IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.468 of 2005 Against the judgment and order dated 10.6.2005, passed by Dinesh Kumar Sharma, Additional Sessions Judge, Fast Track Court No. III, Arrah in Sessions Trial No. 103 of 1998, arising out of Agiaon Bajar (Piro) P.S. Case No. 45/96 dated 26.9.1996, G.R. No. 2357/96. 1. Madan Paswan. 2. Jag Bhushan Paswan, Both sons of Dudli Paswan. 3. Dudli Paswan, Son of late Bhimal Paswan. 4. Tetari @ Dhaneshwari, Wife of Dudli Paswan. 5. Lakhpato Devi, Wife of Jag Bhushan Paswan. All residents of Village Puraini, PS Agiaon Bazar, District Bhojpur. .... .... Appellants Versus State Of Bihar .... .... Respondent Appearance : For the Appellants : Mr. Naresh Kumar Malhotra, Senior Advocate Mr. Binod Kumar Sinha, Advocate Ms. Maria Fatma, Advocate For the State : Mr. Ashwini Kumar Sinha, A.P.P. CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN and HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) S.A. Khan, J. Out of the five appellants in this appeal, Madan Paswan, the husband of the victim lady (Manti Devi), his sister-in- law (Bhabhi) Lakhpato Devi have each been convicted under Section 302/34 of the Indian Penal Code to undergo rigorous imprisonment for life. They have also been sentenced to undergo seven years rigorous imprisonment for offence under Section 201 Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 2 of the Indian Penal Code, whereas Jag Bhushan Paswan, Dudli Paswan and Tetari @ Dhaneshwari Devi have been convicted under Section 201 of the Indian Penal Code to undergo rigorous imprisonment for five years each. 2. This is a case of circumstantial evidence. The informant Lalan Paswan is the brother of the victim lady Manti Devi. The prosecution case as per the First Information Report (Ext. 2) is based on a written report in the handwriting of one Dharmraj Paswan who has not been examined in this case. The facts of this case are that Manti Devi was married to Madan Paswan. After two years of marriage, she went to her husband’s house. When she returned after six months she complained that her husband was of loose character and that he was having an affair with his sister-in-law i.e. Lakhpato Devi. After remaining in her parents’ home for about six months, she returned back to her husband’s house. On the occasion of ‘Tij’ when the informant went to meet her, he found that she was not looking well. She disclosed that her in laws and husband were ill-treating her. The informant requested the father-in-law of the victim lady to allow him to take Manti Devi back to her home but he refused and said that she would go to her home during Dussehra. After returning home, he sent Tarkeshwar Ram and his nephew Narad Muni Ram P.Ws. 2 and 3 respectively to the house of Madan Paswan in order to solve the problem that existed between his sister and her husband Madan Paswan. It is alleged that on 28.9.1996 Manti Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 3 Devi’s ‘Chachera’ father-in-law informed them that Manti Devi died on 26.9.1996. On the basis of the aforesaid fact investigation was made and the trial proceeded. 3. During trial, six witnesses have been examined on behalf of the prosecution. P.W. 1 Sumitra Kuwar is the mother of the informant, P.W. 2 Tarkeshwar Ram is the brother of the informant, P.W. 3 Narad Muni Ram is the nephew (sister’s son) , P.W. 4 Shanti Devi is the informant’s wife, P.W. 5 is the informant himself and P.W. 6 the Investigating Officer of this case. 4. The evidence of P.W. 5 i.e. the informant would be the most relevant for deciding this case. Although this Court would be referring to the evidence of other witnesses in order to bring home the issues in question. Lalan Paswan has deposed in Court and more or less supported the case made out in the First Information Report. The most important aspect which emerges out of the evidence of P.W. 5 is that he claims that after he heard on 28.9.1996 that his sister had died, he admits not to have taken any steps to visit his brother-in-law and find out about circumstances revolving around the death of the sister. In fact he has lodged the First Information Report dated 4.10.1996 i.e. eight days after he received information regarding the death of his sister. In his chief he has developed a case that he had sent certain persons to Madan Paswan’s house on 24.9.1996 to find out about the welfare of his sister. None of those persons have been examined in this case. In fact, the prosecution has not been able to Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 4 examine Dharmraj Paswan who wrote the First Information Report on behalf of P.W. 5 nor has the prosecution examined the witnesses who had gone for the purposes of holding a Panchayat regarding the occurrence. At this stage, it may also be noticed that in the First Information Report the informant has also stated that Madan Paswan did not like his sister because she was dark skinned and that he planned to remarry another girl. Therefore, it appears that there is also a discrepancy regarding the motive alleged for the death of Manti Devi, inasmuch as, it is said at one place that she was killed because her husband was involved with Lakhpato Devi and on the other hand it is said that Madan Paswan did not like Manti Devi as she was dark skinned. These discrepancies as pointed out above have also been highlighted in the cross- examination of P.W. 5. He has specifically been questioned on each aspect of the allegations as set out in the First Information Report. In the cross-examination he has not given an explanation as to why he was not able to take the evidence of those persons who had gone to hold Panchayat in the village namely Sheo Mohan, Nand Kumar, Bharat and Yamuna Manjhi. P.W. 5 has stated in his cross-examination that the uncle who had come to come to inform him about the death of Manti Devi was Sukar. He claims that he went to the village Puraini i.e. the village where the occurrence took place and went straight to the Thana to give his written report. The defense specifically suggested that Manti Devi suffered from Dysentery and was being treated by Dr. Hari Prasad. Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 5 P.W. 5 denies the suggestion that his sister died due to Dysentery. 