IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.528 of 2007 - - - - Against the judgment of conviction and order of sentence dated 5.4.2007 and 12.4.2007, respectively, passed by Additional Sessions Judge, Fast Track Court No.-IV, Muzaffarpur, in Sessions Trial No. 476 of 1994. - - - - ==================================================== 1. Krishna Kumar Kranti 2. Mrityunjay Kumar Bboth sons of Satyendra Narain Sah, residents of Village Karja, Police Station Karja, District Muzaffarpur. .... .... Appellants Versus The State Of Bihar ... .... Respondent with Criminal Appeal (SJ) No. 534 of 2007 1. Satya Narain Sah, son of Late Bihari Sah 2. Lalwati Devi, wife of Satya Narain Sah 3. Sushanti Devi, daughter of Satya Narain Sah All residents of Village Karja, Police Srtation, Karja, District Muzaffarpur. .... .... Appellants Versus The State Of Bihar .... .... Respondent ==================================================== Appearance : (In both the appeals) For the Appellants : Shri Rana Pratap Singh,Sr. Adv. Shri Ashok Kumr Singh No.3 Shri Rishi Raj, Adv. For the Respondent : Shri S.N.Prasad, A.P.P.. ==================================================== CORAM: HONOURABLE SHRI. JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The two appeals arise out of judgment dated 5.4.2007 rendered by the learned Presiding Officer, Fast Track Court .IV, Muzaffarpur, in Sessions Trial No.476 of 1994, by which five appellants in two appeals were held - 2 - guilty of committing offence under Section 304B of the Indian Penal Code. The appellants after being heard on sentence on 12.4.2007, were directed to suffer rigorous imprisonment of different durations. Appellant Krishna Kumar Krinti was directed to suffer rigorous imprisonment for ten years, whereas for the same offence the remaining four appellants were directed to suffer rigorous imprisonment for seven years. The appellants have come up before this Court through these appeals to challenge the correctness of judgment of conviction and proprietness of order of sentence. 2. Some of the facts are admitted that the deceased Savitri Devi, who was the sister of P.W. 11 Shyam Shankar Gupta, the informant, was married to appellant Krishna Kumar Kranti on 13.6.1990. It is also admitted that after marriage she came with her husband to her matrimonial house and was living there with him and the remaining appellants. She had gone back to her parents’ house on more than three occasions and had come back to her matrimonial house on as many occasions. 3. The allegation is that whenever she came to her parental house, she was complaining of being ill-treated and tortured because the appellants were asking her to bring articles, like, motorcycle, a Godrej Almirah, other furnitures and mattresses as additional dowry. The informant stated that on account of his financial constraints he could not fulfil the demand and that further compounded the malady of the lady as she was more ill- treated and tortured. He was also stating that she was not being allowed to sleep on any furniture, rather, was forced to sleep on ground by being told by the appellants that unless her brother had fulfilled the demand for articles she was to lead a life of that class. - 3 - 4. The informant stated that he met the accused persons on many occasions and attempted to persuade them not to treat the lady with cruelty as he was not in a position to fulfil the demand and as soon as his financial constraints had eased up he would attempt to do it. 5. As an instance of ill-treatment and torture, P.W. 11 stated that one month prior to the occurrence his mother fell seriously ill and she expressed her desire to see the deceased. The informant went to the house of the appellants at Village Karja and requested them to allow the deceased to accompany him but, they were simply not ready for that and clearly stated that unless the articles had been given, there could not be any question of sending the deceased back to his house and further that the deceased was to be treated more with cruelty, if they so desired. The informant stated that he was not even allowed to meet the deceased, but any how he could meet her when he found the lady in a precarious condition. She wept and stated to him that she would not be allowed to survive by the appellants and their other family members. The informant stated that his efforts to pursue the appellants to allow the deceased to accompany him failed. 6. The informant stated that on 27.5.1992 he got an information at about 3 P.M. that appellant Satya Narain Sah, who was the father-in-law of the deceased Savitri Devi, was in a serious condition and was hospitalized in Sadar Hospital, as a result of which he being accompanied by Balmiki Kumar( P.W.5) his co-villager, came to Sadar hospital, Muzaffarpur, to find that appellant Satya Narain Sah was quite hail and hearty and was moving on the verandah of the hospital and he, on the other hand, pointed out to the informant to have a glance of his sister who - 4 - was in the hospital bed. He went and found his sister lying on the bed in an unconscious state whereafter he shifted her to Medical College Hospital, Umanagar where she was admitted and was being treated but, lastly, in the afternoon of the previous day of lodging the report, i.e., 28.5.1992 , as soon as the deceased had breathed her last, the appellants and their other family members ran away from the hospital as a result of which he obtained the dead body after the Post-mortem Examination and took the same to his house for cremation. 