Criminal Appeal (SJ) No. 477 of 2007 ------- Against the judgment and order of conviction and sentence dated 26.3.2007 and 29.3.2007 passed by Shri Sunil Kumar Srivastava, Additional Sessions Judge, FTC II, Aurangabad in S.T. No. 337 of 2004/184 of 2004. ---------- 1. Satya Narayan Singh, son of Late Karu Singh, 2. Kusum Devi alias Kushmi Devi, wife of Satya Narayan Singh, 3. Akesh Kumar, son of Satya Narayan Singh, all resident of village – Sahpur, Police station – Aurangabad (M), District – Aurangabad ……………… Appellants Versus The State of Bihar ………….. Respondent --------- For the Appellants : Sarvshri Krishna Pd. Singh, Sr. Advocate Meena Singh & Rakesh Singh, Advocates For the State : Shri S.N. Prasad, A.P.P. -------- P R E S E N T HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The three appellants were charged together by the learned Presiding Officer, Fast Track Court II, Aurangabad for being tried for committing the offences under sections 304B/34 and 201/34 IPC in S.T. No. 337 of 2004/184 of 2004. The appellants were found guilty of committing the two offences by judgment dated 26.3.2007. They were heard on sentence on 29.3.2007 and each of them was directed to suffer RI for ten years and three years respectively under sections 304B/34 and 201/34 IPC. The sentences were directed to run concurrently. The appellants are before this Court to challenge the order of conviction and sentence aforesaid. 2. Undisputedly, the deceased Reena Kumari was married to appellant Akesh Kumar as per Hindu rites and rituals on 4th June, 2002. It is also not disputed that the deceased was residing in the house of the appellant on 11.4.2004 2 when she is said to have been killed by the appellants after being tortured for quite some times on account of not getting the demand of dowry fulfilled. The written report (Ext.2) to the above effect was filed by the informant (P.W.5) who happened to be the brother of the deceased on 18.4.2004 and on that basis, the FIR (Ext.1) was drawn up on the same day and at the same time for investigating the case. The I.O. has not been examined, thus, depriving the court of the advantage of having the facts before it as to how did investigation proceed further after drawal of the FIR. However, it is clear that the police sent up three appellants for trial and after trial being concluded, they were convicted by the impugned judgment. 3. The defence of the appellants was that the deceased was a chronic patient of heart disease and she died of heart attack, information about which was sent to the parents and other relatives of the deceased and, accordingly, they had participated in her cremation. It was further suggested, as may appear from paragraph 28 of P.W. 7, the father of the deceased, that he wanted the ornaments of the deceased to be returned to him which was refused by the appellants and that prompted his son P.W. 5 Akhilesh Kumar to lodge the written report. 4. Seven witnesses were examined in support of the charges, out of whom, P.W. 1 Ramesh Prasad Singh, P.W. 3 Rama Shankar Singh and P.W. 4 Anjani Kumar Singh were declared hostile on account of having not supported the prosecution story. P.W. 2 was a witness of formal character, who proved the signature of SI C.P. Paswan, Officer Incharge of the police station. The three remaining witnesses, i.e., P.W. 5, the informant and his parents Malti Devi and Uday Singh came to support the prosecution case and accepting their evidence, the learned trial judge passed the impugned judgment. 5. I was taken through the evidence by the learned senior counsel for the appellants. It was contended that the evidence of P.W. 7 could not be considered as he has admitted in paragraph 23 that he was never questioned by the police nor did he make any statement before it and further that he was set up as a witness by his son Akhilesh Kumar (P.W.5). Reference in the above behalf was 3 made in paragraphs 23, 25 and 27 of his evidence. It was further contended that the relationship between the parties was very cordial and evidence of the mother of the deceased indicated that they were not as better-off as to be able to give rupees fifty thousand in cash which was allegedly demanded by the appellants rather P.W. 6 admitted in paragraphs 7, 8 and 9 that the appellants were quite rich and respected persons and there was no ill will or any complaints at the time of marriage, because the father of Akesh Kumar, appellant no. 3, had brought substantial gold ornaments and other ornaments due to which the bridal side was quite satisfied. It was admitted that the deceased was ill and she had been treated in Calcutta and, as such, the finding of the learned trial judge that there was no probability indicated by any evidence regarding the illness of the deceased is completely out of record. Contention further was that the evidence of demand of dowry and ill treatment is too weak to be considered for proving the charges. 6. P.W. 6, the mother of the deceased has admitted in paragraphs 6, 7 and 8 that hers was a family, which was simply affording bread and butter and could not afford to give rupees fifty thousand in cash as was allegedly demanded by the accused as the amount was itself beyond their reach. As against them, her son-in-law, i.e., appellant Akesh Kumar hailed from a very sound family which was quite rich and respectable and at the time of marriage, the appellant Satya Narayan Singh had brought substantial quantity of gold ornaments, as a result of which the bridal side was quite satisfied due to the marriage being solemnized to a better-off family. She has further admitted that on account of the above reasons as also the bringing of Barat by vehicles, they were satisfied and there was no ill will or complaints in between the parties. Thus, the allegation which emanated from the written report that there occurred some differences between the parties at the time of marriage due to non-fulfilment of demand of certain dowry articles appears quite improbable and not acceptable. Not only that, the subsequent story of demanding any dowry, may be in the form of cash of rupees fifty thousand, also appears disproved by the evidence of P.W. 6 in paragraphs 10 onwards that there 4 was virtually no deemand made by the accused person and the relationship was quite cordial and it was all exchange of respect and respectful courtesies between the parties and that the bride Reena Devi was always enjoying the freedom of coming to her parent’s house to reside there for quite some number of months. Whenever she was taken back, it was appellant Satya Narayan Singh, who was to take her there and there was no demand on any such occasion. If this was the relationship prevailing between the parties as appears told by P.W. 6, then the evidence of P.Ws. 5 and 7 that there was some demand appears quite doubtful. A daughter could be very close to the mother and it is always the experience of mothers that their daughters confide matters of pleasure and sorrow only in her mother if there was no sister and bhabhi in the house hold. The evidence of witnesses does not indicate that there was another sister of the deceased nor does it indicate that the informant was married and his wife was living, so this court may raise a natural presumption that whatever bad or good happened with the deceased or would have been experienced by her, she must have revealed those happenings or experiences to her mother Malti Devi (P.W. 6) only. As mother’s heart always reads the sorrow of her child, there could not be any reason that P.W. 6 would be concealing the matters of sorrow or grief which could have been narrated to her by the deceased. 