IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1199 of 2011
Arising Out of PS.Case No. -69 Year- 2008 Thana -Rajgir District- NALANDA (BIHARSHARIFF)
Akash Kumar @ Chunnu, Son of Sri Chandra Chaudhary, Vill Birchait P.S. Rajgir,
District- Nalanda
…. …. Appellant/s
Versus
The State Of Bihar
…. …. Respondent/s
Appearance:
For the Appellant/s : Mr. A. K. Thakur, Advocate.
Mr. Md. I. Ahmad, Advocate.
For the Respondent/s : Mr. A. K. Sinha, A.P.P.
CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
AND
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)
Date: 28-07-2017
Heard learned counsel for the appellant as well as
learned APP for the State.
2. This appeal has been preferred against the judgment
and order of conviction dated 05.11.2011 and order of sentence dated
09.11.2011 passed by the learned Additional Sessions Judge-V,
Nalanda at Biharshariff in Sessions Trial No. 357 of 2009 arising out
of Rajgir P.S. Case No. 69 of 2008 instituted under Sections 304B and
328/34 of the Indian Penal Code and Sections 3 and 4 of the Dowry
Prohibition Act, whereby convicting the appellant for the offence
punishable under Sections 304(B) and 498A of the Indian Penal Code
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and sentencing him to undergo rigorous life imprisonment for the
offence under Section 304B of the Indian Penal Code and also
slapping him with fine of Rs.1,000/- and in default of payment of fine
to further undergo R.I. for one month and also sentencing him to
undergo R.I. for one year for the offence under Section 498A of the
Indian Penal Code. Both the sentences were directed to run
concurrently.
3. The factual matrix of the case is that Rajgir P.S.
Case No. 69 of 2008 was instituted under Sections 304(B) and
328/34 of the Indian Penal Code and Sections 3 and 4 of the Dowry
Prohibition Act against the appellant, namely, Akash Kumar @
Chunnu, Suraj Kumar Chaudhary, Sri Chand Chaudhary, wife of Sri
Chand Chaudhary and Dhannu Chaudhary on the basis of the
fardbeyan of the informant Mahendra Chaudhary, son of Late Sri
Banshi Chaudhary, resident of village-Dargah Road, Sanichra More,
P.S.-Sultanganj, Patna City, District-Patna recorded by S.I. Arun
Kumar Singh, S.H.O. Rajgir Police Station on 11.05.2008 at 09:30
A.M. at Village Birchait, with the allegation in succinct that, he had
performed marriage of his daughter, namely, Renu Kumari with
Akash Kumar @ Chunnu on 15.02.2008 as per Hindu rites and
rituals and spent Rs. 1,50,000/- in the marriage. On the fateful night
at 12 P.M., he received telephonic information that his daughter has
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been afflicted with diarrhoea and her condition is precarious. On the
said information, he along with his son, Deena Kumar Chaudhary,
Nephew Bijay Kumar Chaudhary and two-four other persons arrived
at Village Birchait on the following morning and found his daughter
dead and her entire body blackened. On grilling the locals, he learnt
that her husband Akash Kumar @ Chunnu, her brother-in-law Suraj
Kumar Chaudhary, maternal grand-father of her husband Dhannu
Chaudhary, her father-in-law Sri Chand Chaudhary and her mother-
in-law eliminated her daughter by administering her poison for
dowry demand and gave wrong information to him on telephone.
They absconded from their house on their arrival. Further allegation
is that they used to subject her to torture for demand of Rs. 50,000/-
from his daughter and due to not coughing up the demand, they have
poisoned his daughter to death.
4. The aforesaid case was investigated by the Police.
During the course of investigation, the I.O. recorded further
statement of the informant, statement of the witnesses, inspected the
place of occurrence and prepared inquest report and sent the dead
body for post mortem, obtained post mortem report and sent the
viscera of the deceased to F.S.L. for its chemical examination. On
conclusion of the investigation, I.O. submitted chargesheet under
Section 306 of the Indian Penal Code against the appellant, namely,
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Akash Kumar @ Chunnu.
