Criminal Appeal (SJ) No.394 of 2006 Against the judgment of conviction dated 13.04.2006 and order of sentence dated 15.04.2006 passed by Additional Sessions Judge, Fast Track Court No.III, West Champaran, Bettiah in Sessions Trial No.442 of 1993 arising out of Bettiah Town P.S.Case No.164 of 1993, G.R.Case No.1229 of 1993. ABHAY KUMAR BARNWAL.... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Kanhaiya Prasad Singh, Senior Advocate & Sri Wasi Ahmad Khan, Advocate. 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. The solitary appellant, who is the husband of deceased Geeta Devi, appeals against the judgment dated 13.04.2006 passed in Sessions Trial No.442 of 1993 by Fast Track Court No.III, Bettiah. By the impugned judgment the solitary appellant was convicted of committing the offences under Sections 304B and 201 IPC whereas the other three accused persons who were also put on trial simultaneously with the present appellant were acquitted by the learned trial Judge. After hearing the appellant on sentence, the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.20,000/-, else to suffer rigorous 2 imprisonment for two years under Section 304B IPC. The appellant was sentenced to undergo rigorous imprisonment for three years under Section 201 IPC. The sentences were to run concurrently. 2. Some of the facts are not in dispute that the deceased Geeta Devi was married to the appellant and on the date of occurrence, i.e., 10.05.1993, was residing in the house of the appellant. The appellant had begotten two children and that the deceased died in the house of the appellant along with her two children. 3. The dispute which has been raised between the parties is that the marriage had taken place in 1998 as per the prosecution whereas the defence pleaded that it had been solemnized in 1985. 4. The allegation was that after marriage appellant suddenly started demanding a motorcycle and put it as a pre-condition for performing the Donga ceremony as also for taking the deceased to his house. Three dates for Donga were adjourned on that account and ultimately Rs.5,000/- was paid by the informant who happened to be the brother of the deceased Geeta Devi and then only the Donga was performed in March,1989. The deceased started living in her matrimonial house. Prior to her 3 death, she gave birth to two children who were also the deceased in the present case. 5. On the basis of the typed report, the FIR of the case was drawn up and the investigation was undertaken by P.W.9 Md. Iftakhar Ahmad Ansari who visited the place of occurrence, recorded the statements of witnesses as also went in search of the dead body at a place where it had been thrown allegedly by the accused persons and recovered certain articles and finding the materials sufficient sent up three accused persons for their trial with the result that the appellant was convicted and other two were acquitted. 6. Twelve witnesses were examined by the prosecution, out of whom P.Ws.5 to 8 were declared hostile. P.W.9, as just stated, was the investigating officer of the case. P.Ws.11 and 12 were witnesses of formal character having proved certain documents. P.W.10 Chandrika Prasad was not a witness on occurrence rather he was a composer in a printing press and had composed the marriage card at the orders of the father of the deceased. Four witnesses who came to support the prosecution charges were P.W.1, Jamuna Prasad, the father of the deceased and the informant of the case Vijay Prasad. P.W.3 Prabhawati Devi was the mother of the 4 deceased. P.W.4 Brijkishore Prasad was the Sarhoo of the informant. 7. The defence also examined six witnesses on different aspects of the case and also tendered in evidence Exts-A and B which were respecting an order passed on an application for bail by the Sessions Judge and the other was the statement of one Dargahi Miyan under Section 164 Cr.P.C. On consideration of the evidence, the impugned judgment was passed. 8. I was taken through the evidence of four witnesses who came to support the prosecution charges. It was contended that the date of marriage was in dispute and as such the conviction of the appellant under Section 304B IPC was not maintainable. It was next contended that the evidence on demand of a Hero Honda motorcycle or payment of Rs.500/- was also not convincing. Likewise, the evidence on disposal of the dead body was quite infirm. Besides, there was complete lack of evidence that the deceased was being tortured or treated with cruelty in connection with non- fulfilment of the demand of the appellant for dowry. 9. Sri Satya Narayan Prasad, the learned A.P.P. replying to the submissions urged that the 5 date of marriage or the period in which the death had occurred does not appear exceeding seven years and the evidence appears sufficiently available on record that a demand for a motorcycle as a pre- condition for performing the Donga ceremony was available on record. It was established by evidence, submitted the learned counsel, that the deceased was illtreated and tortured in that connection and, as such, she committed suicide, if she was not killed along with her two children. It was, as such, contended that the evidence was sufficient to establish the charge under Section 304B IPC. Otherwise also, the look of the case was convincing enough about the commission of the suicide by the lady along with her two little children and this was for the accused to explain as to why the spouse living in his house could be killing herself along with her children. 