Criminal Appeal (SJ) No.343 of 2007 Against the judge of conviction dated 31.01.2007 and order of sentence dated 02.02.2007 passed by Additional Sessions Judge, Fast Track Court No.IV, Supaul in Sessions Trial No.105 of 2005 arising out of Kishanpur P.S.Case No.42 of 2003, G.R.Case No.373 of 2003. 1. ASHOK KUMAR MANDAL & 2. DEO NARAIN MANDAL....... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: Sri Kanhaiya Prasad Singh Senior Advocate & Sri Amrit Abhijat, Advocate. For the Respondent:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against the judgment dated 31.01.2007 passed by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court No.IV, Supaul. By the impugned judgment the learned trial Judge held the two appellants guilty of committing offences under Sections 304B and 201 IPC and Section 4 of the Dowry Prohibition Act. After hearing the appellants on sentence 2 on 02.02.2007 each of them was directed to suffer rigorous imprisonment for ten years under Section 304B IPC, rigorous imprisonment for three years under Section 201 IPC and rigorous imprisonment for six months under Section 4 of the Dowry Prohibition Act as also to pay a fine of Rs.5,000/-. 2. Some of the admitted facts are that Sulekha Devi, who was the sister of Suresh Kumar (P.W.15) was married to the appellant Ashok Kumar Mandal, who is the son of appellant Deo Narain Mandal. It is not denied that the lady was residing on the day of occurrence i.e., on the 29th-30th May 2003 in the house of the appellants and further that while residing there Sulekha Devi died an unnatural death. 3. The allegation was that at the time of marriage presents and ornaments were given, but the cash balance of Rs.40,000/- was to be paid up by the informant to the accused persons as it had remained due to be paid by the informant. It was stated that after the deceased had gone to her matrimonial house for the first time after marriage and came back from there, she stated that the accused 3 persons were demanding Rs.40,000/- to be paid and were asking for an early payment by the informant. 4. The Dwiragman ceremony of the deceased Sulekha Devi was performed on 08.05.2003 and then on the deceased Sulekha Devi always remained at her husband’s house. The informant stated that on 29.05.2003 he along with Jai Prakash Yadav(P.W.13) went to the house of the appellants at village- Phulwaria and asked for the Bidai of his sister from accused Deo Narain Mandal. It was stated that on that particular occasion the accused persons, like, Hari Yadav, Raj Narayan Mandal and Deo Narayan Mandal hurled abuses upon the informant and refused to allow Sulekha Devi to accompany the informant. Not only that the accused persons were bent upon assaulting the informant and his companions and, as such, the informant stated that he was very much apprehensive about being assaulted and thereby losing their lives. 5. The informant further stated that on 30.05.2003, Manu Mandal reached his house at 12.30 P.M. to inform that Sulekha Devi, the sister of the informant, was no more as she 4 had been murdered and her dead body had been cremated. After hearing the news, the informant along with witnesses, like, P.W.14 Abhinarayan Mandal, Deep Narain Mandal(P.W.11), Jai Prakash Yadav(P.W.13) and Ashok Kumar(P.W.12)went to the house of the appellants to enquire about his sister. The informant found that the inmates of the house had absconded and after making enquiries from their neighbours, it was pointed out by them to the informant that Sulekha Devi had been murdered last night itself and her dead body had been cremated by the appellants. The informant and his companions went to the cremation ground where the dead body had been burnt to ashes. It was the orchard situated south of the house of Deonarayan Mandal. The informant alleged that he was convinced that the appellants had committed the murder of his sister and had cremated her dead body. 6. On the basis of Ext-2, the written report of the informant, the FIR of the case, Ext-3, was drawn up and the case was investigated into by S.I., Devendra Kumar(P.W.16) who stated that after having taken over the investigation of the case, he 5 recorded the further statement of the informant and thereafter proceeded to the place of occurrence-village, namely, Phulwaria and reached the house of the appellants, inspected the house and recorded the findings thereon in the case diary and after recording the statements of other witnesses, namely, Jaiprakash Yadav(P.W.13), Deep Narayan Mandal(P.W.11), Abhinarayan Mandal(P.W.14), Ashok Kumar(P.W.12) and others and finding the materials sufficient sent up the accused persons for trial. 