5. On receiving the chargesheet and the case diary and
on perusing the same, the learned Magistrate took cognizance of the
offence under Section 304(B)/34 of the Indian Penal Code against the
appellant and committed the case to the Court of Sessions for its trial.
Charge against the appellant was framed under Section 304(B)/34 of
the Indian Penal Code. The charge was explained to the appellant to
which he pleaded not guilty and claimed to be tried.
6. During the course of trial, in ocular evidence, the
prosecution has been able to examine altogether nine prosecution
witnesses namely, Bijay Kumar Chaudhary (PW-1), Deena Kumar
Chaudhary (PW-2), Ajay Kumar Chaudhary (PW-3), Ramchandra
Chaudhary (PW-4), Kanti Devi (PW-5), Mahendra Chaudhary (PW-
6), Umesh Prasad Singh (PW-7), Girdhar Pathak (PW-8) and Dr.
Pandey Binay Krishna Sahai (PW-9). Out of the aforesaid witnesses,
PW-6 happens to be the informant-father of the deceased, PW-1 is
the nephew of the informant, PW-2 is the son of the informant, PW-3
is the nephew of the informant, PW-4 is the brother of the informant,
PW-5 is the wife of the informant, PW-7 is the 2nd I.O., PW-8
happens to be the 1st I.O. and PW-9 is the doctor conducting autopsy
of the dead body of the deceased. In documentary evidence, the
prosecution also filed certain documents including the F.S.L. report
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of viscera marked as exhibit-6.
7. The statement of the appellant was recorded under
Section 313 of the Code of Criminal procedure. The case of the
defence is complete denial of the occurrence claiming to have been
falsely implicated in this case. In support of his case, in ocular
evidence, the defence has examined two defence witnesses, namely,
Manoj Kumar (DW-1) and Awadhesh Rajbanshi (DW-2).
8. After hearing the parties and perusing the record, the
learned lower court convicted the appellant for the offence punishable
under Sections 304(B) and 498A of the Indian Penal Code and
sentenced him as mentioned in earlier Para.
9. Being aggrieved and dissatisfied with the impugned
judgment and order of conviction and sentence passed by the learned
lower court, the appellant Akash Kumar @ Chunnu has filed the
present Criminal Appeal.
10. The point for consideration in this case is, as to
whether the prosecution has been able to bring home the charge
levelled against the appellant beyond all reasonable doubts or not.
11. It is submitted by learned counsel for the appellant
that out of nine witnesses examined by the prosecution, PW-1 and
PW-3 are the cousin brother of the deceased, PW-2 is the own
brother of the deceased, PW-4 is the uncle of the deceased, PW-5 is
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the mother of the deceased and PW-6 is the informant-father of the
deceased. As such, they happen to be the highly interested witnesses
of the case. Barring the aforesaid witnesses, none of the independent
witnesses has been examined by the prosecution. In the fardbeyan of
the informant, it is not alleged that the deceased was subjected to
cruelty by her husband and her in-laws in connection with the dowry
demand soon before her death, and moreover, there is no cogent,
consistent and reliable evidence on record in this regard. Hence, the
important ingredient of Section 304(B) of the Indian Penal Code is
lacking and for want of the same, no offence is made out under
Section 304(B) of the Indian penal Code. It is further submitted that
as per the account of the informant, there was no demand of dowry
preceding to the occurrence, as he has stated in his cross-examination
that at the time of Bidai of his daughter with his son-in-law one
month preceding to the occurrence, the relation between his daughter
and son-in-law was cordial and there was no demand and difference
between them. It is further submitted that though as per the account
of the witnesses, deceased informed the prosecution party regarding
the demand of dowry of Rs. 50,000/- and harassing her for the said
demand on telephone 4-5 days preceding to the occurrence, but the
informant himself has stated, in his evidence, that he had not
accorded mobile phone to the deceased. Wife of the informant (PW-
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5) has stated that phone is not installed at the house of the in-laws of
the deceased. Thus, for want of mobile phone or the basic telephone,
the aforesaid case of the prosecution of giving information to it
regarding demand of dowry and subjecting the deceased to torture or
harassment over the said demand 4-5 days preceding to her death is
not tenable. It is further submitted that there is vital contradiction
between the statements of the witnesses recorded before the Court
and that recorded by the I.O. under Section 161 of the Code of
Criminal Procedure and in view of the said contradiction, the
testimony of the witnesses are not worth credence and reliable.
