CRIMINAL APPEAL No.308 OF 2004(DB) With CRIMINAL APPEAL NO. 515 of 2004(DB) ****** Against the judgment of conviction and sentence dated 16.4.2004/ 19.4.2004, passed by Sri Balram Singh, F.T.C. 2nd Additional District & Sessions Judge, East Champaran, Motihari in S.Tr. No. 582 of 1992 ---------- 1. Babulal Mahto, son of Late lal Bihari Mahto 2. Dhanai Mahto, son of Aklu Mahto, 3. Ram Chandra Mahto, son of Jiut Mahto, 4. Thakur Mahto, son of Mahavir Mahto, 5. Yogendra Mahto, son of Mahavir Mahto, all residents of village Rai Karariya, P.S. – Paharpur and District – East Champaran ......... Appellants in Cr.Appeal 308/2004 Rajeshwar Mahto ……..Appellant in Cr.Appeal 515/2004 Versus The State of Bihar ……….Respondent in both the Appeals ----------- For the Appellants : S/Sri Rajendra Kishore Prasad, Sandeep Kumar, Rekha Prasad, Mohit Kishore Prasad & Mukesh, Advocates For the S t a t e : Sri Ashwani Kumar Sinha, APP. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA & THE HON'BLE SRI JUSTICE RAKESH KUMAR ------------- Dharnidhar Jha & Rakesh Kumar, JJ. The two appeals have been preferred to assail the judgment of conviction and sentence dated 16th April, 2004 and 19th April, 2004 respectively passed by the 2nd Additional District and Sessions Judge (F.T.C.), East Champaran, Motihari in Sessions Trial No. 582 of 1992. 2 2. By the impugned judgment, appellant Rajeshwar Mahto was found guilty of committing offence under sections 304B and 498A of the Indian Penal Code and was directed to suffer rigorous imprisonment for life and rigorous imprisonment for three years respectively under the above two counts. The five appellants of the other appeal were found guilty of committing offence under section 201 read with section 34 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for three years. 3. Some of the admitted facts are that the appellant Rajeshwar Mahto was married to the daughter of the informant in 1978 and that the deceased lady, Shivraji Devi, was residing on the day of her death at the house of appellant Rajeshwar Mahto. 4. The allegation is that the bride was quite young, aged about 12 years, at the time of her marriage. She went to her matrimonial house five years after and her Gauna was performed six months after when she had come to her matrimonial house. Things were moving very smoothly for the young lady, but once when the informant went to take stock of her daughter’s well being at her matrimonial house, he was informed by his daughter that her inlaws were assaulting her and once, had thrown her out of their house. He came to the village and made enquiries and found that the lady was being ill treated only because she was not cooking and the informant stated to her inlaws that she will cultivate the art as time passed by. The parents of the husband of the lady stated to the informant, P.W. 5, to take back the lady and train her in domestic works. 3 5. The informant stated that he brought his daughter back to his house and again at the occasion of Tila Sankranti (Makar Sankranti) her daughter came to her matrimonial house and at that time his son-in-law demanded a cycle from the informant. The informant promised to give it to him some times in the month of May or June of the year but he could not give it and extended the time of meeting the demand after he had harvested the wheat crops. The son in law of P.W. 5 had come to his house and he sent him off by presenting a Dhoti to him. It was alleged that on 10.5.1988 he picked up a rumour that his daughter had been killed in the preceding night. P.W. 5 came to his daughter’s matrimonial house and found that her dead body was lying at a particular place and preparations were afoot for her funeral on the bank of a pond. He stated that he and other people of the village protested to the funeral, when it could be stopped and the informant came to the police station to lodge the report and this is how the case was registered by Ext. 1, the Fard-e-beyan, on the basis of which, Ext. 3, FIR was instituted. 6. The Investigating officer has not been examined nor the doctor has been examined and as such, it is not known to this court as to how things proceeded after institution of the case through Exht. 3. But the lower court’s judgment indicates that the accused persons were sent up and charges were framed and on examination of a total number of seven witnesses, the court came to a conclusion that charges were well founded under which the appellants were convicted. 