IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.232 of 2007 Against the judgment of conviction and order of sentence dated 29.12.2006 passed by 1st Additional Sessions Judge, Bhojpur at Ara in Session Trial No. 102 of 2006/57 of 2006. Sujit Kumar @ Sujit Kumar Pandey……..Appellant. Versus The State of Bihar … ….Respondent. WITH Criminal Appeal (SJ) No. 203 of 2007 Yogesh Pandey @ Yogesh Chandra Pandey…..Appellant. Versus The State of Bihar …..Respondent. ------------------ For the Appellants : Mr. Kanhaiya Pd. Singh, Sr. Adv. Mr. Arun Kr. Pandey-I, Adv. For the State: Mr. Ajay Mishra, A.P.P. ------------------ P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA. Dharnidhar Jha, J. The two appellants, the husband and father-in-law of the deceased, have preferred these two appeals challenging the propriety and correctness of judgment recorded by the learned Additional Sessions Judge-I, Ara, in Sessions Trial No. 102 of 2006/57 of 2006 on 29.12.2006 holding the two appellants guilty of having committed offence under Section 304 B/34 of the Indian Penal Code. The appellants, by the order of sentence passed by learned Judge, on 29.12.2006 were directed to suffer rigorous imprisonment for ten years. 2. The written report of P.W. 5, Sanjeev Kumar Garg is the basis of F.I.R. of the case. It is admitted that appellant Sujit Kumar @ 2 Sujit Kumar Pandey was married to Nilam Kumari, the deceased, on 21.5.2004 according to the Hindu rites and rituals. After solemnization of the marriage, the deceased went to her matrimonial house and came back to her parents’ house after 8 days. After Donga ceremony having been performed, the deceased came back to the house of the appellant when the appellants and other in-laws started making demands of motorcycle and colour T.V. As may appear from the written report of the informant, the mother of the appellant and her younger sister were taunting the deceased for not bringing the two demanded articles and were ill treating and torturing her also. It is further alleged that the deceased used to pass the story of her ill-treatment and torture on to other members of her family. 3. The informant further wrote in his report that whenever he went to meet his sister, the accused persons did not allow him to meet her and always asked him to send a motorcycle and a colour T.V. as was demanded and then only he could meet his sister. After much persuasion, he was allowed to meet her, when he had gone to see the deceased, after death of her father. She told the informant that she was being ill-treated and tortured on account of non-fulfillment of demand of motorcycle and colour T.V. 4. The informant further stated that on 10.11.2005, while he was coming back to his village after working in the Civil Court, Ara and reached at a particular place, on way to his house, he had received a call on his cellular phone bearing No. 9334337781 intimating him that his sister had been killed by the mother of appellant Sujit Kumar @ Sujit Kumar Pandey, his sister and others, including 3 the two appellants and after having committed the death of the deceased, the dead body was set at fire so as to creating an evidence as if death had occurred on account of burning. The informant stated that this information was given by unknown person and on receipt of the information, he went to the house of the appellant and found the dead body of his sister lying in the kitchen of the house. He was also accompanied by a few villagers. Thereafter, he went to Muffasil Police Station to lodge the report about the incident. 5. On the basis of his written report, a case was instituted and as may appear from the evidence of P.W.7, S.I. Ram Niwas, he took up the investigation and after completing the same, sent up the two appellants for trial which ended in their conviction. 6. The defence of the appellants was that while the lady was cooking in the kitchen, she caught fire incidentally and was burnt to death. 7. In order to bringing home the charges, the prosecution examined 8 witnesses. P.W.1 Yogendra Prasad Dubey was the uncle of the deceased. P.W.2 Rajshri Devi was her mother. P.W.3 Devesh Kumar Dubey, was the cousin of the deceased. P.W.4 Akshay Kumar Dubey was one of the agnatic relative of the deceased and younger brother of the informant. P.W. 5 Sanjiv Kumar Garg, was the full brother of the deceased. P.W. 6 was Dr Madan Kumar Pandey who held post mortem examination on the dead body of deceased Nilam Kumari @ Nilam Pandey on 12. 4. 