IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.992 of 2006 Against the judgment and order dated 30.11.2006 passed by Additional District and Sessions Judge, Fast Track Court No. IInd, Darbhanga in Session Trial No. 316 of 2004 and S.T. No. 318 of 2005. 1. Kailu Yadav son of Late Anuplal Yadav. 2. Ram Bhajan Yadav, son of Kailu Yadav. 3. Maya Devi Wife of Kailu Yadav. 4. Nirmala Devi Wife of Ram Bhajan Yadav. 5. Kalebri Devi @ Kaleshwari Devi wife of Lal Yadav, all resident of village Baruara, P.S. Bahadurpur, District-Darbhanga.. Appellants Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 5 of 2007 ========================================================== Ram Lal Yadav son of Sri Kailu Yadav, resident of village Baruara, P.S. Bahadurpur, District-Darbhanga. .. .... Appellant. Versus The State of Bihar .... Respondent. ========================================================== = Appearance : (In CR. APP (SJ) No. 992 of 2006) For the Appellant/s : Smt. Rina Sinha, Advocate. For the Respondent/s : Shri. S.N. Prasad, A.P.P. (In CR. APP (SJ) No. 5 of 2007) For the Appellant/s : Shri. Ranbir Singh, Advocate. For the Respondent/s : Shri. S.N. Prasad, A.P.P. ========================================================== P R E S E N T THE HON’BLE SHRI. JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The two appeals have been preferred by the accused persons of Sessions Trial No. 316 of 2004 and Sessions Trial No. 318 of 2005 who were put on trial by the learned Additional Sessions Judge-Cum- Presiding Officer, Fast Track Court II, Darbhanga by being jointly Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 2 charged under Sections 304B/34 and 201/34 of the Indian Penal Code. The appellants were convicted under both the charges and each of them was directed to suffer rigorous imprisonment for ten years and three years respectively on the two counts with further direction that the sentences inflicted upon each of the appellants shall run concurrently. 2. There is no dispute in the fact that Parmila Devi was married to appellant Ram Lal Yadav. The prosecution stated that the marriage had taken place some times in the year 1996-97. It is also not in dispute that deceased was in the house of the appellants on 09.02.2004 by virtue of a document which was filed by one of the appellants. It is also admitted that the deceased had died on 09.02.2004 and further that the dead body was cremated by the appellants. 3. What is disputed by the informant P.W.6 in the report Ext. 3 is that his daughter used to complain of being ill treated and tortured because the accused persons wanted a motorcycle and some cash as dowry. It was stated that P.W. 2 Uttim Lal Yadav had gone to meet his sister Parmila Devi in the house of the appellants and during that meeting also the deceased had complained that she was being ill treated by the accused persons. Due to non-fulfillment of demand of cash and motorcycle, they were further threatening her to be killed her if the Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 3 demand was not met. It is stated that the informant and P.W. 1 Sikandar Yadav, his another son, had gone to Babadham(Deoghar) and having returned from there they could learn about the above incident and as such P.W. 1 Uttim Lal Yadav went to the house of the appellant. No one was found present there. It was stated that even the cattle had also been moved out of the place which was quite deserted. It was learnt from the neighboring persons that the deceased was killed and the dead body had been cremated. 4. On the basis of the Ext. 3 the First Information Report of the case (Ext.2) was drawn up and the investigation was undertaken by police which sent up the appellants for trial which culminated into conviction and sentence inflicted upon the appellants in the terms indicated above. 5. The defence of the appellants was that in fact, after the death of Parmila Devi they had sent information about it to P.W.6 who came along with others and wanted to take the ornaments and other belongings of Parmila Devi which was not agreed to by the appellants, as a result of which, the informant and others forced their entry into the house of the appellants so much so that the cows were also taken away, some of which were seized by the police. The defence of the appellants is Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 4 based on a police case i.e. Bahadurpur(Phekla O.P) P.S. Case No. 59 of 2004 (Ext. A) and the seizure list prepared by the police in that case (Ext.B). 6. In support of the charges, the prosecution examined as many as eight witnesses out of whom P.W. 1 Sikandar Yadav and P.W.2 Uttim Lal Yadav were sons of P.W. 6 and brothers of the deceased. P.W. 4 Ram Ashish Yadav was the uncle of the deceased whereas P.W.5 Chana Lal Yadav was her grand father P.W. 7 was a formal witness. 