7. On the basis of the written report(Ext.6) the F.I.R. of the case (Exrt.9) was drawn up by P.W. 14 A.S.I. Sriniwas Yadav who also took up the investigation of the case. He visited the place of occurrence and recorded the statements of witnesses and after obtaining Post-Mortem Examination report sent up the accused persons for trial. 8. P.W. 14 has admitted in his cross-examination that inquest report was bearing the signature of appellant Krishna Kumar Kranti, as may appear from paragraph 10 of his evidence. Likewise, appellant Krishna Kumar Kranti had also given his fardbeyan but no case, even of an unnatural death was registered and investigated into. So far the description of the place of occurrence was concerned, the story of the deceased being burnt while cooking due to having caught fire from the kerosene stove appears not established by the finding recorded by P.W. 14 who stated that there was no smell of kerosene anywhere in that room and probably the stove was placed after cleaning the surface of the room. He was further stating in paragraph 3 of his evidence as if the occurrence had taken place out side that particular room in the open where the container of kerosene oil was found but again there was no sign of struggle or violence at that - 5 - particular place also. 9. The defence of the appellants has also been negated by the evidence of P.w. 14, which I have just noted, but still the defence was that the relationship of the deceased was very cordial not only with her husband but with the other members of the family as well and after having caught fire, she was rushed to S.K.M.C.H, Muzaffarpur, by appellant Krishna Kumar Krianti and other appellants and due information was sent about the incident to the informant who came with others and remained in the hospital till the deceased died and with some ulterior motive he filed the written report after the deceased succumbed to burn injuries. 10. The prosecution examined fifteen witnesses during the course of trial out of whom P.W. 6 Ram Binod Prasad Gupta and P.W. 10 Sheo Sah were formal in character whereas P.Ws. 7,8,9 and 12 were declared hostile on account of having not supported any part of the case. P.W. 13 was Dr. Mumtaz Alam who held the post-mortem examination on the dead body of Savitri Devi and found that there were many ante-mortem burn injuries all over the body to the extent of 95 per cent but there was no sign of any violence being inflicted upon the deceased prior to being burnt as no internal organ of the deceased was found bearing any evidence in that behalf. The viscera was preserved because bruise on the lips of the deceased was probably indicative of the fact that the lady might have consumed poison before setting herself at fire. As a result of the above fact, the Doctor was giving no certain opinion as regards the cause of death of Savitri Devi and he sent the preserved viscera for chemical examination, the report of which was eluding the Court till it delivered the judgment. - 6 - 11. Out of the remaining witnesses, P.W. 1 Durga Devi was the mother of the deceased, whereas P.W. 2 Mina Devi was her Bhabhi being wife of P.W. 3 Rama Shankar Sah. P.W. 4 Jagjeet Kumar was producing two letters which were written by the deceased and which have been marked Exts. 1/i and1/ii. P.W. 5 Balmiki Kumar was giving evidence that he was at Village Karja on the day of occurrence and he was requested by the appellants to take a jeep and to go to the house of the informant to inform that appellant Satya Narain Sah was seriously ill and was hospitalized and to bring him to hospital and when he along with the informant and others reached Sadar Hospital, Muzaffarpur, he found appellant Satya Narain Sah moving on the verandah of the hospital who asked them to look inside the hospital ward where they found the deceased Savitri Devi lying completely being burnt in a bed. P.W. 14 is the Investigating Officer, whose evidence I have already discussed in detail. P.W. 15 was Shri Ram Jatan Pal, who was the Magistrate of Ist Class in Muzaffarpur, who had recorded the statements of the witnesses under Section 164 of the Cr. P.C. which have been marked Exts 11/A and 11/B series. 12. It appears that the defence also examined three witnesses, like, D.Ws. 1, 2 and 3 and they have stated that the deceased was injured in accidental fire and was shifted to hospital for treatment and she died there. 13. It was contended that the prosecution was guilty of suppressing some of the important material evidence because the innocence of the appellants could have been proved in the present case if those evidence had been produced. It was done with the only motive of giving credence to the prosecution claim that as soon as the deceased had succumbed to her - 7 - injuries, the accused persons ran away from the hospital, whereas the fact of the matter was that the appellants were very much present in the hospital and appellant Krishna Kumar Kranti had even signed the inquest report but that document was not allowed to be brought in evidence. Likewise, the fardbeyan which was given by appellant Krishna Kumar Kranti indicating the cause due to which the deceased had been injured was also withheld by the prosecution so as not to allow the defence explanation to come on the record. The contention was that the evidence of witnesses, who were never eye witnesses to the occurrence, varies from each other and they appear introducing new facts. The other circumstance which was pointed out by the learned counsel appearing on behalf of the appellants was that the informant P.W. 11 was present in the hospital right from the date the deceased was shifted to the hospital. He was also receiving the dead body but what was the reason that he was feeling shy and not filing the report on the date on which the deceased had died or just thereafter and was sitting tight to file the report on 29.5. 