CRIMINAL APPEAL (SJ) NO.717 OF 2007 Against the judgment of conviction and order of sentence dated 07.07.2007 passed by Additional Sessions Judge-XI, Patna in Sessions Trial No.1308 of 2004 arising out of Dhanarua P.S.Case No.99 of 2003, G.R.Case No.215 of 2003. SANTOSH KUMAR, Son of Sheonath Prasad, resident of village-Tajpur Manjhauli, P.S.Dhanarua, District-Patna ------- APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: S/Sri Ramakant Sharma, Sr.Advocate. Rajesh Kumar, Santosh Kumar Pandey, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant Santosh Kumar was indicted of committing the offence under Section 304B and 201 IPC by the learned Additional Sessions Judge-XI, Patna in Sessions Trial No.1308 of 2004 and by judgment dated 07.07.2007 was held guilty of committing the two offences. After being heard on sentence on the same day, the appellant was directed to suffer rigorous imprisonment for seven years under Section 304B IPC and rigorous imprisonment for three years as also to pay a fine of Rs.1,000/- for his conviction under Section 201 IPC. In case of defaulting the payment of fine, the appellant was 2 suffer to rigorous imprisonment for a further period of three months. The learned trial Judge directed the sentences inflicted upon the appellant to run concurrently. 2. Some of the facts are admitted that the appellant was married to Jayanti Devi who was the daughter of informant Shyam Narayan Prasad Yadav(P.W.9) and that the appellant had a daughter born to him out of the wedlock. There is no dispute that the appellant was residing on or around the date of occurrence in the house of the appellant and the appellant does not dispute that she died while residing with him. 3. The allegation which comes through the written report filed by P.W.9 before the officer-in- charge of Dhanarua police station was that in spite of having spent a lot of money and having also given ornaments, watch, etc. to the appellant and his daughter, the appellant was not satisfied and was asking the deceased Jayanti Devi to bring a motorcycle and a television from the informant and that demand being not fulfilled, he was assaulting the lady and illtreating her in various ways. The informant stated that the deceased used to inform him about the demand and her illtreatment by the appellant on that account and used further to state 3 that the present appellant was holding a threat that in case the demand of the appellant was not met, he might marry another girl. 4. Having learnt the above facts, the informant claim going to the house of the appellant and to have reasoned with the appellant and his parents so as to persuading them not to illtreate her by assaulting the lady and as soon as he could have sufficient money he would fulfil the demand of a television and a motorcycle. 5. It was stated that the appellant and his family members did not pay any heed to the requests of the informant and on 18.05.2003, the appellant and his parents as also the sister of the appellant, namely, Kiran Devi and Nandu Yadav and his wife all joined to kill his daughter Jayanti Devi and caused the disappearance of her dead body. As soon as he learnt about the incident, he rushed to the house of the appellant on the same day, i.e., on 18.05.2003 to find that his daughter was not there nor any of the family members was present at the house of the appellant. They also stated that his daughter had been killed and the inmates of the house had run away. 6. On the basis of written report, the FIR of the case(Ext-1) was drawn up and investigation 4 was entrusted to S.I. Brahmdeo Yadav who has not been examined during the course of the trial, as such, there is no evidence as to how the investigation proceeded and what were the objective findings of the investigating officer as regards the different aspects of commission of the offence but what appears from the record of the trial court is that the appellant was sent up for trial after close of the investigation and during that course as many as eleven witnesses were examined by the prosecution. It further appears that the dead body could not be traced and that defence of the appellant was that the lady died of diarrhoea and she was taken to a doctor D.W. Umesh Kumar Singh who finding her condition precarious referred her to the Patna Medical College Hospital. While the lady was being transported from Dhanarua to Patna for being admitted to the hospital she breathed her last. 7. Out of eleven witnesses, P.Ws.1 to 8 were declared hostile. I have gone through the evidence of those hostile witnesses and all of them have stated that the deceased Jayanti Devi who was the wife of the present appellant died of diarrhoea. Some of them have stated that she was taken to a doctor while being transported, she breathed her last on way to the other hospital. 5 8. The charges have been supported by P.W.9, the informant and the father of the deceased, namely, Shyam Narain Prasad Yadav. P.W.11 Arbind Kumar was a witness of formal character and he was giving his evidence about being acquainted with the writings of the officer-in-charge of Ramesh Kumar who was the then officer-in-charge of Dhanarua police station and who had drawn up the formal FIR Ext-2. 