7. We have heard Sri Rajendra Kishore Prasad, learned counsel appearing for the appellant Rajeshwar Mahto and Sri Sandeep Kumar, 4 learned counsel for the remaining appellants in the two appeals. It was contended that P.Ws. 1 to 4 were declared hostile on account of not supporting any part of the prosecution version. The solitary witness who supported initially the prosecution story, was the informant P.W. 5 Ram Lal Mahto, but his evidence indicates that it was not a fit case in which the learned trial judge could have recorded the conviction of any of the appellants for any of the offences. We were taken through the evidence of the solitary witness P.W. 5, Ram Lal Mahto, by the learned counsel for the appellants. Learned Additional Public Prosecutor also concedes that it is a fit case in which the conviction of the appellant appears completely erroneous and not supportable under the evidence available on record. 8. As indicated above, the solitary evidence supporting the prosecution witness is that of the informant, i.e., the father of the deceased who, in his evidence, has stated that his daughter, after being married, came to the house of the appellant Rajeshwar Mahto who treated the lady with kindness but subsequently, the family members started assaulting and ill treating her and also expelled her from the matrimonial house. A cycle was demanded as dowry upon which P.W. 5 promised to meet the demand after the harvesting of wheat. About ten days after, the Mausera brother of the informant (not examined) came and informed him that his daughter had died and as such, he came to the matrimonial house of his daughter and found her dead body lying on the bank of a pond and preparations were being made for her funeral. The villagers pointed out to him, as per his evidence, that his daughter had been murdered by her family members and others. 5 9. During cross-examination, the witness has stated that his daughter was married ten years prior to the occurrence and that the relationship of the informant with his Samdhi was cordial. He further stated that he had not seen any part of the occurrence himself and that when he came to the village of the accused persons to ascertain the realities, he could know from the villagers that his daughter had died of illness. 10. The person, namely, Rajendra Mahto, who had given information about the death of his daughter to the informant, has not been examined. As in his FIR, so in his evidence in court, he claims to have derived the knowledge about the incident from the said Rajendra Mahto. It is trite that in absence of evidence of Rajendra Mahto that he had informed P.W. 5 about the incident or about whatever P.W. 5 had stated in court as evidence, is inadmissible. While supporting the charges that the accused persons were ill treating his daughter in his examination-in-chief, he appears completely destroying the effect thereof in his cross-examination when he stated that the relationship of his with his Samdhi was good and that his daughter died on account of illness as told by the villagers. He has not stated anything as regards the manner of torture rather has stated in cross-examination at page 18 of the paper book that he had received an information ten days prior to the occurrence that his daughter was unwell. In further cross-examination on 13.1.199, P.W. 5 stated that she was an epileptic person and he had got the deceased treated for the ailment. Evidence of P.W. 5 further indicates that she often used to have epileptic bouts in her matrimonial house and that his daughter never complained of anything about the accused. If this could be the evidence of P.W. 5, we do 6 not have any hesitation to record a finding that holding the appellants guilty of any charge and inflicting upon them any punishment was completely erroneous, specially when, the learned Judge was inflicting punishment of rigorous imprisonment for life upon appellant Rajeshwar Mahto when there was a complete lack of evidence for passing such a conviction and harsher sentence. 11. Under the above discussion, we set aside the order of conviction and sentence passed against all the appellants and acquit them of the charges. All the appellants except Rajeshwar Mahto are on bail. They are discharged from the liabilities of their respective bail bonds. As regards appellant Rajeshwar Mahto, he shall also be released forthwith if he is not wanted in any other case. 12. These two appeals are allowed in the above terms. (Dharnidhar Jha, J.) (Rakesh Kumar, J.) Patna High Court The 11th Jaunary, 2010 NAFR/Anil/