2005 and had prepared the post mortem examination report (Ext.2). As stated by P.W.7 S.I. Ram Niwas, he had investigated the case, but could not submit charge sheet which was 4 submitted by P.W. 8 S.I. Sunil Kumar without doing any further investigation in the case. 8. Shri Kanhaiya Prasad Singh, learned senior counsel, appearing on behalf of the two appellants in these two appeals, took me through the evidence of the witnesses and submitted that the evidence of P.W. 1 Yogendra Prasad Dubey who was the uncle of the deceased and who, in fact, had arranged and conducted in respect of the solemnization of the marriage of the deceased with Sujit Kumar @ Sujit Kumar Pandey may indicate that there was no demand of dowry in between the parties, either during the negotiation or after solemnization of the marriage and anything had passed off very smoothly and to the satisfaction of both the parties. As such, the story of demanding motorcycle or colour T.V. appears a completely absurd and unacceptable. It was contended further that there was evidence of the witnesses indicating that the village Dharmpura had not been electrified, as such, the allegation regarding demand of colour T.V. appears baseless. The prosecution witnesses appear to have made contradictory statements which makes its story improbable and doubtful, mainly, for the reason that after filing of the written report, the police had already taken up investigation on the reported case of instantaneous death of the deceased on account of having caught fire, a protest petition was filed by the informant too at a belated stage, alleging that the deceased was killed by strangulation. The further contention is that the manner of occurrence of killing the deceased by strangulation is completely negated by the evidence of P.W.6, Dr Madan Kumar Pandey who did not find any sign or evidence during 5 post-mortem examination that the deceased was killed by strangulation. It was contended, as such, that the manner of occurrence not having been established and the evidence of ill- treatment and torture having not been proved, the very basis of demand of articles appears an absurdity. Thus, the learned trial judge had completely fallen into error in recording conviction of the appellants. 9. Shri Ajay Kumar Mishra, learned Additional Public Prosecutor appearing on behalf of the State, on the other hand, submitted that the evidence of the witnesses would indicate that there had been demand for a motorcycle and a colour T.V. by the appellants and others repeatedly and the informant was also told about the fate of the deceased on account of non-fulfillment of the demand, i.e., torture was being meted out to the deceased continuously, which, lastly, resulted in her killing and her dead body was burnt by the appellants and others in order to create the defence evidence that the death was caused due to burning. It was, thus, contended that judgment of conviction and sentence passed against the appellants by the trial court was quite justified. 10. Some evidence in about the story of the prosecution regarding demand for a motorcycle and a colour T.V. was led but better evidence came from P.W. 2 Most. Rajshri Devi, mother of the deceased, who appears the most important witness. She has stated that the marriage of Nilam Kumar @ Nilam Pandey had been solemnized after her father had died. This fact has been stated in the written report as well. The evidence of P.W.2 in para-6 could be 6 relevant to consider as to what had indeed happened during negotiation of the marriage as also after solemnization of it. P.W. 2 has said that the marriage negotiation had been carried out without any use of good offices of any other person and the acceptance of the proposal from the bridal side was out of free will of the accused. P.W.1, who is the uncle of the deceased, has stated in para-12 that there was no demand of dowry nor there was any dispute either during the negotiation or solemnization of the marriage. The written report of the informant, which is the basis of the case, may itself substantiate the evidence, but that could not be based to judge as to what could have led to the commission of the offence and further the quality of the evidence is also not such so as to judge the same. The written report does not indicate whether there was demand of any dowry either in the form of articles or cash during negotiations of the marriage or after it was solemnized. There was no story that any demand of dowry was made till Donga ceremony was performed in the year 2004. Having considered the evidence of the two important persons, like P.W.1, who was the uncle of the deceased, and P.W.2, mother of the deceased, what I could appreciate was that if there was no demand for dowry during the negotiations of the marriage and that the groom-side was happy to go through the proposal and solemnized the marriage, then in that background the subsequent story regarding the demand of a motorcycle or a colour T.V. does not appear acceptable. Moreover, if at all a demand was being made, as is alleged, and if indeed the lady was being tortured and treated with cruelty on this account, as is the claim of the informant and other witnesses, then the deceased, who was a 7 literate person, as is admitted by P.W.1 in para-26 and P.W.2 in para-6, ought to have intimated about such demand to her family members. P.W.2, her mother, states that she had not written any letter intimating to her regarding demand of dowry and also regarding ill-treatment by the accused persons. 