9. Basing his findings on the evidence of P.Ws.9 and 10 and also after having considered the defence and its evidence, the learned trial Judge passed the impugned judgment. I was taken through the evidence of two witnesses who came out in support of the prosecution allegations by Sri Ramakant Sharma, the learned senior counsel appearing on behalf of the appellant. It was contended that the witnesses were concealing some of the important facts and appear purposely doing it so as not to be distrusted by the court. P.W.9 was making a false statement as regards the period of marriage of the deceased to the present appellant and was further concealing his relationship with P.W.10. P.W.10 Upendra Prasad was also not initially forthright in disclosing his relationship with P.W.9 but after much persuasion during cross-examination 6 he appears admitting that if not directly related to P.W.9, he was still closely related to him as his sister was the wife of the sala of P.W.9 as may appear from paragraph-8 of P.W.10. It was contended that mere allegation of demanding some dowry together with indefinite and bald statement regarding the illtreatment of the lady or treating her cruelly and simple allegations of the death of the lady under circumstances not natural within seven years of marriage may not be sufficient to hold that the charges have been proved. It was necessary that soon before the death had occurred, the lady had been subjected to currently or was harassed either by the husband or any of his relatives in or in connection with any demand for dowry. It was contended that there was no evidence indicating as to when the demand for dowry was made and what were the dates, in terms of proximity, which could be treated as soon before her death that the lady was illtreated with cruelty. It was, as such, contended that the appellant deserve to be acquitted. 10. Sri Ajay Mishra, learned counsel appearing for the State was submitting by reference to 2007 Crl. Law Journal 4250 that ‘soon before her death may not be construed in such a way as to be 7 strictly falling within a particular number of days or weeks but it has always to be construed proximity- wise as regards the death of the deceased and her treatment with cruelty or in connection with the demand for dowry.’ It was contended that evidence of P.W.9 could be appreciated in the light of the above decision in Anandmay Ghosh Vrs. State of West Bengal and if appreciated that way this court has also to record that the charges were duly proved. 11. P.W.9 Shyam Narain Prasad Yadav appears working as a constable in some Section of the police force at the relevant time at Begusarai. This appears from his deposition sheet. He was giving evidence in a general way as regards the demand for a motorcycle and a television which appears in paragraph-2 of his evidence when he was stating before the trial court that the lady was abused and assaulted as well and was asked to bring a television and a motorcycle from P.W.9 else, she was threatened to be killed by the appellant. P.W.9 stated that he went to the house of the appellant and talked to him as well as to his parents and requested them not to assault the lady or illtreat her and assured them that as soon as he had requisite money, he will be fulfilling the demand 8 and thereafter came back to his house but subsequently learnt that on 18.05.2003, the accused persons including the present appellant had killed his daughter. He came to the house of the appellant to find that there was none available there and the villagers, on enquiry, pointed out to him that his daughter had been killed and her dead body had been removed by the appellant and others. In cross- examination paragraph-15 P.W.9 stated that the deceased was a matriculate and she used to write letters, but he never wrote to her nor did the deceased write to him. So far as the date of marriage of the deceased and the appellant is concerned, the evidence of P.W.3 appears indefinite. In his examination-in-chief he has given a general statement that the deceased was married to the appellant some three years prior to her death and when he was cross-examined on that particular fact in paragraph-17, he was stating that he did not really remember the date of marriage and when the lady went to her husband’s house. However, what appears from the evidence of P.W.9 in paragraph-28 is that the deceased remained in her matrimonial house for three years continuously and he went there for 4-5 times, but never stayed there. He met the deceased and used to come back from there. In 9 paragraph-21 P.W.9 stated that Jayanti Devi had a daughter who was present on that particular day of his deposition in the court room and the child was aged bout eight years. 