CRIMINAL APPEAL (S.J.) No.154 OF 2001 **** Against the judgment and order, dated 09.05.2001, passed by Shri Jainandan Sharma, Additional Sessions Judge, XI, Patna, in Session's Trial No. 716 of 1994 arising out of Janipur P.S. Case No. 387 of 1993 **** 1. Arun Kumar Singh, s/o Jailendra Singh 2. Babi Debi @ Manju, w/o Arun Kumar Singh, Both residents of village Nehrua, P.S. Phulwarisharif, district Patna .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. Mr. Kanhai Prasad Singh, Sr. Adv. With Mr. Chandra Mohan Jha, Adv. For the State .. Mr. S.N. Prasad. A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The appellants, Arun Kumar Singh and Babi Debi, have been convicted under Sections 498A and 307 of the Penal Code and 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for seven years for offence under Section 307 of the Penal Code and have been further sentenced to undergo rigorous imprisonment for two years for offence under Section 498A of the Penal Code and further sentenced to undergo rigorous imprisonment for three years for offence under Section 27 of the Arms Act and accused, Baby Debi has 2 been convicted under Section 498A of the Penal Code and has been sentenced to undergo rigorous imprisonment for two years. 2. The prosecution case as per the fardbeyan of informant, Sanjay Kumar Sinha, that he has married his younger sister, Sandhya Kumari, with Ajay Singh, the third son of Jailendra Singh. It has further been alleged that when his sister gone to Sasural then her Bhainsur (elder brother of her husband) Arun Kumar Singh, and his wife, Babi Debi, demanded rupees forty thousand in cash and subjected her to cruelty by various means since the informant was unable to fulfill the demand and so he requested several times for not subjecting her to cruelty. It has further been alleged that on 21st November, 1993, the informant sent ‘prasad’ of ‘chhath puja’ through Ramasheesh Ram to his brother-in-law, but, Arun Kumar Singh and his wife abused Ramasheesh and refused to take the ‘prasad’ and sent it back with a letter regarding the refusal. Thereafter, in the evening the informant along with co- villagers, Mahendra Singh (not examined), Hari Narayan Singh (not examined), Rohan Singh (P.W. 5), Mukesh Prasad Singh (P.W. 3), Mahendra Pratap Singh (P.W.1), Birendra Singh (P.W. 2), Upendra Singh (not examined), Shashi Bhushan Singh (not examined) and Sanjay Singh reached to the house of Arun Kumar Singh at Village Muraunha. Arun Kumar Singh demanded the dowry and demanded to pay rupees forty thousand and on the informant’s inability to pay that he has not got the money, but, assured that he will pay him later then it is alleged that Arun Kumar Singh abused and went into the house, brought a gun and fired thrice on the informant and other persons. Further case of the 3 informant is that he along with others fled away non-injured. On the basis of the written report of the informant, dated 21.11.1993 first information report has been lodged on 22.11.1993 and after investigation the charge sheet was submitted on which cognizance was taken on 08.03.1994 and the case was committed to the Court of sessions on 17.06.1994. After the commitment the charge was framed for offence under Sections 307 and 498A of the Penal Code and 27 of the Arms Act against accused Arun Kumar Singh, but, against Babi Debi charge under Section 498A of the Penal Code was found. 3. During trial nine witnesses were examined. P.W. 1 is Mahendra Pratap Singh, P.W. 2 is Birendra Kumar Singh, P.W. 3 is Mukesh Prasad Singh, P.W. 4 is Rajendra Prasad Sinha, P.W. 5 is Rohan Prasad Singh, P.W. 6 is Pradeep Kumar, P.W. 7 is Sandhya Kumari Sinha, P.W. 8 is Sanjay Kumar Sinha and P.W. 9 is Jai Narain Prasad. The documentary evidences adduced on behalf of the prosecution are Exhibit 1, the signature of Arun Kumar Singh, Exhibit 2 is the seizure list, Exhibits 2/1 to 2/3 are the signatures of Gopal Sharan Singh and Pradeep Kumar, Exhibit 3 is the fardbeyan, Exhibit 3/1 endorsement and signature of J.M. Prasad, Exhibit 3/2 is endorsement and signature of Officer-in-Charge, Phulwarisharif Police Station on fardbeyan, Exhibit 4 is formal first information report, Exhibit 5 is the certified copy of the order, dated 11.01.1995, passed in Criminal Revision No. 373 of 1995 and Exhibit 6 is the certified copy of the application of Criminal Revision No. 373 of 1995. 