1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.757 of 2006 Against the judgment of conviction and order of sentence dated 26.8.2006 and 30.8.2006, respectively, passed by the Additional Sessions Judge, Fast Track Court-II, Rohtas at Sasaram, in Sessions Trial No. 315 of 1990. - - - - 1. Rajendra Choudhary @ Indar Choudhary, son of Narain Choudhary 2. Mahendra Choudhary son of Narain Choudhary 3. Narain Choudhary son of Pragash Choudhary 4. Manakiya Devi wife of Narain Choudhary All residents of Village Kamaranganj, P.S.Dehri (Indrapuri), District Rohtas .... .... Appellants Versus The State Of Bihar .... .... Respondent Appearance : For the Appellants : Shri Krishna Prasad Singh, Sr. Adv. Shri Manindra Kishore Singh, Adv. Shri Manish Kumar, Adv. Shri Mithilesh Kumar Singh, Adv. For the Respondent : Shri Ajay Mishra, A.P.P. - - - - P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The present appeal arises out of judgment dated 26.8.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-II, Rohtas at Sasaram, in Sessions Trial No. 315 of 1990. The appellants, by the impugned judgment, were held guilty of committing the offence under Section 304 B/34 of the Indian Penal Code and by order of sentence dated 30.8.2006 each of them was directed to suffer rigorous imprisonment for ten years. 2. The occurrence appears taking place in the night intervening 19th and 20th of April, 1989, sometimes in the mid night. The informant Sarju Choudhary, P.W. 6, came to Dehri Police Station, to lodged his report 2 (Ext.3) in which he stated that he was informed by one Mahesh Choudhary ( not examined) that his daughter was ill and she wanted to see him. It was further stated by P.W. 6 in his fardbeyan that the above message was transmitted to him through Mahesh Choudhary by his Samdhi, appellant Narain Choudhary and, accordingly, he came to Dehri and went to the clinic of Dr.Bose to find that his daughter, Chanmaniya Devi was burnt badly and her whole body was bandaged and further that saline dripping was being administered to her. The deceased did not speak anything as she was not able to do it and all her family members, i.e., the four appellants were present there in the clinic and they also could not point out as to how Chanmaniya Devi happened to be burnt. It was stated that the appellants were demanding a tape recorder and was asking the deceased to bring it from her parents’ house, else, she would be killed. As per the informant, the above demand was being conveyed to him and his wife by the deceased. The informant was stating that he was a poor fellow and financially not well off to give the tape recorder and, as such, the appellants were not bringing his daughter back. It was stated that his daughter was taken away by appellant Rajendra Choudhary in the month of Magh and, lastly, the incident occurred. 3. The case appears investigated into and the appellants were sent up for trial which ended in their conviction and sentence as stated at the very out set of the present judgment. 4. During the course of trial, eight witnesses were examined, out of whom P.W. 1 Kanhaiya Choudhary, P.W. 2 Ram Raj Choudhary and P.W. 5 Moti Choudhary stated that the deceased was killing bugs from her bed and had put on a dhibri from which she caught fire in her sari and she was 3 burnt completely. It was further stated by the informant that she was brought by the appellants to the clinic of Dr. Bose where she was hospitalized and an information was duly sent to the informant( P.W.6) who along with others came and on her death, participated in the cremation of the dead body. P.Ws. 3 and 4, namely, Raja Ram Choudhary and Kapildeo Gosai were tendered for cross examination. 5. The most important aspect of the evidence of P.Ws. 1,2 and 5 is that they were not supporting the prosecution case on any of its material particulars, specially, on that part of the case by which the allegation was appearing against the appellants that they were demanding a tape recorder and on account of not getting the same were threatening the deceased that she would be killed. But, in spite of not supporting the case the three witnesses were not declared hostile so as to be cross examined so that their credibility could be questioned. Thus, the evidence of P.Ws. 1,2 and 5 remains intact and unchallenged. 6. The solitary support comes from P.W. 6 Sarju Chaudhary and he has stated all the facts which are contained in the F.I.R. Besides, he stated that after reaching Dehri and fining his daughter admitted in the clinic of Dr. Bose, he along with his wife and wife of his younger brother stayed for some time there and thereafter they went to Shivganj Mohalla in the township of Dehri to meet the B.D.O. of Obra, namely, Bimal Chaudhray, who happened to be related as nephew to the informant and he consulted him as to what was to be done under the circumstances. It is admitted by P.W. 6 that the above named B.D.O. accompanied the informant from Obra to Dehri and also met the Officer-in-charge of Dehri Police Station and talked to him and, thereafter, the Officer-in-charge 4 registered a case after recording the statement of P.W. 6. 7. Thus, what appears from the above facts is that the informant was not ready to lodge a case out of his own free will, rather there was someone who was influencing everything for him, may be his own mind also for lodging a report. The B.D.O. was meeting the Officer-in-charge and thereafter the case was being registered. The informant stated that he had gone to meet the B.D.O., Obra so as to consulting him as to how to proceed in the matter and then he went to the Police Station to lodge the case. But, when I went through the evidence in cross examination of P.W. 6 he appears to me still living under a circumstance of suspicion as to whether the story which was propounded by him was the truth or the truth could be something otherwise. This appears evidently clear from the last line of paragraph 2 of his deposition when P.W. 6 stated that as he saw his daughter burnt so he put down the story of the lady being burnt by the accused persons. Further, the evidence of P.W. 6 in paragraphs 3 and 4 lead to a conclusion that relationship between the deceased and the appellants was quite cordial. She was being looked after well. The deceased was not complaining against the accused persons to her mother who is sated by P.W. 6 to have conveyed to him about the threat which was held out by the appellants if the tape recorder was not given to them. She was not coming before the court to state that she had indeed conveyed any such fact as told by her by the deceased to the informant. Not only that, there is complete absence of evidence on torture of the lady. Even if I were to accept the evidence of P.W. 6 to uphold the conviction, if the relationship between the deceased and the appellants appeared so cordial and if there was lack of evidence indicating that the lady was being 5 pestered and, thereby, tortured for any particular demand of dowry which resulted in her death under the circumstances not natural then even if the marriage was solemnized within seven years by appellant Rajendra Choudhary alias Indar Choudhary to the lady appears of no consequence. All ingredients not being established by evidence, the conviction of the appellants under Section 304 B appears quite illegal and unsustainable in law. 8. In view of the above discussions, I find merit in the appeal and the same is hereby allowed by setting aside the judgment of conviction and order of sentence passed against the appellants as a result of which the appellants are acquitted. 9. Appellant Rajendra Choudhary @ Indar Choudhary is still in custody. He is directed to be released forthwith, if not wanted in any other case. The other remaining appellants, namely, Mahendra Choudhary, Narain Choudhary and Manakiya Devi are on bail. They shall stand discharged from the liability of their respective bonds. ( Dharnidhar Jha, J.) Patna High Court, The 12th July, 2011 Kanth/N.A.F.R.