CRIMINAL APPEAL No.320 OF 1993 Against the judgment of conviction and order of sentence dated 18th September and 21st September, 1993 respectively passed by Sri Paras Nath Sinha, Sessions Judge, Begusarai in Sessions Case No. 163 of 1992. ****** 1. HARDEO PANDIT S/O LATE TANAK PANDIT 2. SAHDEO PANDIT S/O LATE TANAK PANDIT 3. KUSMA DEVI W/O LATE TANAK PANDIT ALL R/O VILLAGE- BATHAULI, P.S.- BARAUNI, DISTRICT- BEGUSARAI ……………………………………………………….. APPELLANTS Versus 1. STATE OF BIHAR 2. JAGDISH PANDIT S/O HARI PANDIT, R/O VILALGE- BATHULI, P.S.- BARAUNI , DISTRICT- BEGUSARAI ……………………………………………..RESPONDENTS ************* For the Appellants :- Mr. Ram Briksh Singh ‘Pahepuri’, advocate Mr. Awadhesh Kumar Singh, Advocate For the State :- Mr. Ali Mozaffar, APP **************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. The above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 18th and 21st September, 1993 respectively passed by the learned Sessions Judge, Begusarai in Sessions Case No. 163 of 1992 whereby appellants Hardeo Pandit, his brother Sahdeo Pandit and their mother Kusma Devi were found guilty for the offences under sections 304 B, 498 A and 120 B of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 10 years under section 304 B of the Indian Penal 2 Code and no separate sentence was awarded to the convicts under sections 498 A and 120 B of the Indian Penal Code. The prosecution case has been resulted initially from the information of Jagdish Pandit who gave a written report dated 5.3.1992 to the Officer In-Charge of the Barauni Police Station that his niece Sobha Devi, daughter of Baleshwar Pandit, resident of village- Maida Babhangama, police station- Barauni was married with Hardeo Pandit about four years prior to the alleged occurrence. In-laws of his niece were torturing her in connection with demand of Rs. 5,000/- by way of additional dowry. It was alleged that Sobha Devi was killed by her husband, his elder brother and mother and her dead body was thrown on the railway track in the night of 4/5th March of 1992 and in the next morning the accused persons took her dead body for cremation. The death was not informed to the informant though the villages were separated only by four kilometers. The written report resulted into the registration of Barauni P.S. Case No. 74 of 1992 under sections 302, 201/34 of the Indian Penal Code. After investigation, charge sheet was submitted and cognizance was taken. The case was committed to the court of sessions where the charges were framed and explained to the accused persons to which they pleaded their innocence then the trial proceeded. The defence of the appellants was that the deceased Sobha Devi, wife of Hardeo Pandit was never tortured. She was a patient of mental disorder. She used to return to her father’s village 3 and village of her matrimonial house without any information. On the eve of Til Sakranti she went to her parents house but she did not return. The trial court disbelieved the defence version and believed the prosecution version and held the appellants guilty of the charges. It has to be seen here whether the prosecution is able to prove the charges beyond all reasonable doubts or not. The prosecution has examined six witnesses in support of this case. They are Md. Nurhul Hasan ( PW !), Ramchandra Yadav (PW 2), Ramphal Pandit (PW 3), Guta Pandit (PW 4), Jadish Pandit the informant (PW 5) and S.I. Paras Nath Singh (PW 6). Informant of the case is PW 5. He is the uncle of Sobha Devi. He stated that Sobha Devi was married with the appellant no. 1 of village Bathaouli. He learnt through a boy that a girl in the family of Kumhar was murdered near Bargad tree in village Bathaouli. As it was only Kumhar family in that village, so PW 5 suspected foul-play and he rushed for village Bathaouli along with PW 1 Nurul Hussan, PW 2 Ram Chandra Yadav and PW 4 Gita Pandit. When they reached at village Bathaouli he did not find any member of the matrimonial house of Sobha Devi and except the wife of Sahdeo Pandit, others have been escaped who told that Sobha Devi was met with an accident with rail and her dead body was cremated. He inquired form the villagers and knew that Sobha quarrelled with the accused persons as she was being 4 forcibly asked to prepare Bhang and on that account she was strangulated to death and thereafter, her dead body was put besides the railway track so that it can give another version of the occurrence. Later on, dead body was cut and so the dead body was disposed of by throwing the same in the river Ganga. He went to police station with two others and got the report registered. This witness was cross-examined about the person who told him about the death but he was not able to name him. PW 4 is uncle of Sobha Devi. His evidence is also in line with the evidence of PW 5 who stated that marriage was taken place four years earlier. After receiving the information regarding death of a lady in the family of a Kumhar, then he and others rushed and came to know about the occurrence. He made enquiry regarding the cause of death on which others have told that Sobha Devi was asked by her husband to prepare Bhang and on account of non fulfillment of that demand she was being regularly assaulted. The prosecution has examined a number of witnesses. The persons who had gone with the informant have been examined as PWs 1, 2 and 3 and none have supported any part of the allegation and they were declared hostile and were cross- examined by the prosecution. They have denied the suggestion of prosecution that they have made any statement before the police. PW 1 is the resident of village Maida Babhangama and co-villager of the informant. He had gone with PW 5, the informant 5 soon after hearing the news of death but he has not supported any party of the occurrence. He has stated that Sobha Devi was suffering from mental disease and because of mental disorder she was frequent to her husband’s village and her parent’s village without giving informant to any one. More or less is the evidence of PWs 2 and 3. They have not supported the charge rather they have supported the defence version that Sobha Devi was suffering from mental disorder. The conviction is under sections 304B, 498A and 120 B of the Indian Penal Code. Section 304 B IPC provides for dowry death and for proving the charge under section 304 B IPC one has to prove that the deceased was subjected to torture by her in-laws in connection with dowry related demand. It is for the prosecution to bring evidence that the deceased was subjected to cruelty prior to her death in connection with demand of dowry but in this case no witness has been brought by the prosecution to establish this fact. Another version has come that the death was not on account of demand of dowry rather it was on account of inability of Sobha Devi to prepare Bhang as ordered by her husband. So charge under section 304 B of the Indian Penal Code is apparently fails. There is no eye-witness to the occurrence. The informant has not seen the happenings. He has failed to give the name of the person who had informed him about the death. The persons on the side of the informant have also not supported the prosecution case. The I. O. has been examined but he could not locate the dead body. He 6 has also been not able to support any part of the occurrence. The deceased Sobha Devi, as it has been suggested by the defence, was having some mental disease and she used to leave the houses of the husband and her parents. No demand of dowry has been proved. There are major contradictions in the depositions of the witnesses. The FIR does not disclose the name of the person who had informed about the death. The FIR was lodged on the basis of suspicion and the same has also not been proved beyond all reasonable doubts. Once the charge under section 304 B of the Indian Penal Code fails due to lack of evidence about the demand of dowry then case becomes of no evidence. Accordingly, I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubts. In view of the aforesaid discussions, the impugned judgment is set aside and the appellants named above are discharged form the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) Patna High Court Dated 30th July, 2009 N.A.F.R./avin