IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.623 of 2009 ========================================================== Ramchandra Sharma S/O Late Jhapas Sharma resident of village-Sharma Tola, P.S. Gobindganj, Distt. East Champaran .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant/s : Mr. Ajay Mishra- Amicus Curaie For the Respondent/s: Mr. D. K. Sinha- A.P.P. ========================================================== PRESENT (HONOURABLE MR. JUSTICE MANDHATA SINGH) JUDGMENT Mandhata Singh, J. This appeal is directed against the judgment and order dated 31.7.2009 passed by Sri Kanta Prasad, learned Addl. Sessions Judge, Fast Track Court-1, Motihari in Sessions Case No.611 of 1996 arising out of Govindganj P. S. Case No.47 of 1996, G.R. No.516 of 1996 whereby he has convicted the appellant under Section 304B and 201 of the I.P.C., sentenced to undergo R.I. for 10 years and three years respectively and to run both the sentences concurrently. Heard learned counsel for the appellant Mr.Ajay Mishra, Amicus Curiae and learned counsel for the State Mr. D. K. Sinha, A.P.P. Fard-bayan of PW-4 has been made basis for F.I.R. which in short is that informant’s daughter was married with this appellant in the month of February, 1992 according to Hindu rites and rituals. After the marriage, this appellant, his father Jhapas Sharma, mother Urmila Devi, elder brother Shiv Shankar Sharma and brothers Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 2 of husand’s father Megha Sharma and Shambhu Sharma started to demand Rs.10,000/- (ten thousand) cash, colour television, table fan, watch etc. Assurance was given by the informant to fulfill the demand on becoming of circumstance favourable, but they continued to abuse and torture. She was pregnant of six months, coming to know that his daughter was ousted from the house after assault, informant took her to his house. On request and assurance not to torture, accused persons were allowed to take her to matrimonial home, but again they started to demand and ultimately killed her after throttling and disappeared of the dead body after burning the same. This much was informed by Sanjeet Sharma that on noise, he had gone her matrimonial home, watched the incident and opposed also. After concluding the trial, same is ended in conviction and sentence, validity of which has been questioned through filing this appeal. In all, six witnesses are examined in the case, they are Bhikha Thakur PW-1, Sanjeet Sharma PW-2, Krishna Kumar Sharma PW-3, Kailash Sharma PW-4 father of the deceased, Brij Mohan Sharma PW-5 brother of the deceased, Prabhu Singh, Chaukidar PW- 6. PW-1 is a formal witness has proved the execution of Exhibit-1 F.I.R., PW-2 states to know nothing about the incident. In cross-examination also nothing has appeared to believe or disbelieve the prosecution case. PW-3 states about marriage of the deceased with this appellant in the year 1992 and quarrel of this appellant with his wife for demand of dowry. Deceased Fulo Rani came to her Maika Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 3 then on request of this appellant, she came to matrimonial home thereafter was killed, but he is unable to state the name of person who killed her. Sanjeet Sharma informed about killing of Fulo Rani deceased. His further statement is that he along with four others came to deceased in laws’ house, but none was present there and villagers told about death of Fulo Rani then matter was informed to Gobindganj Police Station. He along with Darogaji and others came to Sharma Tola village of the appellant. Sanjeet Sharma told about remaining of dead body in a pit, near the village, part of dead body was found without hand, leg and head. This much of the statement shall be discussed later along with statement of rest of the witnesses on the point if needed. Before discussing the witnesses, it is made clear that there are some admitted facts in the case that appellant is husband of Fulrani, death is within seven years of the marriage, there is no whereabout of Fulo Rani. Prosecution case is that she was killed for non-fulfillment of demand of dowry for which she was cruely treated. On this point, it is said that once she was ousted from the house, but on request of this appellant and other in-laws, she was allowed to go with them to matrimonial home and then again there was demand and she was killed. Points remain to discuss are:- (1) whether there was cruelty soon before the death; (2) whether Fulo Rani was killed or died of unnatural death. If this much is established then presumption under Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 4 Section 113B of the Indian Evidence Act comes to play a vital role against accused-appellant. Circumstance always plays role in cases like instant where witnesses are not eye witness. In this case one Sanjit Sharma claimed eye witness of the incident of assault before death, but while he was examined in the case as PW-2 stated to know nothing about the incident. F.I.R. is that this Sanjit Sharma told PW-4 and their other family members about the incident of assault and remaining of dead body after its half cremation (burning). Recovery of dead body is there, but without head, leg and hand. Inquest report is also to the same effect as well as the post