1992. It was contended that because the informant was pondering over the situation for creating facts for filing the report that he was not coming forward with the report. The evidence of the prosecution, it is contended, in the form of two letters Exts. 1/i and 1/ii indicated that the relationship of the lady with her husband and his other family members were quite cordial and she had no reason to be tortured or harassed for any reason, rather, the contents of the letters indicated that she was quite happy and very respectful to the appellants. It is a circumstance which improbabilises the prosecution story. 14. It is admitted by the witnesses that they received some - 8 - information from the appellants about Savitri Devi being hospitalized. The story which was put forward by them was that a message was sent to them that appellant Satya Narain Sah was seriously ill and hospitalized. But, when they reached Sadar Hopsital, Muzaffarpur, they found him moving on the verandah of the hospital who stated to the informant and his other companions to look inside the ward of the hospital when they found Savitri Devi lying in a bed in burnt condition. This is one circumstance which has been highlighted by the learned trial Judge also as one of the proofs of guilt of the appellants. It might be a fact or it may not be, as has been stated by the witnesses. But, evidence of P.W. 5 Balmiki Kumar indicates that the appellants had asked him to inform the informant and others about the serious condition of Savitri Devi. It does not appear unusual. Such a thing is often experienced in the rural area when if any untoward incidence happens in some one’s family then generally the reality of the happening is suppressed and the message is conveyed in some concealed manner. Such incidents are generally brought into the notice of directly related persons by obliquely pointing out that the some one, if it could be a case of death, was seriously ill or had met with an accident and, as such, was seriously injured and the relatives either get the real message by inferring any bad news or simply go out of curiosity and anxiety to the place where such an injured/deceased could be found and in most cases go directly to the house of the victim of the offence to have the correct information. The area from which this case has been reported may be such an area where the message of all events may be found conveyed in a wrapped up manner than by presenting the bare facts directly about the incident regarding the death of a near and dear ones. In - 9 - every event this could not be said that the deceased was burnt and she was left alone to fend for her. This, rather, appears admitted by the prosecution that the deceased had been brought to Sadar Hospital, Muzaffarpur where she was admitted by the prosecution. However, the claim of the defence is that she was brought firstly to Sadar Hospital, Muzaffarpue, from where she was referred to S.K.M.C.H., Muzaffarpur, and, accordingly, the deceased was shifted by the appellants to that very Medical College Hospital. The prosecution allegation is that they had brought the deceased to the Medical College Hospital, Muzaffarpur, and during her treatment there, she died when the appellants ran away from the hospital. This fact appears incorporated in the allegation and that appears baseless from the evidence of P.W. 14 the Investigating Officer of the Case. He was admitting in paragraph 10 of his evidence that appellant Krishna Kumar Kranti had given statement in SKMCH where the deceased had been admitted and that statement had been recorded but no case, even of unnatural death, was registered for being investigated into. He was also stating in the same paragraph that appellant Krishna Kumar Kranti had witnessed holding of inquest upon the dead body and that was the reason that his signature was appearing on the inquest report. It may be pointed out that the inquest report was not brought by the prosecution as part of its evidence. It was only when P.W. 14 was being cross-examined by the defence that those facts were brought on record. The reason does not appear in favour of the prosecution for suppressing the two documents. The non-production of the statement of Krishna Kumar Kranti and the inquest report before the trial court was only that if the two documents had been perused by the trial court, the claim of the - 10 - prosecution that the appellants ran away from the hospital and they had not taken any care of the deceased after she had been injured by flames of fire, could have been falsified. That particular attempt by the prosecution for not producing the two documents, to me, appears a serious event of concealing important evidence and facts, so that fabricated fact could be included for getting the appellants punished. The informant’s assertion about presenting correct facts was also thus disproved by his unacceptable statement on the conduct of the appellants which was attempted to be established by alleging that they had ran away from the hospital just after the death of the deceased. I do not find any reason for the prosecution for not bringing on record those documents which were as vital pieces of evidence as any other evidence. The onus of producing the two documents was squarely on the prosecution as the two documents were in its possession. If the prosecution was suppressing the two documents and in the alternative was asserting incorrect and false facts, in my most considered view, the prosecution case has to be rejected as not being the propositions of correct facts depicting the incident truly. 