IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.1061 OF 2007 Against the judgment of conviction dated 17.09.2007 and order of sentence dated 25.09.2007 passed by Additional Sessions Judge, Fast Track Court-I, Nalanda in Sessions Trial No.190 of 2003. 1. MANISH KUMAR @ MANISH PRASAD, Son of Satyendra Ram, 2. SATYENDRA RAM @ SATYENDRA PRASAD, Son of Late Karu Ram, 3. LALITA DEVI, Wife of Satyendra Ram @ Satyenda Prasad, All resident of village-Bandoh, P.S.Rahui, District-Nalanda.... .... Appellants Versus 1. The State Of Bihar 2. SATYANARAYAN RAM(Father of deceased Babi Devi), Son of Shri Bhagwan Ram resident of village- Jamsarai P.S.Bind, District-Nalanda at present residing at Jhari, Dighwadih, Quarter no.10 Balu Line Talab, Joda Pokhar working as belt operator, Dighwadih, Dhanabad..... .... Respondents For the Appellants: Smt. Minu Kumari S/Sri Prasant Chodhary, Sanjeev Kumar Mishra, Advocates. For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Five accused persons including the three appellants were charged together with commission of offences under Sections 498A, 304B and 201/34 IPC by the learned Additional Sessions Judge, Fast Track Court-I, Nalanda at Biharsharif for being tried together in 2 Sessions Trial No.190 of 2003. On conclusion of the trial, the judgment was delivered by the learned Presiding Officer of Fast Track Court-I, Nalanda on 17.09.2007. While the three appellants were found guilty of committing offences under Sections 304B/34, 498A and 201/34 IPC, the two remaining accused, namely, Parmanand Kumar @ Sidheshwar Prasad and Reena Devi were acquitted of the above charges. After hearing the three appellants on sentence on 25.09.2007, the learned trial Judge directed each of the appellants to suffer rigorous imprisonment for ten years under Section 304B IPC, rigorous imprisonment for three years as also to pay a fine of Rs.10,000/- for their conviction under Section 498A IPC and in case they had failed in defraying the fine imposed on them, they had to suffer rigorous imprisonment for a further period of six months. So far as the conviction of the appellants under Section 201/34 IPC was concerned each of them was directed rigorous imprisonment for three years as also to pay a fine of Rs.1,000/-, else to suffer rigorous imprisonment for three months. The sentence passed upon the appellants was directed to run concurrently. The appellants have preferred the present appeal to assail the judgment of conviction and order of sentence passed upon them. 2. Some of the facts were either admitted or not seriously disputed, that appellant Manish Kumar @ Manish 3 Prasad was married to the deceased Baby Devi who happened to be the daughter of informant Satya Narayan Ram(P.W.10) in the year 1996. It is also not disputed that Baby Devi had given birth to two children, a daughter who was born in the year 1998 and the other a son born in 2001. Baby Devi died is also not disputed and it appears not denied that on the day she died she was either in the house of the appellants or in their company and care some where else. 3. The allegation is that after being married to appellant Manish Kumar @ Manish Prasad, the deceased Baby Devi went to her matrimonial house to come back to the house of P.W.10 after a month when she complained to him and others of being asked to bring Rs.20,000/- and a scooter which was not being given and on that account, as per the story, the deceased was being illtreated and tortured as a result of which P.W.10, the informant had to intervene to request the appellants and other accused persons not to illtreate the deceased. It is stated that after having remained in her parents’ house for six months she had been taken to her matrimonial house when the informant had again intervened on account of the deceased being illtreated and tortured as just narrated. 4. It was lastly, stated that on 21.08.2002, the sala of the informant Arun Prasad (not examined) telephonically informed that Baby Devi had been killed and 4 her dead body made to disappear. The informant P.W.10 along with others came to village Bandoh to ascertain about the facts of the case and after getting it confirmed that the deceased had been killed and her dead body cremated or otherwise disposed of, he filed the written report, Ext-1 before the officer-in-charge of Bhaganbigha police station. 5. On the basis of the written report (Ext-1), Ext-2, the FIR of the case was drawn up and the investigation was taken up. The court does not have any record as the investigating officer did not depose in the trial court as to how the investigation had proceeded. But, it is sufficiently indicated that the police has sent the five accused who had been put on trial before the court below which ended in conviction of the three appellants while the two accused, namely, Parmanand Kumar @ Sidheshwar Prasad and Reena Devi were acquitted. 6. The defence of the appellants appears in paragraph-21 of the cross-examination of P.W.10. It was suggested to P.W.10 that Baby Devi fell seriously ill and she was brought to the clinic of Dr. K.P.Sinha(D.W.3)in Sohsarai who treated her but Baby Devi succumbed to her disease on 17.08.2002 and Dr. K.P.Sinha(D.W.3)issued a certificate, Ext-A in that behalf. It was suggested to P.W.10 that he after due consultation and deliberations fabricated facts to lodge the written report. 