Criminal Appeal (SJ) No.263 Of 2003 Against the judgment of conviction and order of sentence dated 25.4.2003 passed by 7th Additional Sessions Judge, Gaya in Sessions Trial No.442 of 1999/381 of 1995. 1. HIRAMAN YADAV, 2. SHREE YADAV, 3. MUKESH YADAV @ MUNGESHWAR YADAV---APPELLANTS Versus STATE OF BIHAR------Respondent ---- For the appellants:-Sri Sanjay Kumar,Advocate For the respondent:- Sri Satyanarayan Prasad, Advocate. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The appeal was preferred by three appellants, namely, Hiraman Yadav and his two sons Shree Yadav and Mukesh Yadav @ Mungeshwar Yadav. The appeal of Hiraman Yadav abated as may appear from order dated 08.11.2007 on account of his death. 2. The appellants had been put on trial by the learned 7th Additional Sessions Judge, Gaya in Sessions Trial No.442 of 1999/581 of 1995, after being charged together under Sections 304B, 498A and 401 IPC and Sections 3 and 4 of the Dowry Prohibition Act. They were held guilty of committing those offences and were, accordingly, directly to suffer rigorous imprisonment for ten years for committing the offence under Section 304B IPC and five years under Section 201/34 IPC. No 2 sentence was passed under Section 498 of the IPC. As regards the charges under the Dowry Prohibition Act the appellants were acquitted, by the impugned judgment of conviction and sentences passed on the 25th of April, 2003. 3. Undisputedly, appellant Mukesh Yadav @ Mungeshwar Yadav was married to Malo Devi @ Bhotu Devi who was the niece of P.W.11 Keshwar Yadav, being the daughter of his younger brother. It has come in evidence that the father of the deceased had died about two years prior to her marriage and the responsibility of getting the lady Mali Devi @ Bhotu Devi married fell on P.W.11 Keshwar Yaav. Accordingly, the marriage had been solemnized. It was stated that the deceased was living in her Sasural and the husband appellant Mukesh Yadav @ Mungeshwar Yadav was persistently demanding a television and electric fan and other articles which were not given due to the poverty of the prosecution party. The son of the informant, namely, Roop Narain Yadav (P.W.4) and Lal Dhari Yadav(P.W.10) went to see the deceased. 4. It is stated that on 9.5.1994 at about 8 A.M. P.W.1 came to the house of the informant to inform him and others that his niece had been murdered and that the dead body had been buried. 3 But, later on the same was dug out to be cremated. It was stated that the deceased was initially taken to a doctor at Bodhgaya. 5. The informant stated that he along with P.Ws.4 and 10 came to village Pararia Rohi Bigha, i.e., the village of the appellants and found that the house of the accused was abandoned as they had escaped from there. He, thereafter, gave a written report to P.W.6 Kaisher Kamal who registered the case and took up the investigation. 6. P.W.6 has stated that he came to the village of occurrence and found the house of the appellants locked and no one present there. He was informed by the villagers that the dead body had initially been buried but, subsequently, it was dug out and cremated by being burnt down. He, thereafter, recorded the statements of the witnesses and finding the case true, sent the accused persons up for trial. In cross-examination the witness has stated in paragraph-10 that he has not mentioned anywhere in the case diary as to from whom he came to learn that the dead body of the deceased, initially, was buried in earth and was subsequently, dug out to be cremated by being burnt down. He did not even inspect the two places of burial and burning as were pointed out to him. 4 7. The prosecution case was supported by P.W.3, the uncle of the deceased, P.W.4 her cousin and P.W.11 yet another uncle of the deceased and informant of the case. They have all stated that at the time of Rukhashati some tip off between the parties on demand and none giving of certain articles had taken place, but on perusal of the evidence of the three witnesses what appears is that there is no mention as to what articles were demanded by the accused persons. It has further been stated by them that the Rukhashati was performed very cordially and there was no complain subsequent thereto as well. However, the learned trial court has gone onto rely upon the document, Ext-2, a letter, which was produced during his evidence by P.W.11 the informant of the case by claiming that it was in the hand of appellant Mukesh Yasdav @ Mungeshwar Yadav, which particular letter had been received by him. That letter is available on the record. P.W.11 was cross-examined on that aspect as may appear from evidence of P.W.11 in paragraph-14 of his evidence. The witness has stated that he had received the letter Ext-2 two years after the marriage and had kept it secured, but he has also admitted that there was no date mentioned over the letter and the letter was 5 being produced by him for the first time in court. P.W.11 was further admitting that he did not have any other writing of Mukesh Yadav @ Mungeshwar Yadav. However, he stated that the letter was written in his presence. It was suggested to P.W.11 that Ext-2 was not in the hand of Mukesh Yadav @ Mungeshwar Yadav and that it had been forged and fabricated by P.W.11 during the pendency of the case for lending support to the charges. 