4 4. After considering the oral and documentary evidences adduced by the prosecution as well as considering the submission made by the parties the learned trial Court convicted and sentenced the accused persons, as stated above at the out set. 5. The learned counsel for the appellants, however, contended that it is a peculiar case as the husband, father-in-law, mother- in-law or other family members have not been made accused, except the Bhainsur and gotni. The, further, peculiar facts and circumstances of the case is that at the time of occurrence the victim was not residing at her Sasural. The occurrence alleged to be of 20th November, 1993, and there is allegation of demand of rupees forty thousand, however, the allegation that the victim wife was subjected to cruelty, but, the allegation of subjecting cruelty is vague and omni bus and not mentioned the manner in which the victim had been subjected to cruelty. It has further been contended that though there is allegation of firing of three rounds and the said attempt was made in a Baithka which is of the size of 6’ x 10’ and the prosecution case is that ten persons were there, but, none of them got injury by the alleged firing and further there is contradiction in the evidence of the witnesses and the witnesses have developed the case. It has further been contended that the investigating officer has not seized any pellet or empty cartridge from the place of occurrence and there is no sign of any firing. Further there is contradiction in evidence of witness regarding the firing made by Arun Kumar Singh and a defence has been raised that the appellants have falsely been implicated rather Sandhya Kumari wants have share in the property which has been earned by Arun 5 Kumar Singh and since Arun Kumar Singh refused to give share in the property, which has been earned by him case has been falsely instituted to pressurize the appellants to give share in the property. 6. Learned counsel for the State, however, contends that the prosecution has been able to prove the charges as alleged that there was demand of rupees forty thousand and subjecting cruelty for non-fulfillment of demand and when ‘prasad’ of ‘chhath puja’ it was refused. 7. Hence, question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubt. Now I proceed to consider the evidence in the light of the submission made by the parties. 8. The prosecution case has gathered from first information report and the evidence of the witnesses that marriage was solemnized on 17th May, 1993. There is allegation of demand of rupees forty thousand by the appellants and subjecting to cruelty. The informant sent ‘prasadh’ of ‘chhath puja’ which was returned with a letter of the appellant, Arun Kumar Singh that he is not hungry of ‘thakua’ then the informant went with several persons to solve the problem. There Arun Kumar Singh, again, demanded rupees forty thousand, the informant showed his inability then Arun Kumar Singh abuses the informant, went inside his house and came with a gun and fired three shots. However, as alleged that none was injured. 9. Hence, the prosecution case is in two parts. First part is about the demand and subjecting cruelty for non-fulfillment of 6 demand and other part about the occurrence of firing dated, 20th November, 1993. 10. With regard to first part P.W. 1 stated that Sandhya (P.W. 7)disclosed about the demand and subjecting cruelty by Arun Singh and his wife. P.W. 2 has stated that Sanjay Kumar Singh (P.W. 8, the complainant) disclosed about the demand and subjecting cruelty. P.W. 3 has stated that Sandhya (P.W. 7) disclosed about the demand and subjecting cruelty by abusing. P.W. 4 is the father of the victim, however, he stated that sasural people demand and subjecting her to cruelty and Arun Kumar Singh and Babi Debi abuse and assault as they abstain the victim fromgoing to naihar. P.W. 5 has stated about the demand and subjecting cruelty, but, the allegations are vague and there is no mention that there is demand of dowry. P.W. 7 is the victim and there is allegation that she was assaulted and threatens to kill. P.W. 8 is the informant, the brother of the victim, and has also stated about the demand and subjecting cruelty. However, the allegation of the witnesses was omni bus and general in nature. The facts also come out from the evidence of the victim, Sandhya Kumari, that marriage was solemnized on 17th May, 1993, thereafter went to sasural. As per the evidence of P.W. 7, Sandhya that she return to naihar on 05th June, 1993. She has further stated that her husband used to live with her at sasural. She has further stated that the ‘bhaisur’ and ‘gotni’ live in a rented house and for which they bear the costs. She has further stated that her husband is B.A. and M.A. and further accused, Arun Kumar Singh and his wife, i.e., the ‘bhainsur’ and ‘gotni’ of the victim has got land in his name in 7 ‘Mitramandali Society’, which she states to have been purchased from joint family property. She has further stated that when she was assaulted in sasural, but, the date, time and day is not known to her or she has not remembered the date, time and day of assault. She has further stated that the accused persons has business of ‘saloon’ though she has denied the knowledge of business of shoes of the accused in her evidence, but, she further stated that she wants to have a share in the land, the business of shoes and saloon. Her husband also wants a share in the same. She has denied the suggestion that she has instituted the police case for the partition or share in the said property. It has come in evidence of P.W. 4, who is the father of the victim that Arun Kumar Singh lived in Government quarter at Chitkohra, which he had got from the State Government. P.W. 3 has stated that the accused, Arun Kumar Singh (accused), Ajay and Bijay are three brothers and their parents are alive and three brothers along with his father got fifteen bighas of land and Ajay, husband of the victim, Sandhya (P.W. 7) look after the agriculture and the produce of the said agriculture is being used by the family. He has further stated that Bijay is separate and Arun Kumar Singh is in service. 