12. From perusal of the evidence of P.W.9 what appears is that the allegations of illtreatment and torture are all in general terms. P.W.9 was not stating, even period wise, as to when he did receive a message from any corner about the demand of a television or a motorcycle by the appellant. It is also not stated by P.w.9 that the demand was made once or on multiple occasions. The inference which I could draw from the evidence of P.W.9 is that the story narrated by P.W.9 regarding the demand of a motorcycle or a television does leave any scope for the court to infer that it could not be more than a solitary instance and that too non-specific to point out any specified time which could be co-related to the date of occurrence so as to raising an inference that the demand was proximate to the date of occurrence. The same is the fate of the allegation as regards the evidence of P.W.9 on the allegation of the deceased being illtreated or harassed for the above demand. It is very difficult to specifically infer any particular date or a period on which or during which the demand for dowry was made and 10 harassment of the lady to be treated with cruelty was perpetrated. As such this Court at least finds it very difficult to jump to the conclusion that death had occurred soon after the lady was subjected to cruelty for on in connection with the demand of dowry. 13. So far as the evidence of P.W.10 is concerned both P.Ws.9 and 10 attempted to conceal that they were not related to each other as may appear from his evidence in paragraphs 12 and 13 but during cross-examination of P.W.10, it came out as if his sister was married to the son of one Wakil Yadav and the daughter of Wakil Yadav was the second wife of informant Shyam Narain Prasad Yadav. Thus, there was some relationship between P.Ws.9 and 10. P.W. 10 was the resident of the village of the appellant from which as many as eight witnesses turned up to say that the deceased had died of diarrhoea. What I find is that the evidence of P.W.10 could not be utilized for raising any inference. Evidence of P.W.10 does not indicate that he had the first or even the second hand information about the lady being harassed or illtreated on account of demand of a motorcycle or television. Even assuming that P.W.10 could have access to the deceased and further that she could have narrated 11 the facts relating to her harassment or being treated with cruelty to P.W.10, then it was natural that he could have informed P.W.9. But, in paragraph-16 of his evidence, P.W.10 was stating that he never informed the informant about anything including the death of the deceased. If this could be the quality of the witness as was P.W.10, then any conviction could not be recorded by seeking support from the evidence of such a witness, like, P.W.10 who had come to corroborate P.W.9. 14. P.W.9 has stated that the marriage had taken place about three years prior to the occurrence and that may indicate that the marriage of the deceased to the appellant might have been solemnized some times in the year 2000. In his evidence P.W.9 (paragraph-1) was stating that the deceased was married some three years prior to the occurrence. But, if that was to be believed his own evidence falsifies him and renders him a witness who was not ready to come out categorically before a court. I have already pointed out that during his cross-examination on 09.01.2007 a girl child was present in the court room and the defence was putting a very direct question to P.W.9 pointing out to him that the child was the daughter of the deceased and grand daughter of P.W.9 which he was 12 accepting. He was put a question about the age of the child and he was repeating as may appear from paragraph 21 of the evidence that the girl child was aged about eight years. If the daughter of the deceased was aged about eight years on 09.01.2007, then the marriage could never have been solemnized three years prior to the occurrence, it might have been old by five years and that also indicates as to to what extent the witnesses could go to make out a case for implicating the appellant. 15. D.W.1 Dr. Umesh Kumar Singh was having his private clinic in Dhanarua and he was practicing there. He has deposed that Jayanti Devi, the wife of the present appellant was brought to his clinic and she was found suffering from diarrhoea on account of the symptom of frequent of loose motion, vomitting and marked dehydration and urine suppression. As a result of the serious condition of the lady, he referred her to P.M.C.H. for better treatment. 16. Thus, the above evidence of D.W.1 appears in consonance with the statement of some of the eight witnesses, like, P.Ws.1 to 8 who were pointing out to the trial court that Jayanti Devi died of diarrhoea and this appears as a probability. At least the evidence of the prosecution does not raise any probability in support of the proof of the 13 charges. 17. Regard being had to the above discussion of evidence, what I find is that the evidence was completely deficient as regards proof of charges and it was not a case in which the learned trial Judge should have convicted the appellant. In fact, the appellant could not have been convicted in the light of the evidence and I, therefore, allow the present appeal by acquitting the appellant Santosh Kumar of the charges for which he was convicted by setting aside the judgment of conviction passed upon him. The appellant Santosh Kumar is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 29th day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)