IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment of conviction and order of sentence dated 13.01.2007 passed by Additional Sessions Judge-XI, Patna in Sessions Trial No.850 of 2002/03 of 2005. CRIMINAL APPEAL (SJ) NO.264 OF 2007 RAJKUMAR SAO, Son of Ramswaroop Sao, resident of mohalla-Farhiya Tola Chak Hussain, P.S.Khusrupur, District-Patna.... .... Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL REVISION NO. 316 OF 2007 NAWAL SAO, Son of Jangi Sao, resident of Salimpur, Police Station-Bakhtiyarpur, District-Patna --------Petitioner Versus 1. The State Of Bihar 2. PARMESHWAR SAO, Son of Ram Swarup Sao, resident of Chak Hussen, P.S.Khusrupur, District-Patna ---------Opposite Parties For the appellant: - Sri Aaruni Singh, Amicus Curiae. For the State: - Sri Ajay Mishra, A.P.P. (In Cr.Appeal No.264 of 2007) For the petitioner: - Smt. Nutan Sahay, Amicus Curiae, For the State: - Sri Ajay Mishra, A.P.P. (In Cr.Revision No.316 of 2007). ------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present Criminal Appeal and the connected Criminal Revision petition have been heard together and 2 are being disposed of by this common judgment as they have been preferred to challenge the same judgment. The Criminal Appeal has been preferred by the solitary appellant to bring into question on propriety and correctness of judgment dated 13.01.2007 passed by the learned Additional Sessions Judge-XI Court, Patna in Sessions trial No.850 of 2002/03 of 2005 by which appellant Rajkumar Sao was held guilty of committing an offence under Section 304B IPC and was directed by the order of sentence passed on the same day to suffer rigorous imprisonment for ten years. 2. So far as the Criminal Revision petition is concerned, the informant of G.R.Case No.191 of 2002, i.e., Khushrupur P.S.Case No.6 of 2002,. examined during the trial as P.W.5, is the petitioner and he has prayed that the acquittal of Permeshwar Sao be set aside and he should be re-tried by directing the court below to inflict an appropriate sentence after holding him guilty of committing the same offence. 3. The facts of the case in short may be stated. Undisputedly, appellant Rajkumar Sao was married to Rinku Devi who happened to be the niece of P.W.5 Nawal Sao, the informant of the case, and petitioner in the Criminal Revision. The prosecution story is that she was married two and half years prior to the occurrence and on the date of the occurrence she was residing in the house of 3 the appellant. 4. It was stated that the appellant Rajkumar Sao was carrying an illicit relationship with his Bhabhi Urmila Devi, who happened to be the second wife of Parmeshwar Sao, O.P.no.2 of Criminal Revision Petition and that was being objected to by the deceased as a result of which she was being illtreated besides the said Urmila Devi used to instigate and pressurize appellant Rajkumar Sao to ask the deceased to bring money from her parents and on that account also, the deceased was being illtreated and tortured. It was stated further that on 16.02.2002, the informant P.W.5 came to know that his niece had been murdered. He came to the house of appellant Rajkumar Sao to find that the dead body was lying there. It was stated by the informant in his fardbeyan(Ext-2) that 4-5 days prior to the occurrence on account of the illtreatment and torture of the lady deceased Rinku Devi, a Panchayati had also been convened at the house of the accused persons in which they had given some sort of undertaking that they would not illtreat her, but when the brother of the deceased, namely, Dharmendra Kumar,(P.W.4) had come on the very day of the occurrence to take the lady back to his house as the lady was to appear at her matriculation examination, she was not allowed to go to her parents house unless the demand of the accused persons was met and in the next 4 morning the informant had received the information about the death of the deceased upon which he along with his brother Vijay Sao(P.W.1), Mantoo Sao-nephew of Dharmendra Kumar(P.W.4), Manoj Kumar(not examined)as also others came to the house of the appellant where the dead body was found lying in the Aangan. The informant stated that there were some marks on the throat of the deceased indicating as if she had been throttled because of the illicit relationship the appellant was carrying on with Urmila Devi as also for non-fulfillment for demand of the dowry. 5. It appears from the evidence of P.W.10 A.S.I. Yogendra Paswan that a rumour reached the police station about the death of the deceased and the dead body lying in the house of the appellant. P.W.10, as such proceeded to verify the truthfulness of the rumour and on coming to the house of the appellant and finding the informant and others there, recorded Ext-2. He, thereafter held inquest upon the dead body (and prepared the report Ext-5) and dispatch the same for postmortem examination which was held by P.W.11 Dr. Arbind Kumar who prepared the postmortem examination report Ext-7. P.W.10 further stated that he came back with the documents, like, the fardbeyan, the inquest report and the dead body challan to the police station where the case was registered and P.W.10 was handed over the charge of investigation, 5 during which he examined the witnesses, inspected the place of occurrence and after receipt of the postmortem examination report and finding materials sufficient sent up the accused persons for trial. 