mortem report. Though some claim is made to identify, but without head, leg and hand that cannot be relied. Any cloth or any article in possession of deceased is also not recovered. So, evidence is lacking in the case that dead body was of Fulorani. No doubt, either informant’s daughter disappeared from matrimonial home or killed or dead and not informed, but appears a link only not completing the chain. This circumstance with admitted facts, if, are taken into consideration, what more is needed for presumption under Section 113B of the Indian Evidence Act that is cruelty or harassment for demand of dowry soon before the death and death not in normal circumstance. Death is the ultimate result of disappearance of the informant’s daughter from her matrimonial home is doubted as discussed above. Next question arises about cruelty or harassment for demand of dowry soon before the death, PW-4 and PW-5 father and brother of the victim are there to state the same. Before discussing Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 5 them, it is pertinent to mention here that PW-3 is also a witness but hearsay. PWs-4 and 5 are clear on the point that after the marriage demand was there followed by cruelty or harassment, but they are constant on the point to a particular period that is the incident of ouster of the victim. It is their case that once after going to her matrimonial home, she came to her parental home, again went to matrimonial home and then was ousted for non-fulfillment of demand of dowry. Though, some contradictions are shown by the learned counsel for the appellant, but that is not relevant as same is only on the point that either she was taken by the father while she met him at Areraj or taken by her brother from the house after the ouster and matter in issue is causing of cruelty or harassment for demand of dowry for the last time when she came to her matrimonial home. F.I.R. is to the effect that on request of in-laws, she was allowed to come to her matrimonial home on the assurance of non- repetition of the demand or torture. PW-4 states in Paragraph-3 that when the sasural people came for Bidai, she was sent with them. In Paragraph-14, he states about no pressure rather on his sweet-will and satisfaction. PW-5 is repeating this fact in Paragraph-5. So after coming of informant’s daughter for last time to her matrimonial home, if any, cruelty or harassment is caused for demand of dowry that only can be taken soon before the death, because of the reason that ouster of the victim intervened that is clear from the F.I.R. as well as statement of PWs-4 and 5 that she was allowed to accompany her in-laws for matrimonial home and there was understanding rather assurance that there will be no repetition of cruelty or harassment for Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 6 demand of dowry. Now the statements of these witnesses are relevant on this particular point. No doubt, PW-4 in Paragraph-3 states about making of demand again, but causing of cruelty or mental and physical harassment is missing and demand and harassment both are missing in statement of PW-5. So, it is clear that the ingredient of cruelty or harassment soon before the death is not established in the case. There appears some mistake committed in the case also by the Trial Judge is not complying mandatory provision, that is giving no opportunity to explain the circumstances appeared in the case under Section 313 of the Cr. P.C., which is to the effect that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him by questioning after the witnesses of the prosecution have been examined and before he is called on for his defence. In the instant case, a general question is put before the appellant that is to the effect that evidence was there that Fool Kumari Devi was tortured for demand of dowry and appellant killed her after pressing her neck and cremated the dead body to disappear the evidence. In absence of eye witnesses, such question never justified to be explained circumstances appearing in the case. What are circumstances in the case that Fool Kumari Devi was found missing from her matrimonial home, a dead body without head, hand and leg recovered if was of Fool Kumar Devi then only torture for demand of dowry and killing. This area has not been touched by the learned Patna High Court CR. APP (SJ) No.623 of 2009 dt.15-12-2011 7 Additional Sessions Judge. In the discussed circumstance conclusion reached by him (Trial Judge) in passing the impugned judgment and order is not liable to be sustained. Accordingly, the appeal is allowed and the judgment and order passed by the Additional Sessions Judge, F.T.C.-1, Motihari dated 31st of July, 2009 and 03.8.2009 in Sessions Case No.611 of 1996 arising out of Govindganj P. S. Case No.47 of 1996 are set aside and the appellant is acquitted of the charges for the offences under Section 304B, 201 of the I.P.C. The appellant is directed to be released at once if not wanted in any other case. Let copy of the first page and last page of this order be handed over to the learned Amicus Curiae for needful. Let a copy of this order be communicated to the Court below through fax at the cost of the appellant. Patna High Court, Patna 15th of December, 2011 Vikash Verma A.F.R./ ( Mandhata Singh, J.)