Criminal Appeal (SJ) No.434 of 1998 **** Against the judgment, dated 08.12.1998, passed by Sri Saket Bihar Ambastha, Additional Sessions Judge, VI, Rohtas at Sasram, in S. Tr. No. 131 of 1983 **** Savitri Devi, wife of Gulab Singh, resident of village Fakrabad, P.S. Chainpur, district Rohtas, presently Kaimur (Bhabua) .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mrs. Vimla Kumari, Adv. as Amicus Curiae For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’ BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 306 of the Penal Code and has been sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged in the fardbeyan that on 10.02.1982 at about 12.30 p.m., the informant got information that his younger sister has died at once and then he along with his father proceeded to village Fakrabad, but, in theway at village Darauli met with a jeep bearing registration no. PHA 605 on which the sasural 2 people of the deceased were carrying the dead body and they disclosed that she died out of the abdominal pain. The informant doubted and reported the matter to the Officer-in-Charge, Bhabhua, and the said fardbeyan forwarded to Officer-in-Charge, Chainpur Police Station for instituting a case and then Chainpur Police Station under the district of Rohtas lodged the first information report for offence under Sections 302, 210 and 328 of the Penal Code. 4. During the investigation, the charge sheet submitted, cognizance taken and the case committed to the Court of sessions. The charge was framed for offence under Sections 328, 302/34 and 176 of the Penal Code against the appellant as well as others. 5. During the trial nine witness examined, who are P.W., Vijay Shanker Singh, P.W. 2, Virdha Kumari, the mother of the deceased, P.W. 3, Narendra Kumar Singh, P.W. 4, Ram Sakal Singh, P.W. 5, Dulari Khabarin, P.W. 6, Mathuri Gauri, P.W. 7, Dr. B.D. Bhagat, who conducted the autopsy, P.W. 8, Ramashish Choudhary and P.W. 9, Kedar Nath Singh. The documentary evidence adduced are Exhibit 1, signature on inquest report, Exhibit 1/1 is the signature on the seizure list, Exhibits 2 and 2/1 as well as 5 and 5/1 are the letters alleged to be written by Indu Devi, the deceased, Exhibit 3 is the written report, Exhibit 4 is the endorsement on the report, Exhibit 5 protest petition, Exhibit 6 a photo stat copy of letter, Exhibit 7 is the post mortem report, Exhibit 8, formal first information report and Exhibits 9 and 9/1 are case diary. 6. However, there were nine persons facing trial before the 3 trial Court and the trial Court taking into consideration the evidence acquitted eight out of the nine persons facing trial and convicted the appellant under Section 306 of the Penal Code, who is the mother-in- law of the deceased on the evidence primarily that the deceased died out of ailment as apparent from the viscera report and the two letters Exhibits 5 and 5/1 indicate the complicity of the appellant and, hence, convicted the appellant under Section 306 of the Penal Code and sentenced as stated above. 7. P.Ws. 1, 2 and 3 have come to support the prosecution case, P.Ws. 4, 5 and 6 have been declared hostile and have not supported the prosecution case and asserted that the marriage was solemnized about fourteen years back, P.W. 7 is the doctor and P.Ws. 8 and 9 have only formally proved. 8. P.W. 1 in his evidence stated that he got the information of the murder of his daughter from his elder brother, Narendra Kumar Singh, and he proceeded with his brother, met in the way with jeep with the accused persons, Gulab Singh and Krishna Singh, and they disclosed that she died out of abdominal pain and then he informed police, the police came and take the dead body in possession for post mortem. 9. P.W. 2 is mother of the deceased and she has come to say that the sasural people used to address her as a ‘banjh’. They used to assault the deceased. The letters, Exhibit 5 and 5/1 disclose about the assault. However, no letter has either been produced or proved by her to indicate that she received any letter disclosing the subjecting 4 cruelty on the deceased. However, in cross examination, it has been stated that after marriage she came naiher on two occasions. The last time when she visited her is about three years prior to her death. She has, further, stated in between this period of three years she had met with Indu Devi at Varanasi about four months back to the occurrence. She has, further, stated that 3-4 days prior to the occurrence she had sent his son, Praduman, for Vidai of Indu Devi, but, the sasural people did not allow to send her. Then she, again, sent Dhiraj Nai, but, he was also returned without fixing the date of Vidai, however, neither Praduman nor Dhiraj Nai has been examined to prove this part. 10. P.W. 3 is the informant and has stated that he got information and then he proceeded along with his family members, his brother, Vijay and father and maternal uncle, and then saw a jeep coming with the body of the deceased. It was apprehended. The person on vehicle disclosed that deceased died at once. Hence, the case was lodged. He has, further, stated in his evidence that the