6. It may be pertinent to point out that originally three accused persons were put on trial but trial of Urmila Devi was separated by the learned trial Judge by his order passed on 30.03.2006 leaving two accused persons, i.e., the appellant of the Criminal Appeal and the solitary respondent of Criminal Revision Petition on trial and that ultimately ended in the impugned judgment. 7. Rinku Devi died of homicidal death, cannot be disputed because the evidence of P.W.11 Dr. Arbind Kumar is very specific and clear. During postmortem examination, he had found two antemortem abrasions:- (i)One on the anterior neck over larynx measuring 0.8x0.2 Cm. and (ii)On left lumber region of back measuring 1 Cm and 0.5 Cm. 8. As per evidence of P.W.11 those injuries could be caused by use of lathi and injury no.1 which was on the anterior part of larynx was appearing on account of the lady being throttled by use of hard and blunt substance. This is the reason that P.W.11 was finding the underlying hyoid on fracture and a little of blood having 6 hemorrhage into the surrounding tissues. 9. From the very cross-examination of P.W.11 it appears that as a precautionary measure he had presumed some part of the viscera also which was dispatched to Forensic Science Laboratory, Patna for analysis and report and that report appears marked under Section 293 Cr.P.C. as Ext-8 which indicated as if the lady had also been administered endosulfan which was a chloro-organic pesticide, used for killing pests and was poisonous. 10. Sri Aaruni Singh, the learned Amicus Curiae assisting this Court for the appellant and in the revision petition for the respondent was submitting that the evidence of witnesses were omnibus as to what was the real demand of any particular thing or article as dowry. It was also not clear from the evidence of the witnesses as to from which period the demand was being made and further the motive for which the offence was being committed, i.e., the illicit relationship of appellant Rajkumar Sao with his own Bhabhi Urmila Devi was also not properly established. The evidence of doctor was further creating an anomalous situation as to whether the lady had been murdered due to being strangulated or she was administered poison so as to be killed. There was no definite explanations on these anomalies. The prosecution case suffered very serious set backs as a result of which not only the acquittal of Parmeshwar Sao be upheld but 7 the present appellant Rajkumar Sao be also allowed. 11. Smt. Nutan Sahay was resisting the submissions with all tenacity one could find in a court room. She was submitting that by all means the demand of dowry by the appellant or his family members was established. Might be, the witnesses could be wavering on some part of it, but for that their evidence must not be thrown out. In addition to that the evidence of the doctor was almost conclusive as the lady who was residing with the appellant in his house was found killed by either of the modes which may be appearing from the evidence of P.W.11 and Ext-8 the report of the F.S.L. It was contended that the motive was not of much importance in the case of the present nature and because of the torture on the part of the accused was admitted to be removed by holding a Panchayati and the evidence as such indicated that the demand of dowry which was made was ultimately leading to torture of the lady and the torture was soon before her death. The evidence showed that it was a fit case in which the appellant was convicted under Section 304B IPC. Smt. Sahay submitted that the offence could not have been committed by the solitary appellant and the hand of respondent no.2 Parmeshwar Sao was definitely there in causing the death of the lady. On the above reasons Smt. Sahay submitted that the judgment of acquittal as regards respondent no.2 Parmeshwar Sao of 8 Criminal Revision Petition be set aside and the matter be remanded back for re-trial and passing appropriate order of conviction and sentence upon him. 12. Twelve witnesses were examined by the prosecution, out of whom P.Ws.6, 7 and 8 were declared hostile. So far as prosecution allegation regarding the demand of dowry is concerned, it is true that the fardbeyan of the informant P.W.5 Nawal Sao confined the allegations only to the demand of money being given to the accused persons, nothing was stated that money could be in lieu of a motorcycle as its price. But, the witnesses who were examined, like, P.Ws.1, 2 and 3 were all stating that the accused persons were demanding a motorcycle to be given and on not getting the same, they were assaulting the deceased and thus illtreating her. The evidence to the above effect appears in paragraphs-1 and 13 of P.W.1, paragraph-2 of P.W.2, paragraphs-1, 5 and 14 of P.W.3. So far as the competence of those witnesses are concerned, their evidence appears sufficient to indicate that they might not be the competent witnesses, specially, P.W.2 and P.W.3. P.W.2 has stated that whenever he went to the house of the appellant he could