IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment of conviction dated 18.07.2007 and order of sentence dated 20.07.2007 passed by Additional Sessions Judge, Fast Track Court-V, Kishanganj in Sessions Trial No.169 of 2007/Trial No.31 of 2007. CRIMINAL APPEAL (SJ) NO.820 OF 2007 SAROJ DEVI, Wife of Sabarmal Agrawal, Resident of village-Bisanpur, P.S. Kochadhama, District-Kishanganj..... .... Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 822 OF 2007 SABARMAL AGRAWAL, Son of Late Hare Ram Agrawal, Resident of village-Bisanpur, P.S.-Kochadhama, District-Kishanganj.... .... Appellant Versus State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 884 OF 2007 DEEPAK KUMAR AGRAWAL, Son of Sabarmal Agrawal, Resident of village-Bisanpur, P.S.-Kochadhaman, District-Kishanganj.... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellants: Sri Akhileshwar Prasad Singh, Senior Advocate. Sri Raj Kumar & Smt. Anita Kumari Singh, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA 2 Dharnidhar Jha,J The three appellants, one in each of the three appeals, were put on trial by the learned Presiding Officer, Fast Track Court-V, Kishanganj in Sessions Trial No.169 of 2007 by being charged with committing offence under Section 304B IPC and by judgment dated 18.07.2007, the three appellants were held guilty of committing the said offence and after being heard on sentence on 20.07.2007, while appellants Saroj Devi and Deepak Kumar Agrawal were directed to suffer rigorous imprisonment for ten years each as also to pay a fine of Rs.1,000/- each, else to suffer rigorous imprisonment for six months, appellant Sabarmal Agrawal was directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default of which he was to suffer rigorous imprisonment for six months. The appellants are before this Court through the present batch of three appeals to challenge the correctness and appropriateness of the finding of guilt and order of sentence passed upon each of them. 2. Some of the facts are not denied. Deceased Suman Agrawal, who was the daughter of P.W.10 Satya Narayan Agrawal, the informant of the case, was married to appellant Deepak Kumar Agrawal on 07.02.2007. There is nothing on the record or in the allegation which is contained in the fardbeyan, Ext-2, that there was any 3 demand for dowry either at the negotiation stage of the marriage or at the time when the marriage was solemnized. This is also not disputed that deceased Suman Agrawal was residing on 29.05.2006 and prior to that date, in the house of the appellants and that she died on that day in her matrimonial house. 3. What is alleged is that after marriage, the relationship between the deceased and the appellants ran smoothly for about 3-4 months, but subsequent thereto the appellants started ill-treating the lady and torturing her. After one year of the marriage, the lady had given birth to a son, but in spite of that the appellant Deepak Kumar Agrawal and his brother Govind Agrawal(not appellant) used to give ring to the informant and used to talk to him in rougher terms. It was stated further that the wife of the informant also talked to her daughter and during that course the deceased used to tell her mother Saroj Devi(not examined)that the appellants were demanding Rs.1,00,000/- for paying up some debt they had incurred and were telling the deceased that if she brought the money then only she would be kept with dignity and respect. The informant stated that the deceased used to fell ill off and on and he used to take his daughter for her treatment and whenever she used to come to his house, she was not willing to return back to her 4 matrimonial house and was very much frightened. 4. It was stated by the informant that some meetings were also organized in his community in Ishlampur in which the appellants also participated and the appellants Deepak Agrawal and Sabarmal Agrawal, the father, apologized for any misbehaviour which could have happened with the deceased in that particular meeting and assured that there would not be further tortured or ill-treatment with the lady. The informant stated that on being asked to pay the money, he had also paid Rs.50,000/- to him but the demand for more money was continued. 5. The informant stated that on 29.05.2006, he had a ring from one Rajesh, son of Sampat Jain, resident of village-Bishanpur, who has not been examined, informing that the condition of Suman Agrawal was serious and as such he should come back. Accordingly, P.W.10 went to the house of the appellants to find that the dead body of his daughter was lying on ground in the bed-room of the deceased. The informant inferred, and as such alleged, that the appellants had come together in committing the murder of Saroj Agrawal. 6. On the basis of Ext-2, the FIR of the case, Ext-4 was drawn up and the investigation was taken up by P.W.6, S.I. Rabindra Nath Tiwari who has stated that 5 he received the charge of investigating Kochadhaman P.S.Case No.49 of 2006 at the directions of Superintendent of Police, Kishanganj and started investigating the same when he recorded the further statement of P.W.10, the informant and statements of other witnesses. He also inspected the place of occurrence, the brick house of appellant Deepak Agrawal with tin sheet roof. It was facing west and there were three rooms in it which had a varadah in front of it. There were kitchen and bathroom also and the deceased was residing in southern room of the house. He, thereafter, obtained the postmortem examination and other documents, like, the inquest report and after closure of the investigation submitted charge sheet. 