11. Hence, under these facts and circumstances when the husband of the victim is looking after the affairs of agriculture of joint family property, the father and mother is alive and further the fact that the accused, Arun Kumar Singh, is living in separate quarter and is in service and further the fact that the victim married on 17th May, 1993, and she came to naihar on 05th June, 1993, and so remained in sasural 8 only for eighteen days, in such a situation there is allegation of demand and subjecting cruelty for which evidence are omni bus and vague. P.Ws. 1, 2, 3 and 5 have stated that they have learnt about the demand and subjecting cruelty from Sandhya or from the brother of Sandhya, who are victim (P.W. 7) and informant (P.W. 8). The father of the informant has stated that all the sasural people used to demand and subjecting cruelty. However, the other family members has not been made an accused, the husband has also not been made accused and further it has come that the accused Arun Kumar Singh has got a land in ‘Mitramandali Society’ and has got a business of saloon and shoes and the victim has categorically stated that she wants to have a share in the said property and, hence, taking the entire facts and circumstances the allegation of demand and subjecting cruelty in the background of these facts that the victim remained in sasural only for eighteen days and the husband of victim is managing the agriculture of the joint property of the family. The father-in-law and mother-in-law of the victim are alive, but, only Arun Kumar Singh and his wife has been made accused for alleged demand and subjecting cruelty living aside the husband and other family members speaks a lot and the allegation has been made only against Arun Kumar Singh regarding demand and subjecting cruelty when the victim specifically stated that she wants share in the land, which is in the name of Arun Kumar Singh, in the business of shoes and saloon. In this back ground if the evidence of the witnesses P.Ws. 1, 2 and 3 are said to have that they learned about the demand and subjecting cruelty from Sandhya (P.W. 7) and his brother (P.W.) 8) and, since, the evidence of Sandhya 9 Kumari, P.W. 7, and P.W. 8 on the demand and subjecting cruelty is neither reliable nor cogent nor worthy of confidence and so does not inspire confidence particular when Sandhya Kumari stated that she does not remember the date, time and day of the alleged assault on her when she remained in sasural only for eighteen days and, further, the probability of false implication for share in land, saloon and shoes business exist, hence, taking into consideration the facts and circumstances, I find and hold that the prosecution ahs not been able to prove the charges regarding Section 498A of the Indian Penal Code against the accused, Arun Kumar Singh and Babi Debi beyond reasonable doubts. 12. The second part of the occurrence is that ‘prasadh’ of ‘chhath puja’ was sent by one Ramasheesh, which was returned with a letter of Arun Singh that he is not hunger of ‘thakua’ and do not repeat it and then informant along with 7-8 persons went there, Arun Kumar Singh gone inside the house and came armed with a gun. However, there is allegation that the occurrence alleged to have been taken place on 20th November, 1993, however, the first information report is lodged on 21st November, 1993, and there is delay in lodging the first information report. However, the prosecution case is in the fardbeyan that the informant went there along with ten persons and there a demand was made and on refusal there is allegation of abuse and accused, Arun Kumar Singh, came with a gun and fired. However, P.W. 1 has stated that contiguous south of main building there is baithka and dalan. Near dalan is a room facing north and in that room they were doing panchayati 10 and in the room there were ten persons present and all were sitting on a chowki. He has stated that Arun Kumar Singh was sitting in dalan with a gun then he said that Arun Kumar Singh fired from roof. There is no mention of firing from roof in the fardbeyan. P.W. 2 has also stated that Arun Kumar Singh made three fires. P.W. 2 has stated that house of accused is facing west and there is osara and after osara there is a room and in that room they were sitting which is of a small sized room. He has further stated that Arun Kumar Singh went on the roof and he fired three fires from the roof. Further, P.W. 3 has stated