12. On the other hand, learned APP advocating the
correctness and validity of the impugned judgment and order of
conviction and sentence has submitted that the learned lower court
has passed the impugned judgment and order of conviction and
sentence correctly appreciating the evidence, facts and law involved
in the case which is liable to be sustained and this appeal has no
substance in it and is liable to be dismissed.
13. From perusal of the record, it appears that the
marriage of the deceased, namely, Renu Kumari was solemnized on
15.02.2008 and he had died in her marital house in the night of
10/11.05.2008 i.e. within three months of her marriage in otherwise
than under normal circumstances. As per the provision of Section
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304(B) of the Indian Penal Code, besides the aforesaid ingredients,
prosecution is also required to substantiate that there was dowry
demand and the deceased was subjected to cruelty or harassment in
connection with the dowry demand by her husband and his relative
soon before her death. Regarding the demand of dowry and
subjecting the deceased to cruelty or harassment, the informant in his
fardbeyan has stated that the accused persons always used to subject
his daughter to torture and ask her to procure Rs. 50,000/- from her
parents, but in his fardbeyan, he has not stated that four days
preceding to death, his daughter informed him on telephone
regarding demand of dowry and subjecting her to harassment by
extending threatening of dire consequences. But in addition to the
aforesaid statement as given in the fardbeyan, the informant in his
examination-in-chief for the first time stated that his daughter had
informed four days preceding to the occurrence by telephone that her
in-laws were demanding Rs. 50,000/- in dowry else she would be
eliminated. In his cross-examination, he has also stated that his
daughter had divulged that her in-laws were tormenting her for
dowry demand of Rs. 50,000/- four days preceding to her death by
telephone. But the I.O.(PW-8) in his cross-examination has denied
giving of such statement by the informant to him. Thus the aforesaid
contradiction between the statement of the informant given in the
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fardbeyan and before the court and also before the I.O. under Section
161 of the Code of Criminal Procedure creates serious doubt about
the sanctity and veracity of the said statement of the informant and
makes it unreliable and not worth credence.
14. Though the informant in his fardbeyan has stated
that the accused persons used to subject the deceased to torture over
dowry demand of Rs. 50,000/- but in his examination-in-chief he has
simply stated that his daughter has been eliminated in the marital
house over dowry demand of R. 50,000/-. Thus, he has not supported
the case of subjecting his daughter to torture by accused persons over
said dowry demand. Moreover, the informant in his cross-
examination has stated that his son-in-law had taken his daughter to
her marital house on Bidai one month preceding to the occurrence
and there was cordial relation between his daughter and his son-in-
law and there was no difference between them and there was no
demand of dowry between the time of arrival of his son-in-law at his
house and departure there from, which means that there was no
demand of dowry and subjecting the deceased to torture or
harassment till one month preceding to the occurrence.
15. The allegation regarding demand of dowry and
subjecting the victim to torture is only based upon the information
allegedly given to him by his daughter by telephone four days
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preceding to her death. But the informant in his cross-examination
has stated that he had not accorded mobile phone to his daughter
Renu Kumari at the time of her marriage. Though in the cross-
examination, he has stated that Renu Kumari divulged to him about
demand of dowry of Rs. 50,000/- from her by phone installed at her
marital house, but PW-5 Kanti Devi who happens to be the mother of
the deceased and wife of the informant has candidly stated in Para-2
of her cross-examination that phone was not installed at the house of
her son-in-law. The aforesaid contradictory statement of the
informant and his wife indicate that the deceased had neither mobile
nor basis phone facility. Due to non-availability of mobile phone or
landline phone giving information to the informant on the telephone
by the deceased regarding demand of Rs. 50,000/- under threat of
elimination to the deceased by her in-laws, appears to be not
convincing and reliable. It is not the case of the prosecution that the
deceased had not given such information to the informant or her
relative personally or through some messenger.