15. The aspect of the matter that it were the appellants who had brought the deceased to SKMCH., Muzaffarpur, which inference I am drawing on consideration of the evidence of the witnesses, specially, that of the informant, becomes more clear and that appears admitted by the informant also. He appears cross-examined in detail and in paragraph 13 of his evidence, he has admitted that when he reached the hospital, i.e., SKMCH, Muzaffarpur, along with P.Ws. 5 and 6, he came to know that the deceased had been hospitalized since 8 A.M. on that day and further that the Doctors of the hospital had opined that she should be shifted to - 11 - Patna for better treatment. In the same paragraph, P.W. 11 has stated that when he reached SKMCH, he found, the husband, mother-in-law, father- in-law of the deceased and others also present and that the deceased had reached the hospital at 6 A.M. If this is the evidence of P.W. 11 in his cross-examination in paragraph 13, his averment that it was he who had shifted the deceased from Sadar hospital Muzaffrpur to SKMCH, Muzaffarpur, could never be accepted as the same is disproved by his evidence in paragraph 13. Likewise, his evidence in paragraph 5 in cross- examination as also in examination in chief in paragraph 2 appears out and out a false statement because in examination in-chief he has stated that he did not mention in his written report that it was the informant who had shifted the lady from Sadar Hospital to SKMCH, Muzaffarpur. This further raises an inference that the evidence of P.W. 11 is beset with some ulterior motive and on that account he was not feeling hesitant even on telling lies and, as such the court would not be justified in placing reliance on him., 16. The above is the reason that I could be very slow in accepting the evidence of P.W.1, the mother of the deceased. While I was being taken through the evidence of P.W.1 the first thing which I gathered was that the lady was not an independent witness who was deeply influenced by her son P.W. 11 to make statements of fact on oath before the trial court as per his desire and, as such, on most material questions she was simply replying that those could be better answered by her son and on some of the questions she was replying that it was stated by her as it was told to her by her son, i.e., P.W. 11. This is the reason that P.W. 1 Durga Devi, the mother of the deceased was again making the statement in paragraph 2 of - 12 - her evidence when she stated that her son P.W. 11 had shifted the deceased from Sadar Hospital, Muzaffarpur to SKMCH, Muzaffarpur and these facts and other facts were in her knowledge because it were told to her by her son ( P.W. 1 paragraph 3). Thus, the evidence of P.Ws. 1 and 11 convinces me that the basic flaw which afflicts the prosecution evidence is that the witnesses were quite aware of the fact that they were making false and incorrect statements only with a motive of not allowing the court to reach correct conclusion and were supporting events or facts which were not true and correct. 17. So far as the demand of dowry is concerned, it is true that the allegations are there which emanate from the very written report(Ext.6), but what I find from the evidence of P.Ws. 1 and 11 is that the evidence also is not satisfactory and convincing. While P.W. 1, the mother of the deceased, was telling that the deceased went to her matrimonial house after her marriage with appellant Krishna Kumar Kranti and when she came back after fifteen days to her parent’s house she was complaining to her and others about the demand of dowry in the form of a motorcycle, a Godrej Almirah, etc. P.W. 1, the mother of the deceased was telling completely a different story when she was stating in paragraph 1 of her evidence that after the deceased had remained in the house of the informant for about a month, she went back to her matrimonial house and remained there for about six months and when she came back to her parents’ house she was stating about the demand of a motorcycle, a Godrej Almirah, etc. and was further narrating that she was not even provided food and other necessities, only because the accused persons had not got the demand fulfilled. So far as the sufficiency of the evidence - 13 - of P.Ws. 1 and 11 is concerned, none of the witnesses had ever stated that any communication was received by them through any letter. In fact, they have been very categorical in stating that the deceased had never written any letter containing complain about ill-treatment and torture of hers’ by the accused persons on account of non-fulfilment of demand for dowry. But, when one considers the evidence of P.W. 3 who is the other brother of the deceased, in paragraph 2 one could find that she communicated about the ill-treatment and torture as also demand for articles through letters written to him. He was also telling altogether a new story that he, i.e., P.W. 3, had gone to the house of the appellants for obtaining Bidai and finding them not inclined and rather being severely opposed to it, he was touching the feet of appellant Satya Narayan Sah and was imploring him to allow the deceased to go. None of the letters which could have been received by P.W.3 was produced. He has given completely an unsatisfactory explanation that the letters were lost. But, in spite of the letters being lost, the prosecution produced through P.W. 4, two letters undisputedly written by the deceased to her husband. I have gone through the letters. In one of the letters( Ext. 1/ii), the lady appears acknowledging receipt of Rs. 104/- sent to her by appellant Krishna Kumar Kranti. In the same letter Ext. 1/ii the lady was expressing her anguish about the unsavoury comments in respect of appellant Satya Narain Sah made by one Gayatri that he was indulging in