7. It was contended by the learned amicus curiae who have appeared in each of the two appellants that the evidence of the prosecution regarding the period since the deceased was married to appellant Ram Lal Yadav is not certain. It was further contended that the whole evidence is based on hear say and some of the important witnesses, like, the mother of the deceased has not been examined. P.W. 6, the informant has admitted in paragraph 22 that the story of ill treatment and torture on account of non-fulfillment of the demand of dowry was conveyed to him by the deceased through her mother. It was contended that the defence of the appellants was probablised on account of some of the documents like Ext.B which is the seizure memo in respect of recovery of two oxen which were recovered from the house of one of the Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 5 relatives of the informant probabilizing the defence version. 8. As regards the demand of a motorcycle or cash no witnesses has specified as to what was the amount which was being demanded by the appellants as dowry from the deceased or from any of the witnesses. The witnesses who have come to support the above story did not state clearly that the demand was placed before any individual or that any of the appellants had placed the demand personally to all of the P.Ws. The evidence of witnesses is in general terms that demand for a motor cycle and cash was made by the appellants and that demand was made to the deceased who used to convey to them as and when she happened to be in their house. If the evidence of P.W. 1 was indicating that the deceased had come on 3-4 occasions to his house and on all those occasions she had narrated about the demand of a motor cycle or cash; P.W. 6 the father of the decease and the informant had stated that the demand of the appellant was conveyed to him and that appears the solitary evidence. Not only that there is complete silence on the details as to when the demand was conveyed by the accused persons. It is admitted by P.W.1 in paragraph 9 that when the marriage had been solemnized nothing had been demanded by the accused persons and further that the marriage had been solemnized in 1996-97. If nothing was demanded at Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 6 the time of solemnization or finalization of the marriage and again if the marriage was solemnized in a temple then this Court could be inclined to take a view that the marriage was dowry-less and the same was performed with all grace, which was agreed by both the parties to the marriage. In that back ground the subsequent non-specified story of demanding cash or a motorcycle appears very difficult to be believed by any reasonable person. 9. So far as the evidence on marriage of the deceased is concerned, P.W. 1 has stated in paragraph 11 that it had been solemnized in 1994, other witnesses have not stated any particular year or date but they stated as if the marriage had been solemnized under 10 years or it may be apparent from the evidence P.W.2, who has stated that he was married 10 years ahead of the occurrence and his sister was married two years after his marriage and thus on the date of occurrence as per P.W.2 Uttim Lal Yadav, the marriage of the deceased was solemnized eight years prior to the occurrence. The father of the deceased stated that the marriage was solemnized above seven years prior to the occurrence. Thus, what I find is that the story of demand of dowry being doubtful, the story as regard the period of marriage which is statutorily seven years also appears not established to the satisfaction of the Court. The Patna High Court CR. APP (SJ) No.992 of 2006 dt.25-07-2011 7 prosecution has failed on these two important issues. These two important ingredients constitute, inter alia, the offence of dowry death. Even if one could presume that the prosecution succeeded in establishing the charges to the hilt one cannot escape considering the documents Ext. A and B which probabilities some part of the defence version and creates a dent in the prosecution case entitling the appellants to acquittal. 10. Having said as above, I find that it was a case in which the prosecution had not succeeded in proving the charges to the hilt as a result of which the appellants deserved to be acquitted after being given benefit of doubt which is hereby extended to each of them. The judgment of conviction and the order of sentence passed against the appellants are hereby set aside. Five appellants in Criminal Appeal No. 992 of 206 are on bail they will be discharged from the liabilities of their respective bail bonds. As regards appellant Ram Lal Yadav, he continues to be in custody. As such, is directed to be released from jail if not wanted in any other case. Patna High Court, Patna. Dated 25th July, 2011 N. A. F. R./Devendra ( Dharnidhar Jha, J.)