16. Though PW-1, namely, Bijay Kumar Chaudhary
who happens to be cousin brother of the deceased, PW-2, namely,
Deena Kumar Chaudhary who happens to be the own brother of the
deceased and PW-3, namely, Ajay Kumar Chaudhary who also
happens to be the cousin brother of the deceased, PW-4, namely,
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Ram Chandra Chaudhary who happens to be the uncle of the
deceased and PW-5 Kanti Devi, who happens to be the mother of the
deceased have stated in their respective examination-in-chief that the
deceased had informed them two to six days preceding to the death
about demand of Rs. 50,000/- and subjecting her to harassment by
her in-laws by phone, but for the want of the phone facility with the
deceased, the aforesaid statement of the said witnesses appears to
have no leg to stand upon. As per the statement of the informant, the
relation between his daughter and son-in-law was cordial and there
was no difference between them and there was no demand of dowry
till one month preceding to the occurrence. But in quite contradiction
to the aforesaid statement of the informant, PW-1 in Para-1 of his
examination-in-chief has stated that 1-2 months later on again
arriving at her marital house, deceased informed him on telephone
that her in-laws were demanding Rs. 50,000/- and subjecting her to
torture. Likewise, PW-2 Deena Kumar Chaudhary has also stated in
his examination-in-chief that after arrival of the deceased at her
marital house after the marriage, her in-laws used to demand Rs.
50,000/-and subject her to torture and PW-4 Ram Chandra
Chaudhary has stated in his examination-in-chief that after marriage
of his niece, she went to her marital house but couple of days later to
her arrival there, she started making complain by phone about
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demand of Rs. 50,000/- in dowry under threat of dire consequences
by her in-laws. But the aforesaid statements of the said witnesses also
stand in quite contradiction to the statement of the informant in this
regard. Hence in view of the material contradictions, the statements
of the witnesses do not appear to be reliable, trustworthy and worth
credence. Thus, from the perusal of the prosecution case and the
statements of the prosecution witnesses, it appears that the
prosecution has utterly and miserably failed to substantiate the
important ingredients of the case that there was demand of dowry
and the deceased was subjected to cruelty or harassment by her
husband and his relative in connection with dowry demand soon
before her death by adducing consistent, cogent, trustworthy and
reliable evidence and for want of corroboration of the aforesaid
ingredients, conviction under Section 304(B) of the Indian Penal
Code cannot be made.
17. Impugned judgment indicates that the appellant has
also been convicted for the offence punishable under Section 498A
of the Indian Penal Code, but from perusal of the record, it appears
that no charge under Section 498A of the Indian Penal Code has been
framed against the appellant by the learned trial court rather only
charge under Section 304(B) of the Indian Penal Code has been
framed against him. Hence, for want of charge framed against the
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appellant, he cannot be convicted for the offence punishable under
Section 498A of the Indian Penal Code.
18. Considering the facts and circumstances of the case
and the evidence of the prosecution, we find and hold that the
prosecution has utterly and miserably failed to substantiate the
prosecution case beyond all reasonable doubts by adducing
consistent, cogent, trustworthy and reliable evidence. Hence, the
appellant is acquitted from the charge levelled against him.
Accordingly, the appeal is allowed and the impugned judgment and
order of conviction and sentence passed by the learned lower court is
set aside As the appellant is in custody, he is directed to be released
forthwith from the jail custody, if not wanted in any other case.
(Prakash Chandra Jaiswal, J.)
Samarendra Pratap Singh, J.
Mishra/- (Samarendra Pratap Singh, J.)
AFR/NAFR A.F.R.
CAV DATE 25.07.2017
Uploading Date 01.08.2017
Transmission 01.08.2017
Date