5 7. Arguing the appeal, it was contended by learned counsel appearing for the appellants that the very evidence of P.W.10 (the informant) in cross-examination could be sufficient to satisfy the court that Baby Devi had not been tortured nor was she pestered for any dowry demand rather the informant fabricated the facts after eight days of the occurrence after duly consulting some of his relatives so as to lodging a false report. It was contended that there were many serious pitfalls in the prosecution story and its evidence. The first which was pointed out to this Court was the non-examination of the primary informer Arun Prasad (not examined) who, according to P.W.10, telephonically informed him that Baby Devi had been killed and her dead body had been disposed of. It was further contended that there was an admission of P.W.10 that his two sisters were already married in the same village and they had quite grown up sons who were also married and after having arrived at village-Bandoh he had consulted his sisters and their children, who could not confirm the news or allegations that the accused persons had killed Baby Devi and had caused the disappearance of the dead body. It was contended that after not getting the allegations confirmed through his sisters and their children, the informant did not chose to lodge a report rather went to his Sasural at village-Mathurapur and consulted his relatives there and thereafter a decision 6 was taken to lodge the report and, as such, the report was lodged after about eight days of the occurrence. 8. Sri S.N.Prasad, learned A.P.P., was relying upon the evidence of witnesses and pointing the thread of consistency which runs through the evidence of ten witnesses examined by the prosecution to submit that the demand of Rs.20,000/- and a scooter and the torture of the lady on that account appears stated by all witnesses who did not have any axe to grind against any of the appellants. It was also contended that the informant was learning about the incident on the fifth day of the occurrence and it was not that he was lodging the report immediately rather he was very cautious in verifying the veracity of the information and when he was confirmed that the information given by Arun Prasad (not examined) may not be untrue, he went to the police station for lodging the written report. Sri Prasad, as such, submitted that the judgment impugned herein does suffer from illegalities on account of misappreciation of evidence entitling the appellants to an acquittal from this court. 9. Co-villagers, like, P.W.2 Jhulan Ram, P.W.3 Bharat Kumar, P.W.8 Manju Devi and P.W.12 Surendra Ram appear telling that the deceased was being harassed and tortured in connection with a demand of Rs.20,000/- and a scooter. This is the statement of these witnesses, but when they were cross-examined by the defence what they all 7 stated in one form or the other was that they had their separate business, house and establishment and they did not have anything to do as regards the business or other aspects of the life or family affairs of P.W.10, the informant. When the evidence of P.W.10, the informant, is contrasted to the evidence of those witnesses, it may not be said that they had any special reason to know either from the informant or from any of his family members that the deceased was narrating her stories of torture and illtreatment on account of the non-fulfillment of the demand for Rs.20,000/- and a scooter. The evidence on knowledge, if it is authentic and acceptable by the rules of evidence, may also be acted upon as may appear from many provisions of the Evidence Act specially one contained in Section-8 of the Act. Moreover, the general rule of evidence is too well known to be reiterated. Hearsay evidence could be admitted if the source from which the knowledge was derived is also available to the Judge through primary evidence of that particular person from whom the information is claimed to have been derived. I have already pointed out that neither P.W.10 nor any of the evidences states as to from whom they could learn about to the demand of Rs.20,000/- or a motorcycle. They have been very categorical that they did not have anything to do with the affairs of the household of the informant. As such, that particular category of witnesses to me 8 appears too dangerous batch of persons to be relied upon. 10. As regards sustaining the conviction of the appellants for the offences under which they were recorded guilty so far as P.W.1 Sitaram, P.W.4 Bharat Kumar, P.W.5 Bhagirath Ram and P.W.6 Nandan Prasad are concerned they in tandem with P.W.7 Usha Devi and P.W.9 Manju Devi are very close family members of P.W.10; they have themselves admitted their relationship either with the deceased or with the informant. P.W.1 has admitted that the deceased was his niece. P.W.4 also claimed that he is the uncle of the deceased. P.Ws.5 and 6 were spouses between them and they were grandparents of the deceased. P.W.9 Manju Devi was none-else than the wife of the informant and the mother of the deceased. While writing the judgment reported in Sharad Birdhichand Sarda Vrs. State of Maharashtra AIR 1984 SC 1622 Fazal Ali,J was pointing out that when the evidence is coming through related persons, like the grand parents, sister or brothers then some sorts of psychological pressure acts upon their mind due to which they tend to depose in favour of the prosecution and as against the accused so as to ensuring that their story and the story of the prosecution is accepted and believed by all courts and the order of conviction is either obtained or if it has been obtained then it is sustained. That appears the reason for these witnesses, who came out in support of the story, and P.W.10 that they learnt from 9 Arun Prasad that his daughter had been killed and his dead body disposed of only due to the non-fulfillment of the demand of Rs.20,000/- and a scooter. What the learned trial Judge appears missing was that if the story was based on the information emanating from the sala of the informant Arun Prasad who was passing on the information telephonically, then why the said Arun Prasad felt shy of facing the