learnt from the deceased that a motorcycle was being demanded by the accused persons and for that the lady was being illtreated and tortured. Likewise, evidence of P.W.3 in paragraph-17 indicates as 9 if no demand of motorcycle was made in his presence and it could be said that that particular witnesses could not be a competent witness as regards the demand of any dowry or article. In spite of that the evidence of P.W.1 and that of P.W.5, the informant appears a bit supporting the prosecution case that a demand was being made of some cash or in lieu thereof a motorcycle or the cash may be vice-versa. P.W.1 was speaking about the demand of a motorcycle and he does not mention anywhere in his evidence that in lieu thereof a motorcycle the appellant was even desirous of getting the price thereof. P.W.5 in paragraph-4 was making a small improvement on his version which was contained in Ext-2, the fardbeyan. He stated that the accused persons were demanding cash in the form of Rs.50,000/- or a motorcycle. It is quite apparent from the record, i.e., Ext-2 that the informant had never stated in it which was the basic prosecution document, that any demand of motorcycle was made by the accused and for that the lady was illtreated and tortured. But, the demand for some cash was appearing in the fardbeyan and what has now been done through the evidence of P.W.5 is that the same has been quantified at Rs.50,000/- while initially there was no quantification of the demanded of cash. Thus, what appears from it is that some demand was being made of cash. May be, the prosecution was improving upon its case by introducing the story of a motorcycle. 10 So far as the motive for the commission of the offence which was alleged by the prosecution is concerned, this appears not established inasmuch the witnesses, like, P.W.1 and P.W.5, the informant himself, had earlier stated in his fardbeyan that appellant Rajkumar Sao was carrying an illicit relationship with accused Urmila Devi did not state any fact in their respective evidence. Likewise, P.W.2 in paragraph-3 and P.W.4 in paragraphs-1 and 16 and further in paragraph-17 have given evidence which make it doubtful that they could be competent persons to make any statement on that special relationship between the appellant and accused Urmila Devi. P.W.2 stated that when he went to the house of the appellant on the day of occurrence, he came to learn about the illicit relationship between Urmila Devi and the appellant, but it was hearsay as may appear from paragraph-27 of statement of P.W.2. Similarly, P.W.4 stated in paragraph-1 that the illicit relationship between the appellant and Urmila Devi was stated by the deceased to him whereas he was stating in paragraph-16 that Urmila Devi was residing at quite some distance and further that there was no such earlier information to the witness. This appears consistently admitting by almost all witnesses that the house of respondent no.2 Parmeshwar Sao was located at quite some distance from that in which appellant Rajkumar Sao and deceased were 11 residing. No other person than the close relatives of the deceased who were the brothers and uncles of the deceased were coming forward to speak on the relationship existing between appellant Rajkumar Sao and accused Urmila Devi. In the light of the evidence which is available on the record, it is very difficult to hold that the prosecution had succeeded in establishing the fact that there was indeed a relationship between appellant Rajkumar Sao and Urmila Devi who happened to be the wife of respondent no.2 Parmeshwar Sao. 13. So far as the story of Panchayati is concerned, there is some evidence coming from P.W.1 in paragraph-1 and P.W.2 in paragraph-5 whereas P.W.3 was not speaking anything on that part of the prosecution case. P.W.4 was, of course, speaking on convening a Panchayati for talking to the accused persons so that the deceased was not tortured or illtreated. P.Ws.1 and 2 were naming witnesses who have been examined by the prosecution as persons who had convened the Panchayati and participated in it. Thus, the evidence of P.W.4 may not be acceptable as regards the participation of persons in Panchayati, but in spite of that the evidence of that particular witness on convening a Panchayati may not be fit to be rejected. P.W.5, the informant has stated on holding of Panchayati in paragraph-10 and an assurance given by the accused persons of no further illtreatment 12 and torture being meted out to the deceased. The normal expectation of such related witnesses could be that instead of finally severing the relationship or straining the relationship more, they would make all efforts and attempts to iron out the differences which might have existed between the two sides on account of any particular demand or its non-fulfillment. As such, the probability regarding the Panchayati being convened appears more prominently appearing from the evidence of those witnesses and that part of the prosecution story also appears truly probabilized. 