5. The other witnesses examined in this case i.e. P.Ws. 3 and 4 have deposed in the same way as P.W. 5. P.W. 1 who is the mother of the deceased says that after she had learnt of her daughter’s death, she did not go to meet Sukar (Madan Paswan’s uncle) nor is she able to remember the date or time when Sukar came to their house to inform them of the death of Manti Devi. Similarly, P.W. 2 Tarkeshwar Ram has stated that Manti Devi had complained that her husband ill treated her because she used to protest regarding relationship he had with Lakhpato Devi. This witness has also not been able to support or justify the reasons as to why no attempts were made to go to the house of Madan Paswan on hearing of the death of Manti Devi in order to find out about the circumstances of her death. Similarly, P.W. 3 has also alleged that the informant’s sister was killed by her husband and in-laws and her dead body was disposed of. During cross- examination, he has not been able to state or explain the delay in taking steps to lodge a case. P.W. 4 Shanti Devi i.e. the wife of the informant has also supported the version as stated by Lalan Paswan in the First Information Report. All the witnesses have specifically said in their cross-examination that they did not go to the village Puraini to meet the in-laws of Manti Devi or to find out from the neighbours regarding the date, time or reasons which led to the death of Manti Devi. 6. In this background, the evidence of the Investigating Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 6 Officer is important. The Officer Incharge has spefically stated in his cross-examination that when he went to the place of occurrence, he did not find out anything suspicious at the place of occurrence. He says that he had not received any complaint or report regarding the death of Manti Devi, although admittedly she died within seven years of her marriage. The Investigating Officer has also stated that none of the villagers or neighbours of Madan Paswan had filed any complaint against Madan Paswan or his family members. These statements are made at paragraph nos. 8, 10 and 15 of the evidence. At paragraph 16 he says that he had not heard any report with regard to demand of dowry. Specific question was put regarding treatment by Dr. Hari Prasad. At paragraph 13, the Investigating Officer has stated that he examined Dr. Hari Prasad. During evidence questions were specifically put regarding the statements made by the witnesses in Court before the Investigating Officer. The Investigating Officer has denied that any statement was given by P.W. 1 that Madan Paswan was having an affair or had a illicit relationship with his sister-in-law (Bhabhi), nor has P.W. 1 stated before the Investigating Officer that Manti Devi had complained that her husband hated her because of her dark skin. This witness has also not stated before the Investigating Officer that Manti Devi had complaint that her in-laws used to abuse her or that Manti Devi was threatened by her husband or in- laws. Regarding P.W. 2, the Investigating Officer has stated that Tarkeshwar had not stated before him that Manti Devi had Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 7 complaint that her in-laws used to abuse her physically. This witness has also not stated before the Investigating Officer that a threat was given by her in-laws to Manti Devi. The Investigating Officer denies that any statement was made with respect to there being an illicit relationship with Lakhpato Devi. He also denies that P.W. 3 has stated that there was a threat to the life of Manti Devi. At paragraph 23, the Investigating Officer denies that P.W. 4 had given a statement regarding the affair of Madan Paswan with Lakhpato Devi nor had P.W. 4 ever stated that there was a threat to the life of Manti Devi. Corresponding with the evidence of the Investigating Officer, attention of the witnesses has also been drawn to this aspect of the matter. 7. On perusal of the entire evidence in this case, the facts that emerge are that the First Information Report was filed after a delay of eight days for which there is absolutely no explanation. The behaviour of the informant or his family members when they learnt about the death of Manti Devi is to say the least unnatural. It is surprising that after hearing that Manti Devi had died, the informant, his father and brother did not take any steps whatsoever. He did not visit the village to find out the facts regarding her death nor had they met any one in the village who would be able to disclose, as to when and how Manti Devi died. A written report was brought before the Investigating Officer allegedly written in the handwriting of Dharmraj Paswan who has not been examined this case. The other independent Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 8 witnesses who had allegedly visited the house of Manti Devi have also not been examined to support the prosecution version that Manti Devi had been killed by her in-laws. In a case where the allegations have nothing to do with a demand of dowry, the onus to prove that the death was unnatural, shifts to the prosecution. In this case, the evidence that has come on record, does not lead this Court to the conclusion, that Manti Devi was killed by her in-laws. This aspect of the matter is supported by the independent findings of the Investigating Officer, who claims that he had not heard a whisper in the village regarding the unnatural death of Manti Devi. The defence has taken a specific plea that Manti Devi died due to Dysentery and in order to support this aspect they have examined Dr. Hari Prasad who is an Ayurvedic practitioner. He had treated Manti Devi for Dysentery and advised that Manti Devi should be taken to Arrah for further treatment. Dr. Hari Prasad is a registered doctor to practice Unani medicines. He was examined by the Investigating Officer, as well, to support the fact that Manti Devi was suffering from severe Dysentery. The entire gamut of facts specially the delay in filing of the First Information Report leads this Court to the conclusion that the appellants cannot be held guilty of Section 302/34 or Section 201 of the Indian Penal Code. 6. In the result, the judgment and order dated 10.6.2005, passed by Dinesh Kumar Sharma in Sessions Trial No. 103 of 1998 arising out of Agiaon Bajar (Piro) P.S. Case No. 45/96 Patna High Court CR. APP (DB) No.468 of 2005 dt.09-09-2011 9 dated 26.9.96, G.R. No. 2357/96 is set aside. This appeal is allowed. Appellant no. 1 Madan Paswan should be released forthwith, if not wanted in any other case. The other appellants are discharged from the liabilities of their bail bonds. Patna High Court. The 9th of September, 2011. N.A.F.R./Sanjay (Sheema Ali Khan, J.) Shyam Kishore Sharma, J.- I agree. (Shyam Kishore Sharma, J.)