Criminal Appeal (SJ) No.28 OF 1996 [Appeal against the judgment and order dated 2.2.1996 and 8.2.1996 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.97 of 1994] 1. Vijoy Kumar Sharma 2. Nand Kumar Sharma 3.Raj Kumar Sharma, All sons of Sheo Pujan Sharma 4.Sanjharo Devi @ Marchia Devi wife of Sheo Pujan Sharma 5.Sheo Pujan Sharma son of Late Sohrai Sharma, All residents of village Khuthan, P.S. Nasriganj, District Rohtas …………………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Ashwini Kr. Sinha, Advocate For the Respondent : Mr. R.B. Roy ‘Raman’, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/ss.304B/34 and 201 I.P.C. and sentenced to R.I. for ten years and one year respectively with a fine of Rs.1000/- and in default of which further R.I. for three months by a judgment dated 2.2.1996 and 8.2.1996 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.97 of 1994. 2. The case of the prosecution is that on 15.10.1992 P.W.7 S.I. of Nasriganj P.S. heard a rumour that the daughter-in- law of Sheo Pujan Sharma had been strangulated to death by the accused persons, so he proceeded to the village and recorded the statement of Choukidar Gorhan Paswan, who stated that he learnt on the previous night that the daughter-in-law of Sheo Pujan Sharma had been throttled to death and thereafter also burnt. This 2 story was going on among the villagers as to how a woman would hang herself after burning herself. He further stated that when he heard it, he proceeded to the house of the appellants and when he learnt that the accused persons had taken the deceased to Nasriganj Hospital where they met Dr. Ramesh Prasad Singh and thereafter proceeded to some other place. In the morning some women were talking among themselves that the deceased had died and the accused persons had taken the dead body and concealed it some where. It was alleged that the appellant no.1 Vijay Kumar Sharma was not getting on well with his wife and had wanted to marry another girl, for which he had also seen some girl. The accused persons had wanted Vijay Kumar Sharma to get married to the sister-in-law of accused Nand Kumar Sharma since there was no son in their family. It was alleged that due to these reasons as also some dispute over demand of dowry that the deceased had been done to death so that Vijay Kumar Sharma could remarry. 3. It is relevant that the informant Chaukidar died during the pendency of the case and, therefore, could not be examined and this statement is inadmissible in law in absence of the examination of the informant. 4. During trial, the prosecution has examined eight witnesses. Out of whom, P.W.7 is the Investigating Officer, whereas P.W.8 is the Medical Officer. P.W.5 has been tendered and P.W.6 has not supported the case of the prosecution. P.W.1 and P.W.3 are the own brothers of the deceased, whereas P.W.2 is cousin brother and P.W.4 is the uncle of the deceased. 3 5. Since it is a case u/s.304B I.P.C. and the prosecution was firstly required to prove that the marriage had taken place within seven years of death,P.W.2 has stated that the marriage had taken place on 10.7.1989, whereas the Gauna had been performed on 18.4.1992 and the occurrence had taken place on 14.10.1992 and, therefore, the marriage had taken place within seven years of the death of the deceased. As for the second ingredient that the accused had demanded dowry soon before the death, it has been stated by all the witnesses that neither at the time of marriage nor at the time of Gauna was any demand of dowry. However, they stated that after the Gauna was performed the accused persons had demanded dowry, but it does not appear trustworthy since there was a difference of three years between the marriage and Gauna and if any demand had to be made by the accused persons it would have been in that period The third ingredient which the prosecution had to prove was that the death of the deceased was under unnatural circumstances which is also not very reliable in view of the fact that neither P.W.1 nor P.W.2 or P.W.3 who are close family members have stated about identification of the dead body on its recovery and P.W.4, who has stated this fact, has given contrary description about how the dead body was found from the banks of river Sone whereas he has stated that the dead body was wrapped in a sheet the Inquest report speaks otherwise. Moreover, it is surprising that P.W.4 was not a witness to the Inquest which was prepared after the dead body was recovered even though he and the Investigating officer both claimed he was present there. 4 Moreover the evidence of P.W.7 I.O. is notable that he accepts that neither particulars of the case had been mentioned nor did he sign on the Inquest report. The person, who prepared the Inquest report, has not been examined by the prosecution nor have any of the witnesses of the same been examined. Further, the Investigating Officer has stated that P.W.4 had been dispatched along with the dead body for postmortem examination, but the postmortem examination report reveals that the dead body had been brought by one constable, who has not been examined by the prosecution and it does not mention that the same was identified by him. 6. Under the circumstances, the fact that the dead body, which had allegedly been recovered, was that of the wife of appellant no.1 has not been satisfactorily proved by the prosecution. Hence the third ingredient, which is also essential for proving a case u/s.304B I.P.C. has remained a mystery. In this background Exhibit A, which is a letter written by P.W.3 to the parents-in-law of the deceased assumes importance since noteworthy that it does not mention about any bad relationship between the parties. This letter is said to have been written on 11.10.1992 that is just three or four days before the occurrence. 7. A further disconcerting material in the present case is that the First Information Report even though was instituted on 16.10.1992 it has been received in the court on 17.10.1992 and incidentally the postmortem examination report was also conducted on 17.10.1992 which casts suspicion on the prosecution case as to whether the fard beyan was indeed recorded on 15.10.1992 at 5 11.30 A.M. or whether the same was recorded after the postmortem examination report so it was in consonance with the same. 8. In this background, it is difficult to sustain the conviction of the appellants u/s.304B I.P.C. and, therefore, giving them benefit of doubt they are acquitted from the charges u/ss.304B and 201 I.P.C. and judgment and order dated 2.2.1996 and 8.2.1996 passed by the 7th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.97 of 1994 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Patna High Court Dated, 28th June, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )