Criminal Appeal (SJ) No. 486 of 2008 ------ Against the judgment and order of conviction and sentence dated 17.5.2008 and 20.5.2008 passed by Shri Diwakar Mishra, Additional District and Sessions Judge- cum- FTC V, Khagaria in S.T. No. 385 of 2005. --------- Brajesh yadav, son of Sri Indu Yadav, resident of village – Koela, Police station – Gogri (Pasraha), District – Khagaria …………… Appellant Versus The State of Bihar ……………… Respondent ------- For the Appellant : Smt. Kumari Amrita, Advocate For the State : Shri Ajay Mishra, A.P.P. ------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant was indicted of committing offence under section 304B IPC after being put on trial in S.T. No. 385 of 2005 by the learned Presiding Officer of Fast Track Court IV, Khagaria and by judgment dated 17.5.2008, was held guilty of committing the said offence. After being heard on sentence on 20th May, 2008, the appellant was directed to suffer RI for ten years as also to pay a fine of rupees ten thousand, else to suffer RI for six months. The appellant appeals to this Court against the judgment of conviction and sentence which was imposed upon him. 2. The prosecution story is based on the fardbeyan (Ext.4) of P.W. 7 Ramakant Yadav. It was stated by him that his sister Savita Devi was married to the present appellant on 30.1.2001. At the time of marriage, a lot of presents were given to the lady as per customs but still the appellant used to demand rupees one lac as additional dowry. On account of the demand not being fulfilled, the appellant was not performing the Bidagari of the deceased, as a result of which the informant and his family members arranged for the above amount and paid the same to the 2 appellant so that the deceased could unite with the present appellant. The Dwiragaman ceremony was performed on 12.5.2003 and the lady went to reside with the present appellant in his house. 3. It was stated by the informant that in spite of having given rupees one lac, the appellant was not satisfied and was pressurizing the deceased to bring a motorcycle from the informant, the information about which, was conveyed by the deceased to the informant. It was stated that it was not only the appellant but also his family members who were demanding the motorcycle and on account of not getting the same, they were harassing and ill treating the lady so much so that she was being abused and assaulted even. The informant stated that he sent his brother Rohit Kumar (P.W. 6) to take stock of the situation to village Koela and he came back and informed that he was not being allowed to meet the decease and in spite of the opposition in that behalf, he succeeded in meeting the deceased, who stated to him that she was being harassed and humiliated by the appellant and his other family members. P.W. 6 stated that he talked to the appellant and his other family members requesting them not to ill treat the lady and also requested to allow the lady to go to his house, upon which, the appellant and his other family members were putting the demand of a motorcycle as a pre-condition to allow the lady to accompany him to his house. It was stated by the informant that on 4.3.2004 at about 6.30 A.M. when he was at village Navtolia Bhimri, P.W. 6 and Manoj Yadav (P.W. 5), who was one of his neighbours, came and informed him that Savita Devi had been murdered and on getting this information, he along with P.W. 5 came to the house of the appellant to find that the dead body of the deceased was lying on the verandah of the house and no family member was present there. After making enquiries from the persons residing in the neighbourhood, the informant could not get any satisfactory information and when he was about to set out to the police station, the Officer Incharge of the police station came and recorded Ext.4. 4. The I.O. of the case has not been examined, but what appears from the records is that on the basis of Ext. 4, FIR of the case was drawn up and 3 investigation was taken up, which ended in forwarding of the appellant for trial, which ultimately ended in the impugned judgment. 5. The defence of the appellant was of his innocence and of false implication. 6. Twelve witnesses were examined by the prosecution during the course of the trial, out of whom, P.Ws 9, 10, 11 and 12 were declared hostile. Dr. Ashesh Kumar (P.W.1) was examined in-chief, who held the postmortem examination on the dead body of Savita Devi but, on account of the defence counsel not turning up for cross-examination, appears discharged on 5.8.2006. However, the record indicates that a prayer was made by the defence to recall P.W. 1 for cross- examination and, accordingly, an order was passed on 30th March, 2007 recalling P.Ws. 1, 2 and 6 for their cross-examination. But, none of the witnesses turned up. P.W. 2 Sachchidanand Sahu was a friend of the informant and he also stated that he learnt from P.Ws 6 and 7 about the death of Savita Devi and because he was on cordial terms with the informant, he also went to the house of the appellant to find the dead body lying in the verandah of the house where the police officer came and held inquest and prepared the inquest report, which was signed by P.W. 2 as a witness. Inquest report has been marked as Ext. 2. P.W. 3 Surendra Yadav was the Bahnoi of P.Ws 6 and 7 and he has stated that he had also accompanied P.Ws 6 and 7 to the house of Savita Devi to find her dead body and had further stated that the present appellant was an unemployed youth, who had established a school, which had not taken off well and, as such, the informant and others had injected the finance of rupees one lac so as to reviving the institution for creating an employment for the appellant, but the appellant was demanding a motorcycle in addition to rupees one lac, which had already been paid and on account of not getting the same used to ill treat and torture the lady, which fact was conveyed by the deceased herself. It appears from the cross-examination of P.W. 3 and other witnesses as if the appellant had been kidnapped and was forced to marry the deceased and, as such, there could be some ill will between the parties as appears suggested to the witnesses. Besides, 4 in the cross-examination part of the evidence of P.W. 3, this witness has stated that he had assured the appellant for rendering financial assistance to him for reviving his school, which had gone dead. It further appears that the witness was stating that the appellant had gone to his house for demanding the dowry. The contention by way of criticizing the evidence of P.W. 3 was that if the witness himself was ready for rendering the financial assistance to the appellant, then the fact which was stated by him in paragraph 6 that the appellant had himself gone to his house for demanding the dowry, does not come to reason. It appears that P.W. 3 was probably making statement for the first time in court out of some psychological reasons, which may be helping out the prosecution in ensuring the conviction of the appellant. 