11. There are some mysterious concealment of facts as appears, in the evidence of P.W.1 in para-24 which makes the prosecution case improbable as to why P.W.1 concealed that particular fact. P.W.1 has stated in para-24 that the deceased was literate and he had seen her writing and reading, but when he was shown a letter written by the deceased to appellant Sanjiv Kumar @ Sanjiv Kumar Pandey, he simply went on to say that he was not acquainted with her writing. This is something very curious. P.W.2, her mother also stated that the deceased was literate having attended classes up to 7 or 8, but, in spite of that she was not communicating with P.W.2 and, as such, she never wrote any letter alleging or informing her or anyone about demand of dowry or other aspects of the case. What P.W. 2 stated was that the deceased was making a statement about her ill-treatment and torture by the appellants before the two of her Gotnies, namely, Shubhangi Devi and Dewanti Devi. Incidentally except P.W.2, none of the two ladies, namely Devenit Devi or Shubhangi Devi was produced by the prosecution to state about the fact that they were also present at the time when the deceased was narrating the demand of the two articles and her ill-treatment due to it to her mother and they had also heard those facts, being stated. 12. So far as the evidence of other witnesses is concerned, 8 P.W.4, Akshay Kumar, who happens to be the brother of the deceased, admitted in para-8 of his evidence that he had never made any statement before any authority. As such, his evidence was inadmissible. As regards the other witnesses who were examined besides P.Ws.1 and 2, P.W.3 Devesh Kumar Dubey said to be informant’s cousin and P.W.5 Sanjeev Kumar Garg, the informant, have supported his written report and has stated the facts in support of the allegation. But witnesses like P.W.3 Devesh Kumar Dubey and P.W.5 Sanjeev Kumar Garg have both admitted that when they reached the house of the deceased, they found the dead body lying in the kitchen of the house. Thereafter, some villagers who had seen them arriving and who were attracted to the P.O. also came to the place. P.W. 5 has submitted that he talked to them and then consulted his own co-villagers and when he was going to village Dharampura, he met S.I. Ram Niwas, P.W.7 who was coming back from Dharampura in the way and there in a road side shop he wrote the written report in the light of a lantern and submitted it to P.W.7. This witness P.W.5 appears not reliable and it appears that he was not making correct statement or even if I assume that he was making correct statement, the police appears already having entered into the investigation much before the informant could inform P.W.7 about the occurrence. On consideration of the evidence of P.W.7 in paras 1, 2, 3 and 11, it appears that he had already received an information through the Choukidar that a lady in village Dharampura had been burnt. He has stated that he had sent Choukidar and Jamadar (A.S.I.) to the place of occurrence in village Dharampura Barka for keeping watch over the 9 P.O. On receiving the information about the death of the lady due to being burnt, he registered Station Diary Entry No.193 dated 11.4.2005 and himself started to the place of occurrence for verifying the truthfulness of the information. He came to the house of the appellant and entered into the kitchen and found the dead body completely burnt and he prepared inquest report, as it appears in para-4 of the evidence of the P.W.7. He found the dead body burnt up to the nails which were carrying faint nail polish over them. He held inquest on the dead body and prepared inquest report. P.W.7 has stated that when he was returning to the P.S. after having completed several steps in investigation, undertaken on the information given to him about the death of the deceased. He met the brother of the deceased on way back to police station who handed over to him a written report at 23 hours and on that basis he recorded Muffassil P.S. Case No. 68 of 2005. Thus, what appears from the evidence of P.W.7, is that the brother of the deceased P.W.5, had handed over to him his written report, when the police had already entered into the investigation of the case and as such till the stage of preparation of the inquest report, there was no complain made to the effect that the deceased lady had been ill-treated, tortured and killed and that the post mortem burn injury was created by them for creating an evidence in self defence, nor there was any story coming to the police station that she was being tortured and ill-treated on account of non-fulfillment of dowry. 13. Not only that, the informant P.W.5 has stated that he came to the police station but even the police was not inclined to allow him to, firstly, file a report and consequently to act upon any information 10 on that report. This is the reason as to why P.W.5 has stated that he kept waiting on the gate of the police station for the whole night and he could file his report only at the dead of the night. What I gather from the above statement of the P.W.5 is that since it was a serious case of dowry death, in which a lady was allegedly brutally killed and the police also knew that a lady had died, there was no reason for the police officer to be slow, as to the extent of not accepting the written report from P.W.5. It appears that in spite of the above statement of P.W.5, police was knowing fully well as to how the lady had died. As such, the police was very slow to accept the written report of P.W.5 and was not ready or inclined to accept the same. Thus, claim of the P.W.5. that he filed the written report on way to Dharampura by writing it down in a road-side shop appears not correct. The police also says that it had received the written report through someone on way. The evidence of P.W. 5 indicates that after having waited for the whole night, he could be successful in filing the report which further creates a doubt regarding the very filing of the case and it appears that the informant was also in a fix in his mind as to what story he should propound to be believed so as to implicate the appellants in a criminal case. 14. The allegation is that the deceased lady as alleged by the witnesses was ill-treated, assaulted and killed. Thereafter, the dead body was put to fire to create post mortem injury. The evidence of P.W. 6 Dr. Madan Kumar Pandey is relevant to the above fact. He held the post-mortem examination on the dead body of Nilam Kumari on 12.4.2005 at 10.40 A.M. He has very clearly stated that he did not find 11 any external or internal injury indicating any assault or use of force so as to kill the deceased. He has simply stated that he found the whole body burnt and burn injuries were present on the whole of her face, neck, chest both upper limbs back of the chest, abdomen, thigh, leg, excluding the feet. Mouth was also partially open, eyes injected with chemosis (sic) and cornea was hazy. In the opinion of P.W.6, the cause of death was severe burn injuries leading to shock. P.W.6 has stated that burn injuries were ante-mortem in nature. Thus, the prosecution evidence that after the deceased had been killed, her dead body was put to fire for creating post mortem burn injury so as to create defence in their favour is not established. 15. The prosecution generally refers the medical evidence to court to support that the manner of occurrence, as alleged by it was corroborated by the medical opinion and, as such, the occurrence appears true. Likewise the defense could also refer to the medical evidence to point out that the manner of occurrence which was alleged by the prosecution was not corroborated by the opinion of the doctor and, as such, the implication may be false or the very story could not be relevant in the present case the doctor did not find any mark of assault which negated the allegation that the lady was gagged to death. The burn injuries were not post-mortem, rather they were ante-mortem leading to the inference that the lady had died due to burn injury which was also the opinion of P.W.6. Thus, the very basic allegation of the prosecution against the appellants of assaulting the lady and thereby causing her death appears not corroborated by P.W.6. The further allegation of the prosecution that post-mortem burn 12 Patna High Court, the 18thAugust, 2011, N.A. F. R./Ravi injuries were created by the defence to create evidence in their defence does not get support from the evidence of P.W.6. The whole manner of occurrence appears controverted by the evidence of P.W.6. 16. On the above reasons, I find that the learned trial judge could not appreciate the evidence correctly. Had it been so, the learned trial judge could not have convicted the appellants. It is the case in which the appellants deserved to be acquitted. Accordingly both the appeals are allowed so as to set aside the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge-I, Ara, in Sessions Trial No. 102 of 2006/57 of 2006. The appellant Yogesh Pandey @ Yogesh Chandra Pandey who is on bail, is discharged from the liability of his bail bond. Appellant, Sujit Kumar @ Sujit Kumar Pandey is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.)