14. Rinku Devi was residing on the day of occurrence in the house of the appellant. There is consistent evidence on demand of some dowry from her to be brought from her parents’ house. The evidence has come through some of the witnesses that the appellant was residing in Delhi and was working there and had come back to his house six months prior to the occurrence and since thereafter he had started behaving cruelly towards the deceased. Very presence of the deceased in his house created some sort of obligation upon him due to having the knowledge about the manner in which the deceased was either strangulated to death or administered poison. Strangulation has been opined caused by some hard and blunt substance. After having considered the evidence in cross-examination of P.W.11 in paragraph-6 that when 13 injury no.1, i.e., the strangulation was being affected, the lady may not be lying in a position and further that sufficient force was applied on her neck so as to suffocating it and thus to kill her. Many possibilities has been stated to by P.W.11 but what I visualize from the evidence of the doctor is that probably the lady was strangulated by applying fisticuffs by the appellant when his two fingers pressed the sides of her neck and the main arch of the palm-web was putting pressure upon her throat. This appears duly probabilized by the description of injury no.1 both in examination-in-chief and cross- examination. This could be the act which could have been done by a single hand and as such the acquittal of respondent no.2 Parmeshwar Sao, Opposite Party in Criminal Revision Petition No.316 of 2007, appears not bad on facts. 15. So far as conviction of appellant Rajkumar Sao is concerned, it was contended by Sri Singh, the learned Amicus Curiae that the prosecution must establish the exact date of marriage and must also show that there was reasonable evidence available on record establishing the fact of causing the death of the lady. Section 304B IPC uses the word ‘within seven years’ when the legislature was employing the word ‘within’ so as to describing the period, then it could not be said that it could be starting for a particular date to end on a 14 particular date in future. ‘Within’ could be including any date which may fall during the period of seven years to be counted from the date of the marriage of a lady. Moreover, in matters of appreciation of evidence the courts do not expect the exact evidence. Approximation is what the courts go in search of so as to raising reasonable probability for the act being committed or the result ensuing. The evidence on record was that the marriage was only about two and half years old and I find from the consideration of the evidence of five witnesses that there was no dispute set up by the appellant that it was in excess of seven years. 16. As regards the cruelty and ill-treatment which could be heaped on a lady as a result of which her death could be occurring under unnatural circumstance, the proof to the hilt appears not used by the legislature. What could be the standard of proof regarding the instances of torture and illtreatment which could be heaped on the lady on account of non fulfillment of demand for dowry, the legislature requires the evidence reasonably to be acceptable indicating as if any demand for additional dowry or dowry in connection with the marriage was made and there were sufficient materials available on record indicating as if the lady had been illtreated and tortured. If the evidence is of that standard then the requirements of establishing the 15 ingredients of the offence under Section 304B IPC could be said to be satisfied. However, the illtreatment or the acts of cruelty must have been committed soon before the death of the lady. I have already made reference to the evidence of witnesses which indicated that the appellant Rajkumar Sao had come to his house from Delhi six months prior to the occurrence and the lady who was quite hail and hearty was not allowed to go to her father’s house to appear at her matriculation examination-unless the demand of the appellant had been met with and in the very next morning the lady was found dead which was caused by strangulating her. In the above view of evidence, there could be no further view than to hold that the acts were consistently proximal to the acts which ultimately resulted into the death of the lady. 17. After having considered the evidence what I find is that there is no merit in Cr.Appeal No.264 of 2007 as the learned trial Judge appears passing a perfect order of conviction and has inflicted the appropriate sentence. Likewise, Cr.Revision No.316 of 2007 also appears having no merit inasmuch the admitted position that respondent no.2 Pasrmeshwar Sao was residing apart from the house in which appellant Rajkumar Sao was residing and the evidence which was adduced on record did not indicate any specific role played by the respondent. 18. In the result, the Cr.Appeal No.264 of 2007 16 and Cr.Revision No.316 of 2007 are dismissed. 19. The two learned counsel assisted the court quite well and in my considered opinion they deserve one fee of hearing each in the two connected matters. Accordingly, let a fee of hearing be paid to each of the two Amicus Curiae who appeared in the two matters by the Patna High Court Legal Services Committee. Patna High Court, Dated, the 20th September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)