attention of the court to certain circumstances, like, Mrityunjay Mishra, who was a witness to the recording of the fardbeyan, was not stating that he had signed the document though the document bears his signature and further it is stated by P.W. 1 in paragraph 4 that he went to the police all alone and gave his fardbeyan whereas the document shows that it bears the signature of P.W. 3 Mrityunjay Mishra. It was contended that may be that the two ingredients out of 5 four constituting the offence under section 304B IPC was established but the other two important ingredients, like, torture of the lady for or in connection with demand of dowry and that too just before her death have not been established. It was, as such, contended that the offence under section 304B IPC could not be said to be committed by the two appellants. In order to buttressing the submission, learned amicus curiae took me through the evidence of three witnesses and in that connection, it was contended that the informant was probably not making true statements in court and his own evidence indicated as if there was a cordial relationship between the parties and there could not be, as such, any reason for the appellants to cause the death of the deceased. 9. I have already extracted the evidence of P.W. 5, the doctor, who held postmortem examination on the dead body of Jyoti. The doctor was finding a ligature mark in the form of abrasion which was also bearing echomosys in width of ¼ cm right from the angle of left ear to that of the right ear. The evidence of the doctor does not indicate that the ligature was continuously present with disruption somewhere below the angle of mouth or just below the ears nor did he state that the ligature mark was completely circling the neck. The evidence of the I.O. as also the evidence of P.W. 1 who was the first person to reach the place of occurrence, indicates that in the room where the dead body was found lying, he also found a piece of plastic rope. Thus, what appears clearly established from the evidence of P.W. 5 was that the lady was definitely strangulated to death and it was a case of homicidal death of the deceased. 6 10. However, the charge against the appellant was that of under section 304 B IPC. While hearing the present pair of appeals, I went to the statement of accused persons recorded under section 313 Cr.P.C. and what struck me the most was that the questions which were put to the two appellants was also in respect of the facts and circumstances as if they were being tried only for the offence under section 304B IPC. As such, in the above background, it appears a complete case of inappropriate framing of charges and inappropriately putting the questions to the accused persons so as to reaching a just conclusion. This was the reason that the learned amicus curiae who was addressing his arguments before me was pointing out to me the different circumstances appearing from the evidence of P.W. 1, the informant and his father P.W. 2. It is true that P.W. 1 stated in paragraph 1 that after her marriage, the deceased went to her matrimonial house and lived there for a year and came back to his house when she complained of being tortured and ill treated. The reason was that the accused persons were asking her to bring a jersey cow, which was not being given by the informant. P.W. 1 further stated that the deceased lived in his house for about a year and went back to her matrimonial house but learning about the ill treatment and torture of the lady, he went to the house of the appellants and brought the lady back to his house. Appellant Umesh Pandey also accompanied his wife and came to reside in the house of the informant and there is no dispute in it that the deceased and appellant Umesh Pandey remained in the house of the informant for one and half years. It is admitted by witnesses that during that period, appellant Umesh Pandey was trained in some building works and when the informant was 7 sure after being assured by other family members of the appellant Umesh Pandey that no further ill treatment shall be meted out to the deceased, he allowed her to go. Some assurance was also held out by appellant Umesh Pandey. The informant admitted in paragraph 6 that so long as appellant Umesh Pandey and deceased was living in his house, there was no complain whatsoever from either side. It also appears from the evidence of P.W. 2 that he used to visit the house of the appellants and was offered proper courtesy as may appear from paragraphs 6 and 7 of the evidence of P.W. 2. It has been stated by P.W. 2 in paragraph 6 that the marriage of the acquitted accused had been settled and that the deceased and her husband remained in his house for other one and half years during which course his son (P.W. 1) had trained the appellant Umesh in certain vocation. Thereafter he visited the house of the appellants as may appear from paragraph 7 and used to see the deceased and Umesh Pandey but never stayed in their house on account of some customary prohibition as P.W. 2 was not to take anything in his house where daughter of the family was married but he used to be treated with respect and cordiality and he also used to offer certain cash as presents to appellant Umesh Pandey. Thus, if this was the relationship in spite of the departure of the deceased from the house of the informant, then the most important ingredient that lady was being ill treated just before her death appears not established. These two witnesses – P.Ws 1 and 2, were such persons who could have the special knowledge of the relationship which was existing between the appellants and themselves and who could be very competent in making statements on those aspects of the relationships. This is the reason that it was strenuously submitted 8 that one of the ingredients of the commission of the offence was not established and, as such, conviction of the appellants for the offence under section 304B IPC could not be sustained. This could be solitary reason on which I find that the judgment of conviction could not be sustained. 11. However, there were other circumstances also which create a doubt regarding the veracity of the evidence. I have noted that the deceased was killed and there could not be any doubt about that but when this Court is judging the judgment of conviction of the appellants and is scrutinizing the reasons in the light of the evidence then even if the death was homicidal, as may appear from the evidence of P.W. 5, it could not uphold the conviction of the appellant. P.W. 2, the grand father of the deceased appears stating further that the accused persons were demanding additional dowry in the form of a cow but he states only in paragraph 3 that he did not know about it personally and it was his son, i.e., P.W. 1, who had pointed out that particular fact to him. Thus, the evidence of demanding dowry also pales into doubt. It is true that P.W. 1 was stating in his fardbeyan as also in his evidence that a jersey cow was being demanded but that demand for dowry had resulted in the perpetration of torture or ill treatment upon the deceased just before her death appears not properly established. There is some evidence that some sort of torture was being heaped at the deceased but, there is no details as to how the informant and others should know about it and what was the mode of torture, which was being heaped upon her. This is the reason that the court has difficulty in accepting the evidence of the witnesses on the payment of dowry as well. 9 12. P.W. 3 appears not a witness on real facts of the case and he appears concealing some of the facts which have been admitted by P.W. 1. P.W. 3 was not even ready to accept that the deceased and appellant were residing in the house of P.W. 1 for one and half years. He was feigning ignorance in paragraph 7 of his evidence that he could not exactly say that the two had resided in the house of the informant. Moreover, he appears making out a third story by telling the court that the sister of the appellant Umesh Pandey, namely, Bachni Devi, who has been acquitted, was to be married and accused persons were asking the deceased to deliver her ornaments for giving the same to her. The deceased was not ready and she was killed. This was never the story of the prosecution. P.W. 3 appears a person who was making statement before the court on account of imagination and this is the reason that this court finds it very difficult to rely on his evidence. 13. On consideration of the evidence of witnesses, what I find is that there could not be any doubt that the deceased had been murdered but the trial court did not properly frame the charge nor did it properly put the questions during examination of accused persons under section 313 Cr.P.C. and if at this belated stage this court reverses the finding so as to convict the appellants for a different offence, this shall be highly prejudicial and that could not be done by the appellate court. However, the evidence which was available on the trial court record, did never justify the conviction of the two appellants for offence under section 304B IPC and, in that view of the matter, the two appeals have to be allowed. 10 14. Accordingly, the two appeals are allowed and the appellants are acquitted of the charge for which they were convicted. Appellant Umesh Pandey alias Munna Pandey is in custody. He shall be released forthwith if not wanted in any other case. Appellant Rukmini Devi is on bail. She is discharged from the liabilities of bail bonds. 15. Sarvshri Om Prakash Pandey and Neeraj Kumar alias Sanidh, learned amicus curiae have assisted this court immensely in each of the two appeals and, as such, they deserve one fee of argument each, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to them. (Dharnidhar Jha, J.) Patna High Court, The 24th October, 2011, NAFR/Anil/