7. The prosecution had examined as many as ten witnesses during the trial and on consideration of the same, the impugned judgment was passed. 8. The defence of the appellants was that the deceased was suffering from asthma and paralysis and many other diseases for which she was regularly being treated by the doctors and she died of natural death and as such the doctors P.Ws.8 and 9, who together held the postmortem examination did not find any external or internal injury and were further of the opinion that there was no substantial reason appearing to them as regards the cause of death. In that view, P.Ws.8 and 9 6 preserved the viscera, but there is no report after the chemical analysis of viscera as well. It was contended that probability arises from the evidence of the prosecution witnesses itself that the deceased had died a natural death. 9. Sri Akhileshwar Prasad Singh, learned senior counsel appearing on behalf of the appellants in the three appeals submitted that the prosecution witnesses had failed to establish that death was under circumstances not natural which was definitely within seven years of the marriage. It was further contended that there was no evidence establishing that the deceased was subjected to cruelty or harassment in or in connection with the demand for dowry and further that if the probabilities were arising from the prosecution evidence itself regarding the defence of the appellants, then the learned trial Judge ought not to have convicted the appellants. Sri Singh took me through the evidence of witnesses to buttress his above submissions. 10. Sri Ajay Mishra, the learned A.P.P. was also of the view that the evidence on record was of such a nature and quality that it could be very difficult to support the judgment of conviction and the order of sentence. 11. As may appear from the very initial 7 prosecution version contained in Ext-2, the informant had got the information about the precarious condition of his daughter from one Rajesh, who was the son of Sampat Jain and was the resident of village-Bishanpur which was also the village of residence of the appellants. That Rajesh has not been examined. As such, there is no corroboration of the claim of the informant that he had indeed been informed by Rajesh, son of Sampat Jain that the condition of the deceased was quite precarious, as such, the informant should rush to Bishanpur. Even if in absence of the evidence of Rajesh what appears admitted is that there was some information and definitely from Rajesh that the condition of the deceased was very critical. However, what was the reason for the criticality of the condition of the deceased appears stated by different witnesses. P.W.1 has stated in paragraph-3 of his evidence that it was the stomach pain of the deceased due to which she was ill and, lastly, she died of it. Getting the information from Bishanpur he and the informant and others went there and learnt there also that the deceased had severe stomach pain and she died of that. P.W.1 has further stated that he went near the dead body which was lying on a bed on the floor of the house and some vomitted materials were also scattered around the place. However, there does not appear 8 anything stated by P.W.1 that the condition of the dead body could have given an inkling that she had been murdered. As regards the demand for dowry, P.W.1 has stated in paragraph-6 that once the informant has pointed out to him that the accused persons had demanded some money, but whether it was paid or not he was not aware of it and there was no further demand as per P.W.1. P.W.2, who was related to the deceased on account of the informant being his nephew, has stated that he learnt that the deceased had died an unnatural death and thereby went to see the dead body but did not find anything unusual. In paragraph-2 he has stated that he had not given any statement to the police. What is found in the evidence of P.W.2 is of no evil either for the prosecution rather his evidence does not appear admissible. So far as P.W.3 Madan Agrawal is concerned he has stated that deceased Suman Agrawal was being tortured by her family members in connection with some demand and Rs.50,000/- was also given to the appellants and there had been some Panchayati also but in his cross-examination, the witness stated that the information which had been received by him and others was that the deceased was seriously ill and as such they should come to Bishanpur and accordingly, they went there. P.W.3 has stated in paragraph-4 that he did not find any sign of injury, etc on the dead body and 9 suspected as if the deceased had been murdered by being suffocated to death. However, the attention of the witnesses was drawn in paragraph-9 to his previous statement and it appears that he had not given any statement that the accused persons had demanded any dowry or any money and on that account were ill- treating or torturing the lady. P.W.3 has admitted in paragraph-12 and has stated in his cross-examination that the deceased Suman Agrawal used