10. There are varying statements of witnesses on all aspects of the case. Jamuna Prasad, the father of the deceased(P.W.1)might have stated that the marriage of the deceased with the appellant was within seven years of her death but when he was cross-examined in paragraph-9 he simply refused to say as to what was the date and other details of the marriage. If the prosecution was 6 producing a marriage card, the same was being done by the defence also to rebutt the evidence on the date of marriage. As such, the evidence of witnesses could be the only beacon-light on the above point. P.W.2, the brother of the deceased and the informant of the case in paragraph-16 was cross-examined on the above fact and he also appears wavering on that particular fact when he stated that he cannot say as to what was the date or month of the marriage of the sister, but, lastly, he could say that it was the month of Baisakh and the marriage was solemnized in March, 1999. Likewise, the mother of the deceased, P.W.3 was stating in paragraph-3 that she cannot say the month, date or other details of the marriage of deceased Geeta Devi nor there was any document in that behalf in her knowledge. P.W.4 Brijkishore Prasad is not a witness on that fact as he is a distantly related person to the family of the informant. Thus, what appears from the evidence of the three witnesses who were the parents and the brother of the deceased is that it could not be held with exactitude or some amount of certainty as to when the deceased had been married to the present appellant. However, conceding that it could be within seven years of the occurrence, the sole 7 fact of being married within that period may not constitute an offence under Section 304B IPC unless the evidence was satisfactory to indicate that the deceased, prior to her death, was being harassed in or in relation to a demand for dowry and was being treated with cruelty as a result of which her death occurred under circumstances not natural. So the moot questions were besides the date of the marriage, which were and are still to be considered. 11. The first question was as to whether there was indeed a demand for a motorcycle and if it was, then has it been established by satisfactory evidence. P.W.1, the father of the deceased could be one of the competent persons to state on the above fact. But, when he was cross- examined to his earlier statement, as he had made a categorical statement in examination-in-chief that the appellant, his brother and parents asked for a motorcycle only when the Bidai could be performed, he admitted that he had never made the statement before the police. Likewise, P.W.2 Vijay Prasad, the informant of the case also states in paragraph 17 during his cross-examination that he did not remember as to when Rs.5,000/- was paid to the appellant in lieu of a Hero Honda motorcycle. 8 Similarly, P.W.3, the mother of the deceased admitted in paragraph-9 of her evidence that she had not made that particular statement that the appellant had demanded a motorcycle and had put it as a pre-condition for performing the Donga ceremony. If this could be the state of evidence of family members as close as the parents and the brother of the deceased which could not make it possible for this Court to hold that there was indeed a pre-condition put by demanding a motorcycle as a dowry item, then the case of the prosecution has to be disbelieved on that score. These are two circumstances upon which, this Court feels it extremely difficult to uphold the conviction of the appellant under Section 304B IPC. 12. So far as the conviction of the appellant under Section 201 IPC is concerned, the story which was propounded subsequently by the prosecution was that one Darbari who was a rickshaw-puller informed some one that he had been hired by the appellant to carry some articles on his rickshaw and when he reached the house of the appellant, a dead body was put on his rickshaw and that was disposed of by being thrown at a particular place. Evidence of P.W.1 in paragraph-19 may indicate that Darbari was searched by P.Ws.1 9 and 2 and they could succeed in tracing him out and could also have him in their custody. P.W.1 has admitted meeting Darbari in paragraph-19 of his evidence. But, has stated that he did not go either to Darbari or to the S.P. or even to the police station for his statement. Likewise, P.W.2 has stated in paragraph-26 that he caught hold of Darbari but did not take him to the police station. A curious statement which was made by P.W.2 appears in paragraph-22 of his evidence when he was stating that he could meet Darbari in 1992. One has always to keep in once mind that the occurrence had taken place on 10.05.1993. If the occurrence has taken place on 10.05.1993 then how was it that P.W.1 could be meeting Darbari in that connection in 1992, i.e., one year prior to the date of occurrence. Not only the above the said Darbari was not produced in court nor his statement was recorded. 13. In addition to the above, as regards the real occurrence taking place as alleged, P.W.1 states that he was told by someone in market place in Baisakh whereas the P.W.2 says that he got the information at his house in Narkatiaganj and again changed the statement in the same paragraph-6 when he stated that he received the information about 10 the occurrence at his shop on 10.05.1993. In his paragraph-7, P.W.2 has admitted that the police station of Narkatiaganj is just close by his two shops, but he did not lodge any report. These are some of the evidences which are conflicting to each other and create a situation of doubt as regards the veracity of the prosecution case. 14. On consideration of the evidence, what I find is that these circumstances and important evidences were not considered by the learned trial Judge and as such he fell in error in recording the conviction of the appellant whereas he was acquitting two other accused persons. It is true that three lives were lost which included two nascent lives of newly born children. It could be on the either side of the probabilities that they had either been killed or the mother ended her life along with her children under a particular thought that if she had left her children behind her, they might further be tortured and face the irony of the world. These are things which are the realities of the world but such realities do not, in criminal trials, appear as evidence if they are not presented as real facts through witnesses. We might be merely convinced about the occurrence having taken place and we are really convinced that three 11 lives were lost, but, as regards the accusation of causing the loss of lives through a particular manner of committing the offence, the court finds unsatisfactory evidence which cannot be sufficient to uphold the conviction. This is the reason upon which I allow the present appeal, acquit the solitary appellant Abhay Kumar Barnwal. The judgment of conviction and the order of sentences passed upon appellant Abhay Kumar Barnwal are hereby set aside. He is acquitted of the charges. He is in custody. He is directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 2nd day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)