7. P.W. 4 Rajesh Kumar was the cousin brother of the deceased which had been admitted in the very first line of his evidence. He has also stated that the appellant was demanding rupees one lac for reviving his school and was also demanding a motorcycle and on that account, the appellant was ill-treating the lady. It was stated by P.W. 4 that he also went to see the deceased to village Koela but was not allowed to see her but any how he could meet her. She stated to P.W. 4 that the accused persons were demanding motorcycle and on account of not getting the same, they were ill treating and harassing her. 8. By way of criticizing the evidence of P.W. 4, contention was that had it been a truth, it would have been stated in the fardbeyan itself by P.W. 7 that persons other than him and also P.W. 6 had also gone to see the lady and had faced the same predicament of not being allowed to see the lady and when they succeeded in doing so, the lady was complaining about the ill-treatment meted out to her. 9. P.W. 5 Manoj Yadav is the person who had accompanied P.Ws. 6 and 7 to village Koela after P.W. 7 had received information about the death of the deceased. He also stated in the very first line of his evidence that Savita was his cousin sister. In paragraph 3, he has stated that he simply heard a halla that the lady had been murdered and he did not talk to anyone in that respect. He further stated in the same paragraph that no demand for motorcycle was made in his presence. 5 10. P.W. 6 is the full brother of P.W. 7 and he has supported the prosecution case by stating that for not getting a motorcycle, his sister was being ill- treated and when he went to see her he was not allowed to meet the deceased and, lastly, when he succeeded in meeting her, the deceased was telling him as to how she was being abused and assaulted by the accused persons on account of not getting a motorcycle. P.W. 7, the informant, has stated that the appellant was demanding a motorcycle. But in the whole of his evidence, there is not a single word stated by him that the lady had ever complained to him or anyone about being ill treated or tortured on account of not bringing the motorcycle for the accused persons. 11. The contention was that the variance between the evidence of P.Ws 6 and 7 was quite material. It was contended that on the one hand P.W. 6 was stating that the lady was being ill treated and tortured and she was complaining about it to him and his brother (P.W. 7) when both of them visited the lady together on the same day. Contention was that if it would have been so, P.W. 7 must have spoken the same facts, which were spoken by P.W. 6 in his evidence. On the contrary, P.W. 7 does not speak anything about the lady conveying to him or P.W. 6 of being ill treated or tortured on account of the appellant not getting the motorcycle. 12. On consideration of the evidence of P.Ws 6 and 7 who appear to be only witnesses, to have visited the lady on the solitary occasion and that too together, I find that it could be very difficult for this Court to accept that indeed the lady had complained about her ill treatment and harassment at the hands of the appellant or any of his family members because the informant was not ready to fulfil the demand for a motorcycle. It is stated by both the witnesses that they had gone to see the deceased and if the same facts were heard by both the witnesses and if the one person was narrating the truth, how was it that the other was not even mentioning about it as a passing reference and as part of prosecution evidence. 13. In addition to the above, I find a major defect in the prosecution case. P.W. 1 was examined in chief and was discharged on 5.8.2006 on account of non appearance of the counsel for the defence to cross-examine him. Subsequently, a 6 petition was filed for recalling the witness for his further cross-examination and an order was passed on 30.3.2007 directing the recall of P.Ws. 1, 2 and 6. But, none of the witnesses appear produced by the prosecution for further cross-examination. It was contended by the learned counsel for the appellants by citing Gopal Sharan Vs. Satyanarayana AIR 1989 Supreme Court 1141 that if a witness was not subjected to cross examination even after an order of remand or recall for that purpose, then it could never be safe for the court to rely on the evidence of such witness. I find from the record of deposition of P.W. 1 in his examination-in-chief that the postmortem examination had been held by a team of doctors comprising Dr. Bijay Kumar Singh, Dr. Ashesh Kumar (P.W. 1) and Dr. N.K. Agrawal, out of whom P.W. 1 was produced. It could not be a defect in the prosecution case if P.W. 1 would have been produced for cross examination after an order of recall was passed on 30.3.2007 but it was not done. Even if either of the remaining two doctors would have come in the witness box and could have allowed the defence to have his opinion on the findings recorded in the postmortem examination in spite of P.W. 1 not appearing, the court feels that it would have been full compliance of the right of an accused to cross examine a witness so as to putting across certain questions and thereby placing on record certain facts which could be in conformity with the defence version or which could be creating a dent in the prosecution allegation as regards the manner of occurrence. But, that not having been done, what this court feels is that a case of prejudice appears made out as regards the right of the accused to cross-examine a witness. That finding appears more meaningful when I find that in spite of having found an external injury and in spite of having given some opinion regarding the cause of death that it was due to throttling, the team of doctors was proceeding to preserve the viscera of the deceased for chemical analysis. The defence could have utilized that part of the record made by P.W. 1 so as to bringing on record as to why the doctors were not holding a concrete opinion as to the cause of death and why they were proceeding to preserve parts of viscera for chemical analysis. Here was a case when the doctor’s opinion could not be said to be certain about the cause of 7 death, and as such, it would have been in the fitness of things that any of the doctors who had participated in holding of postmortem examination, ought to have been produced for cross-examination even if P.W. 1 was not produced. A definite prejudice appears caused to the defence and that is the main stumbling block, which I find, in sustaining the impugned judgment. 14. In the result, the appeal succeeds. The judgment and order of conviction and sentence is set aside. The appellant is acquitted. The appellant, who is in custody, shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, 16th September, 2011, NAFR/Anil/