to fall ill regularly and she was got treated and she was also suffering from paralysis. So far as P.W.4, Satya Narayan Agrawal is concerned, he was the Sala of the informant and he was the person who was also speaking about the torture on account of non-fulfillment of the demand but so far his statement on demand of money and the torture of the deceased on account of its non- fulfillment is concerned P.W.4 has admitted in paragraph-8 of his evidence that he has not made those statements before the police. Thus, the value of the evidence of P.W.4 is that he could not be a witness either on the demand or on its non-fulfillment and further on the story of torture as was propounded by him. Not only that P.W.4 has stated in paragraph-7 that he had given his statement on account of having heard about the stories on all aspects of the matter. Likewise, in paragraph-9 of his evidence P.W.4 was put 10 a specific question as to whether his niece used to fall ill and he denied, whereafter the defence has drawn his attention to his previous statement made before the police which was of the effect that he had made a statement before the police as if the deceased used to fall ill and also that in the previous night of the occurrence the deceased had a massive stomach pain and she could not survive that. P.W.5 is Rajendra Kumar Agrawal alias Rajesh Kumar Agrawal and he was the son- in-law of the sister of the wife of the informant, his evidence I cannot accept or I cannot use for sustaining the conviction for many reasons. The first reason is that he has admitted in his evidence in paragraph-8 that his house was situated at a distance of fifty kilometers from Islampur and after having been informed by the informant, he came to accompany him to the village of the appellants. Not only that he has admitted that he gave the statement during investigation after 4-5 months of the occurrence. However, it may appear from the evidence of P.W.5 in paragraph-6 that when he and the informant reached the house of the appellants the police was very much present there, still this witness was not making any statement regarding the story of demand of any money or holding of Panchayati or ill-treatment or torture of the lady. P.W.7 is the son of the informant and he was 11 also supporting the prosecution case but again his statement also appears contrary to his previous statement which was made before the police as may appear from paragraph-21 and the evidence of the investigating officer in paragraph-22 of P.W.6, the I.O. of the case. 12. Thus, what I find from the oral evidence is that the evidence of the prosecution on the demand and torture of the lady on account of non-fulfillment of the demand for Rs.1,00,000/- appears very shaky. The witnesses have stated that there were some Panchayati convened for settling the dispute. None of the panches who could have participated in that Panchayati was brought to depose to that effect. Not only that the particular statement of witnesses that panchayati was held appears not made. During the course of investigation and as such improvement probably made by the informant at the very time of giving his fardbeyan. Witnesses have consistently stated that the deceased was a patient of many diseases including asthma and paralysis also. The initial information which was received by the informant and other witnesses who have admitted to have received the information was that the condition of the deceased was highly critical and they rushed to the village and house of the appellants. Every witnesses have stated that he did not find any 12 mark of violence on the dead body which was lying on the floor of the house on a bed, rather they have stated that they learnt from some source that she was ill in the previous night also. The evidence of the two doctors P.Ws.8 and 9 indicates that there was no external or internal injury found on the dead body and the doctors failed to opine about any particular reason which could have caused the death of the deceased. It appears that there was no clinical reason found by the two doctors due to which the deceased could have died and this was the reason in view of the allegations coming from the informant, that the viscera of the deceased were preserved. 13. On consideration of the evidence of prosecution, I find strong probability emerging from it that the deceased was a chronic patient of multiple diseases and her condition had deteriorated suddenly in the previous night and, as such, the information was sent to him. One witness, like, P.W.2 admitted that he and the informant went to the house of the appellants and found the dead body and further participated in the cremation of the dead body. If this is the truth which emerges from the evidence of the prosecution witnesses, then it was a case in which the charge under Section 304B IPC was not established. 14. In the result, the three appeals are 13 allowed by setting aside the judgment of conviction and the order of sentence passed upon each of the three appellants. Appellants Saroj Devi and Sabarmal Agrawal are on bail. Both of them shall stand discharged from the liabilities of their respective bail bonds. As regards appellant Deepak Kumar Agrawal, he is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 22nd day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)