7. In the above view of the matter, what I find from the evidence of P.Ws 5 and 7 is that, firstly, their evidence is not strong on the demand of any article or dowry as is required to substantiate the charge but it is also not convincing as regards the demand for any dowry. The first defect was appearing from the very written report when it was silent on the very demand for any dowry. It appears a subsequently-built-up-story by the prosecution to bolster up its case to prove the charges under sections 304/34 IPC. Not only the above, P.W.7’s evidence I have noted not only for the reason that he did not make any statement before the police, but also for the reason that he, according to his own evidence, was set up by his son, who was the person piloting the prosecution of the 5 appellants. Besides the above, P.W. 7 was stating in paragraph 4 that after having learnt about the incident from one Darshani Singh, who happened to be the Mama of the deceased that the deceased had been killed, he went, firstly, to the police station, took the police with him to come to the house of the appellants and not finding the dead body there, lodged the case. P.W. 7 has stated that blood stains were found on the hands of the appellants. 8. When this statement of P.W. 7 was contrasted with that of P.W. 5, who said that he came to the village after seven eight days of the occurrence and after gathering the information about the real happening from villagers (none being examined), he filed the case after seven/eight days. This evidence is available in paragraph 6 of the evidence of P.W. 5. P.W. 5 stated that he was the person who had only gone to the police station and that particular statement in paragraph 4 of the evidence of P.W. 5 contradicts the evidence of P.W. 7 in paragraph 4. Not only that, it again remains a mystery as to when the father and the son visited the house of the appellants just after getting information from Darshani Singh, who has not been examined, then why they came back to their house to keep a complete silence for seven days to file the report on 18.4.2004. There is absolutely no explanation in the above behalf. Moreover, it appears that the witnesses were very conscious as to what they should state so as to re-enforcing the charge. This is the reason that P.W. 7 was making his statement in the court that when he went to the house of the appellant on 9.11.2004, appellant Satya Narayan Singh demanded some financial help on the occasion of getting his daughter married. But that statement appeared not made by P.W. 6 in her statement. 9. Two letters in the Photostat copy form marked as X and X/1 for identification also appeared the result of some effort by the prosecution on fabrication of evidence and that appears the reason that this Court has to be very cautious in acting upon the evidence of P.Ws 5, 6 and 7. 10. P.W. 5 in paragraph 17 has admitted that his daughter had been treated in Calcutta but he did not remember the name of the doctor. However, it 6 was Bishudanand Hospital in Calcutta where she was admitted for treatment. This witness has also admitted in paragraph 17 that the deceased was admitted in the hospital at Calcutta as she was not maintaining good health. Similar is the statement of P.W. 7 when he stated that the deceased had been treated for cough and cold in Calcutta in Bishudanand Hospital. The learned trial judge has shifted the burden of proving the manner of death upon the defence and, as such, he has drawn an adverse inference when he was holding in his judgment that the non examination of the doctor has made it very difficult to accept the defence version. This Court wants to point out that the defence has never to establish its case and its version is never to be proved to the hilt as is required in case of proof of charges by the prosecution. The onus to prove and the burden to be discharged by the defence are two different aspects of criminal trial and each of them has to be approached separately and distinctly. When it comes to the proof of charges to the hilt, it always signifies that each and every ingredient of the offence with which the accused persons might have been charged, has to be established by admissible and acceptable evidence coming through trustworthy witnesses. When it comes to discharging the burden by the defence, then merely raising a probability in support of any of the multiple facts constituting the defence could be sufficient to create a doubt in the prosecution story and on that account, the accused has to be acquitted. The learned judge ought to have considered that the prosecution witnesses were also admitting the deceased being ill or not maintaining good health and being treated at Calcutta. So there was a probability that the deceased was ill and might be that she had succumbed to the illness and the further probability which appears to me is that the informant, his parents were also satisfied about it for sufficiently continuous days and that was the reason that no report was being filed. P.W. 7 has stated that he sat tight in his house for those many days and, thereafter, a decision was taken that the written report should be filed. Silence of witnesses for seven days could not be meaningless, it may not be telling many things loudly but a 7 simple whisper raising the probability of the defence version could be enough to suspect the prosecution charges. 11. These are the reasons upon which I find that the appellants were wrongly convicted of the offence and they rather deserved to be acquitted on account of the prosecution having failed to prove the charges to the hilt. The appeal, as such, is allowed, the judgment of conviction and order of sentence passed upon the appellants are set aside. Appellants Satya Narayan Singh and Kusum Devi alias Kushmi Devi are on bail. They shall be discharged from their respective bonds. Appellant Akesh Kumar is in custody. He shall be released if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 3rd November, 2011, NAFR/Anil/