that during the talk of compromise Arun Kumar Singh got excited, went inside the house, came with the gun in the baithka and fired upon them in the Baithka. He has further stated that Arun Kumar Singh also fired from the roof and, hence, the witnesses are shifting the place of firing from one place to another, i.e., Baithka to roof, which is not mentioned in the fardbeyan, which was lodged after due deliberation, after a day of the occurrence. P.W. 4 is the father and he has stated that he has not seen the occurrence. P.W. 5 has stated that Arun Kumar Singh got excited, brought the gun and fired thrice, but, none injured. P.Ws. 6 and 7 are not witnesses on the point of firing as the victim, P.W. 7, was residing at the time of said occurrence at naihar. P.W. 8 is the informant and has also stated about the firing. 13. Hence, from the evidence of the witnesses it is apparent that at the time of occurrence the panchayati was going on in a room where Arun Kumar Singh got agitated, went inside the house, brought gun and fired thrice on the prosecution party. However, the evidence of the witnesses that they were sitting in a room where the 11 compromise was going on where Arun Kumar Singh, after being agitated went inside the house and brought the gun and fired. P.W. 9, the investigating officer, has stated about the inspection of the room that contiguous south of the main darwaza there is baithka of the size of 6’ x 10’. Further, P.W. 9 the investigating officer has stated that he did not find any sign of bullet and pellet on the wall. He did not find any empty cartridges from baithka. Further, taking into consideration of the fact as emerges from the evidence of prosecution witness that ten persons were sitting in a room of the size of 6’ x 10’ Arun Kumar Singh came with a gun and fired thrice, but, it is strange that none of them got injured. There is allegation that the firing was made in the room, but, none injured by the firing and they managed to escape. The investigating officer also did not find any objective finding about any sign of pellet or bullet on the wall. However, during the evidence the witnesses developed a new story that Arun Kumar Singh fired from roof as well as in the room and, hence, it appears that the prosecution is changing stand and developing a concocted story and further taking into consideration the fact that the investigating officer also did not find any objective evidence about the firing, none injured by the said firing also indicates improbability of the prosecution story and further in the background of the evidence of the victim, Sandhya Kumari that Arun Kumar Singh has got land in his name in ‘Mitramandali Society’ from the joint family property and further has got a business of saloona and shoes and she wants to have a share and her husband also wants the share, specifically indicates that case has been filed for pressurizing Arun Kumar Singh to yield for a share. 12 14. Taking into consideration the evidence of witnesses I find and hold that evidence of the witness on the second part of occurrence about firing is neither reliable, cogent nor unimpeachable evidence about the allegation made about the charges and, hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts and learned lower Court appears to have mechanically went in the evidence taking statement of the accused persons in gospel truth without well appreciating the facts or the evidence in the background of the objective evidence or objective finding and the fact that only Arun Kumar Singh and his wife have been implicated in the case under Section 498A of the Indian Penal Code leaving the husband and other family members and further the fact that the prosecution wants to have a share in the land which is in the name of Arun Kumar Singh and share in the business alleged to be run by him. 15. Taking into consideration the entire facts and circumstances I come to irresistible conclusion that the prosecution has not been able to prove the charge leveled against the accused persons either for firing or for subjecting cruelty and the learned lower Court misdirected itself and holding the appellant guilty without properly appreciating the fact that the investigating officer has not found any objective evidence about the fire and further the witnesses are at variance and even deposed against the prosecution case in the fardbeyan which is not acceptable and further the prosecution has not been able to prove the charges and even evidence adduced for subjecting cruelty does not inspire confidence and whatever alleged is vague and omni bus and on a 13 vague evidence the prosecution can not prove the charge beyond reasonable doubt and, hence, the judgment and order of conviction recorded by the learned lower Court is hereby set aside and the accused persons are acquitted of the charges, discharge from the liability of bail bond, if any, and consequently the appeal is allowed. ( Gopal Prasad, J. ) Patna High Court, The 16th April, 2010, N.A.F.R./ S.A.