deceased was subjected to cruelty by assault and calling her ‘banjh’. Indu Devi had informed her mother and bhabhi by letter. He has, further, stated that 5-6 days prior his younger brother, Praduman, had been to sasural, but, Praduman returned without vidai. He has, further, stated in his evidence that Praduman had brought a letter of Indu Devi, which was written to her bhabhi, i.e., wife of this witness and proved Exhibits 5 and 5/1. But, the person, who brought the two letters from the deceased, Praduman and Dhiraj Nai has not been examined, who were the best persons, who met just few days prior to the occurrence and 5 there is no explanation for the same. Hence, the prosecution has withheld the best evidence. P.W. 7 is the doctor, who has suspected the case of poisoning and sent the viscera for chemical examination and viscera report is Exhibit 6, which mentions that the aldrin was detected in viscera, which is a killing paste and highly poison. 11. However, the case hinges on the evidence of only P.Ws. 1, 2 and 3. P.Ws. 1, 2 and 3 are not eye witnesses to the occurrence though it has come in evidence that the deceased died out of poisoning and the viscera report confirm it, but, there is no evidence that who gave her poison. During the evidence no poison was recovered as there is no evidence that poison was recovered from the possession of Indu Devi or from any other accused person. However, the investigating officer in this case has not been examined and, hence, there is no evidence at all that who poisoned the deceased. The prosecution witnesses also did not lead any evidence on poisoning the deceased except bald statement that she was poisoned. 12. The evidence about the torture or subjecting cruelty does transpire from the evidence of the mother as well as two letters formally proved as Exhibits 5 and 5/1. The persons who brought the letters not examined. It has come in evidence of P.W. 2 that the deceased was subjected to cruelty, but, the evidence of P.W. 3 in the cross examination that the deceased had been to sasural and she had come naiher from sasural about three years prior to the occurrence and she has only opportunity to meet her about four months back at Varanasi and has stated that she learnt about the subjecting to cruelty 6 by letters, however, no letters have been proved by the P.W. 4. She has, further, stated that she had sent her son, Praduman, and then to Dhiraj Nai for Vidai of the deceased, however, neither Praduman nor Dhiraj Nai examined in this case to support the evidence of P.W. 3. Two letters have been proved which are Exhibits 5 and 5/1 purported to have been written by the deceased, one addressed to her sister and other addressed to bhabhi, neither sister nor bhabhi have been examined and it has come in evidence that these letters brought by Praduman, but, Praduman has also not been examined. The two letters, however, only mention that she is tired off her mother-in-law and no one should give woman like her mother-in-law. However, there is no act of either commission or omission has been alleged against the mother-in-law that on what act of commission or omission of the mother-in-law she is being tired off. The letters Exhibits 5 and 5/1, which have been proved part of the letter was cut down and, hence, some part appears to have been taken away. There is nothing in the letters to transpire that the act alleged by the deceased against the mother-in-law to have compelled her or to drive her and, hence, the evidence of P.Ws. 3 and 4 as well as the two letters does not establish that the deceased was subjected to cruelty to such a nature as to drive her to commit suicide. However, the evidence of suicide has also not been established and, hence, taking into consideration the entire facts and circumstances the prosecution has not been able to prove the ingredients of offence under Section 306 of the Penal Code to record a conviction. More over, the charge was framed under Sections 302, 328 and 176 of the Penal Code. However, 7 the conviction has been recorded under Section 306 of the Penal Code on the pretext that if charge has been framed under Section 304B of the Penal Code then a conviction can be recorded under Section 304B of the Penal Code, however, it is strange that no charge under section 304B of the Penal Code has been framed. 13. However, having regard to the facts and circumstances that subjecting to cruelty has not been established of cruelty to infer that the deceased was compelled to commit suicide by the said act of commission or omission. However, the poisoning of the deceased having been established as per the medical evidence, but, thee is no evidence to suggest that who administered poison to Indu Devi and there is no evidence that evidence regarding subjecting to cruelty of nature compelling the deceased to commit suicide and, hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and the appellant is given the benefit of doubt and the order of convicted recorded under Section 306 of the Penal Code is hereby set aside the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 29th day of August 2011, N.A.F.R., S.A.