7. The defence of the accused persons was that the deceased had indeed died of diarrhoea and after detecting the disease, they attempted to shift her to a doctor, during which course she died and as such they decided to inform the father of the lady and her family members. Accordingly P.W.7 Manu Lal Mandal was sent for informing the parents of the deceased and other relatives about the incident and also to invite them to come down to the house of the appellants to participate in the cremation of the dead body. Because, they were not turning up and it was getting late, so there was a general consensus that 6 the dead body should be cremated and, accordingly, it was cremated. It was suggested that on account of certain grudge some of the witnesses were nursing in their hearts that they came out to implicate the appellants in a false case. 8. In support of the charges, the prosecution examined as many as 16 witnesses and one was examined by the court in exercise of its powers under Section 311 Cr.P.C. Most of those who were produced by the prosecution were in fact supporting the defence version that the deceased Sulekha Devi was suffering from diarrhoea and while she was being shifted to hospital she died on way and she was brought back to the house whereafter a collective decision was taken that Manulal Mandal be sent to the parental house of the deceased to inform her parents and others about the unfortunate death of the deceased so that they could come and participate in the cremation. The parents of the deceased did not turn up and because it was getting late, a consensus was reached that the cremation should be gone through. Accordingly, the dead body was cremated. The evidence of witnesses 7 as regards the support of defence version or might be that it was the truth, could be assessed by one evidence of P.W.8 when he was in cross-examination telling the court that the case was out and out false. Out of the total number of 16 prosecution witnesses, P.Ws.1 Nathuni Prasad Yadav, P.W.4 Saryug Yadav, P.W.9 Balram Mandal and P.W.10 Ganga Mandal were declared hostile but during their cross-examination by the prosecution nothing appears brought on record so as to enforcing the evidence of the prosecution as regards the proof of the charges. Witnesses, like, P.W.12, P.W.13 and P.W.14, the informant P.W.15 and also C.W.1 Bhaiya Lal Mandal appear coming out with a version that they were informed on a particular day by P.W.7 Manulal Mandal that the deceased died and thereafter they came to the house of the appellants, found that none was present there and they learnt from enquiries made from persons there that Sulekha Devi had been murdered and cremated. They have also stated that the lady Sulekha Devi was complaining against the appellants of being pestered for not getting Rs.40,000/- which remained to be paid out of 8 the total amount agreed to be paid at the time of marriage and for which there had been some serious bickering at the time of feeding the Barati and that resulted in an incident which was completely in bad taste so much so that the witnesses admitted that they were carrying a deep grudge due to that particular incident against the accused persons. The second incident upon which the grudge is expressed against the appellants related to, as per the evidence of all these witnesses, the incident when P.W.15 was accompanied by everyone of them to go to the house of the appellants. They went to the house of the appellants for obtaining Bidai of the deceased lady from her matrimonial house and, incidentally, the lady came out of her privacy and she was badly chastised by the appellants and was sent back inside the house. Not only that, when the witnesses placed the proposal that the lady should be allowed to accompany them and should be allowed to go to her parents house, the appellants are said to have become quite furious and to have hurled choicest of abuses upon the witnesses and that again caused a serious grudge in their mind as regards the 9 behaviour of the appellants. 9. On perusal of the evidence of P.Ws.11, 12, 13, 14 and 15, the common thread passing through the evidence of those witnesses is that they do not deny that they had learnt from P.W.7 Manulal Mandal that Sulekha Devi had died. None of the witnesses say that Sulekha Devi had been murdered and that was the message which had been passed on to them generally or individually by P.W.7. P.W.7 Manulal Mandal appears stating that it was the collective decision of the accused persons and other persons of the village after the death of Sulekha Devi that her parents be informed and invited to participate in cremation and as such he went to convey the message to them. Thus, there does not appear any truth in the evidence of those witnesses that it could be the story as they were telling the court which was earlier told to any of them by P.W.7. How they could learn about the murder of Sulekha Devi goes sourceless. They say that they came to the house of the appellants and there they made some enquiry finding that none of the inmates of the house was present there. But who were 10 those persons who were contacted by them or who were telling the witnesses that it were the accused persons who had killed the deceased remains wrapped in mystery. No one came forward out of such a huge number of witnesses or any one among the villagers, to tell the court that he could be one person who had been contacted by P.W.1 to P.W.15 to be told that the incident had occurred as per their story. Thus, the evidence remains in the realm of speculation by the witnesses. 