8. The learned trial Judge has dwelt upon in quite details on the above letter as may appear from paragraph-10 at page-8 of the impugned judgment. On perusal of the findings which have been recorded on the veracity of Ext-2 what this court finds is that the reasons for placing reliance upon the contents of the letter are simply coming from imagination of the learned Presiding Judge than from facts as could be admissible under law. The learned trial Judge was referring to certain situations prevailing in the life of persons or natural obtained in the society and, thereafter, had gone over to point out that the possibility could very much be there that the appellant had been at village Amba. This finding was recorded because the defence was seriously challenging the veracity of the letter on this 6 score also that the appellants as per the evidence of P.W.11 was sending the letter from his village whereas the place from where it was sent which appeared on the letter was village Amba, thats, the village of the informant. If he was very much present at village-Amba, the native place of the informant, then there could have been no necessity for appellant Mukesh Yadav @ Mungeshwar Yadav to scribe a letter for being handed over to the informant P.W.11. The investigating officer of the case, i.e., P.W.6 has stated in paragraph-18 that a photo copy of the document had also been handed over to him and he had received a direction from his superior officer to investigate the veracity of the document, but he did not investigate that aspect of the document. The reasons for placing reliance upon Ext-2 so as to treating it conveying a demand for dowry articles, which have been assigned by the learned trial court, could not simply find favour with this court. The reasons are simply outrageous if I am permitted to say so, because, the learned trial Judge was pointing out many things in paragraph-10 of his judgment which were not available to him to be pointed out through evidence. He could not import his personal knowledge of a particular fact which might be 7 prevailing in society unless the evidence on custom was led by the prosecution and it was specifically placed through proper evidence that this could have been a case in the present case also. Above all, if it was a circumstance which was being used as incriminating against the appellants then it was incumbent for the learned trial Judge to put a question in that connection to the appellants when they were being examined under Section 313 Cr.P.C. That having not been done, the very use of the particular letter as a circumstance for seeking sustenance to the charges, in the opinion of this court, was not permissible under law. 9. The next circumstance which was utilized by the learned trial Judge as the proof of the charges was the fact that when the informant or the police officer (P.W.6) reached at the house of the appellants, they were found absconding from there and the house was found locked. This is the finding recorded in paragraph-9 at page-8 of the judgment. The same fallacious approach of the trial court appears here as well which was adopted by it in case of Ext-2, the letter. It was definitely a circumstance which could have required being explained by the accused and, specially, if it was a circumstance to be used against the appellants, 8 then the law required that it must have put across the accused persons for eliciting any explanation from them. 10. While I was going through the evidence of the witnesses, namely, P.Ws.3, 4 and 11 I found them stating in their evidence that, they had gone to the cremation ground also. The evidence of P.W.11 the informant in paragraph-12 indicates as if there may be a possibility that the family members of deceased were also present when the dead body was being cremated. The attention of P.W.11 was drawn to his earlier statement before the police and that also indicates a probability that the appellants were remained present at the cremation ground where the dead body was being cremated. In fact the witnesses above named, have stated in their evidence that they had found the dead body partially being burnt and some part of it was yet to be burnt. The above could be the reason that P.W.1 was sent by the appellants to P.W.11 so as to informing him that the deceased had died of diarrhoea. P.W.1 has stated that he was simply passing on that information to P.W.11 and others. It is true that the witnesses, like, P.Ws.3, 4 and 11 have attempted to make out a case of killing the deceased, but that story also varies. As regards 9 the evidence of three witnesses, they have given three different reasons for murdering the deceased. As such, it is very difficult and unsafe to place reliance upon the evidence of P.Ws.3, 4 and 11. 11. While I was perusing the evidence of witnesses, I found that the probability was always appearing from it that after the death of the deceased a message was properly sent to her uncle and others and they participated in the cremation. But as has been stated by P.W.11, he straightway went to the police station from the cremation ground and lodged a report. The reasons could best be known to him. The evidence of witnesses does not indicate that there had ever been a demand for dowry up to the stage of Rukhashati. If there was demand of dowry up to the stage of Rukhashati and if the evidence Ext-2, the letter, could not be acceptable as evidence then it appears a case which was not properly established by adducing acceptable evidence. The prosecution had failed in proving the charges satisfactorily. In the opinion of this court, it was a case in which the appellants should have been acquitted after being given benefit of doubt. Accordingly, the appeal is allowed. The appellants are acquitted after being given benefit of doubt on account of the charges not being 10 proved. The order of conviction and the sentences passed upon the two appellants are hereby set aside. The appellant Shree Yadav is discharged from the liabilities of his bail bond. It was informed by Sri Sanjay Kumar, learned counsel appearing for the appellants that appellant Mukesh Yadav @ Mungeshwar Yadav is still in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 13th day of April, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)