defence counsel or the court itself and as such did not come into the witness box. The very story became suspect due to his non-examination. The court below had found Arun Prasad, who was none-else than the sala, the very close relative of the informant, not coming into the witness box firstly, to support the story he had passed on initially and the fact that he had passed on the information to the informant. I have somewhere in the earlier part of the judgment pointed out that hearsay evidence could be accepted only when the authentic source is produced before the court to support that it was that particular person or the source which had passed on the information to the informant or any other witness who claims learning that fact as the primary evidence and its withholding was devastating for the proof of the prosecution charges and that appears ignored by the learned trial Judge. 11. While I was being taken through the cross- examination part of P.W.10, the information of the case, I 10 found his story getting more suspect on account of certain admissions and the circumstances which created dent in the truthfulness in the prosecution story. It was admitted by P.W.10 in paragraphs-11 onwards that he had four sisters out of whom one was married at the same village-Bandoh to one Shrawan Ram and that marriage was around 15 year old. It was admitted by P.W.10 in the same paragraph-11 that his sister, married in village-Bandoh, had grown up children and as may further appear from paragraph-15 of his evidence, the sons of his sister were as grown up as to be married to ladies who were very much residing in their matrimonial houses. In fact in paragraph-11, the informant was talking about only one sister being married in village-Bandoh, but in paragraphs-13, 14 and 15 what he stated was that his two sisters were married in village- Bandoh and they were enjoying the similar marital status of being mothers of two children. It has been admitted by P.W.10 in paragraph-15 that after having learnt about the occurrence from Arun Prasad, he came to village-Bandoh and enquired about the veracity of the information from his sisters, their sons and the wives of the sons of the sisters, but none of them was coming out in support of that particular information which had been passed on to him or which had been received by him from any other source. This is the reason that on the first day he admits retreating back to village Mathurapur as may appear from 11 paragraph-16 of P.W.10. He appears consulting his relatives at his sasural place and then appears having taken a decision in concert with those relatives to lodge a report. But again, persons who had accompanied him to file the written report whose names figure in paragraph-16 of his evidence have not come forward to support the prosecution story. Not only that, in spite of his first admission of P.W.10 that his sisters were not supporting the information about Baby Devi being killed and her dead body being disposed of, he still names one of his sisters Manju Devi as one of the persons who had accompanied him up to the police station at the time of filing the written report. My conscience as a Judge is not ready to accept those part of the story that once the lady who had refused to confirm the information would simply accompany her brother to lodge a case up to the police station to ensure that innocent persons were harassed and convicted. Not only that, he had dragged the names of his Bahnoie, his mother and one of his Samdhi besides others, like the very Arun Prasad who as per P.W.10 had passed on the information initially to him as persons accompanying him to the police station, but curiously enough none of those persons whose names figure in paragraph-16 of P.W.10 were produced in the court to say the fact as was claimed by P.W.10. 12. The above being one aspect of the matter, the 12 other aspect which appears, in my considered view, quite serious is the admission of the witness that none of the witnesses, like, Jhulan, Bharat, Nandan Prasad or any one of his village had been named in the written report as witnesses. The written report is itself an exhibited document as Ext-1. One could look to that document to test the veracity but in view of the very admission of P.W.10 that those were named persons in the FIR as witnesses, this Court has some reservations in placing reliance upon their evidence though I have initially rejected them as trustworthy witnesses. 13. In view of the facts, which I have just discussed from the evidence of P.W.10 and other witnesses, the biggest question which the prosecution is failing to explain as to why the informant was sitting so tight over the matter for four days, before he was lodging the report. As per evidence of P.W.10 he had decided in concert with his relatives from his wife side at village- Mathurapur but he was lodging the report not on that particular day which was the first day he had reached at village-Bandoh and was still taking time to file the report in the police station shows the conduct of the informant and as such could simply create serious doubt about the veracity of his case and ultimately the proof of the charges. 14. In the result, the appeal succeeds. The 13 judgment of conviction and the order of sentence passed upon the appellants are set aside. The appellants are acquitted of the charges for which they had been found guilty. Appellant Manish Kumar @ Manish Prasad is in custody. He shall be released forthwith, if not wanted in any other case. Other appellants, like, Satyendra Ram @ Satyendra Prasad and Lalita Devi are on bail they shall stand discharged from the liabilities of their bonds. Patna High Court, Dated, the 8th day of November,2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)