10. It is true that in such class of offences where the deceased was bride of the family and was residing inside the walls of the house, there might be an offence which is committed inside it and it may not be necessary that there could be witnesses who come forward to depose on the real state of things. But, even in such type of offences unless witnesses are inspiring confidence it could be simply hazardous for any court to go on to believe the witnesses for recording a conviction. P.W.11 Deep Narayan Mandal was telling the court that he learnt about the incident from P.W.1 Nathuni Prasad Yadav, who was declared hostile, he was not supporting 11 the prosecution charge in any manner. He was not even telling the court that he had ever talked about the incident to any one. Thus, that particular source of information which was claimed by P.W.11 disappears as could be the case with P.W.12 Ashok Kumar as he also claimed to have learnt about the incident from P.W.1. Remaining three witnesses, thats, P.Ws.13, 14 and 15 did not learn about the murder of Sulekha Devi from any particular person rather they stated, as I have just discussed a bit earlier, that it was P.W.7 who came to inform P.W.15 the informant that his sister had died. So the case that Manulal Mandal was conveying the message of the deceased being murdered was basically not for those witnesses as the message was not of murder but was of death, then the evidence of those witnesses were suffering from basic disqualification of narrating a fact to the court which was never said by any one to them, specially by P.W.7. That flaw, in my opinion, makes the evidence of P.Ws.13, 14 and 15 inadmissible on account of being inconsistent with the provisions of Section 60 of the Evidence Act because a witness has to say that 12 he heard the fact being told to him and that process of being relating a fact must be specified as to from whom he had learnt the fact. That not being available in the case, as I have just pointed out, the whole evidence of P.Ws.13, 14 and 15 is rendered in-admissible. In addition to those, the evidence of P.Ws.11 and 12 stand inadmissible and as such not acceptable in law. 11. The most striking feature of the case was that witnesses appear going to the police station after they had thought out as to what action should be taken. This is stated by P.W.13 and other witnesses that they, having come to the house of the appellants and having found none present there, pondered over as to how to proceed in the matter. They went together to the police station. It has come in the evidence of P.W.15, the informant himself, that they went to the police station, filed a written report but no one was making any statement there before the police. It has been stated by the same witness P.W.15, that after 12-14 days of filing of the report and for those number of days after the incident had occurred, the police was arriving at the 13 village and then witnesses were coming out to make a particular statement. This remains a riddle, as to why, firstly, the witnesses were not opening out to tell whatsoever story they had learnt or gathered from persons to police and why they required so many number of days to come out to make a statement. A natural inference which this Court could draw is that they were probably reconciling and preparing themselves for stating an incorrect fact in support of an incident which had never occurred and as such they were pondering over as to how they should come out to make out a story so as to making it believable. 12. These are some of the reasons which I have found after considering the evidence. Besides, I find that a huge number of witnesses most of whom not being declared hostile, like, P.Ws.2, 3, 5, 6, 7, 8 and 9 have stated that the deceased died of diarrhoea and that information was properly given to the family members of the deceased and further that the parents of the deceased or any of her relatives having not turned up and it was getting late as regards the cremation of the dead body, with consensus, 14 the villagers finally decided to cremate the dead body and accordingly, the dead body was cremated. It is true that one line of evidence has come from P.W.15 that the deceased had once narrated to him that she was being tortured and abused for non payment of Rs.40,000/-, the balance which was promised to be paid but some of the witnesses have evaded a very direct question on the marriage as to how it was initiated and while going through that part of the evidence of the witnesses, the court could find an inference and probability coming out of it that the marriage was dowryless. It was simple. There might have been some for other reasons which could have left a scar in the hearts of the witnesses and ultimately they were attempting to settle a score on that account. 13. Having expressed the opinion, as I have formed after considering the evidence of the witnesses, I am of the view that it was a case in which the appellants ought to have been acquitted after being extended the benefit of doubt. It was doubtful that the deceased Sulekha Devi had been killed. There was probability more tilting towards the 15 defence that she might have died of diarrhoea. 14. In that view of the matter, the present appeal is allowed by setting aside the judgment of conviction and the sentences passed upon the appellants. Appellant Ashok Kumar Mandal is in custody. He shall be released forthwith, if not wanted in any other case. As regards appellant Deo Narain Mandal, he is on bail. He shall stand discharged from the liabilities of his bond. Patna High Court, Dated, the 28th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)