Akash Kumar @ Chunnu vs The State Of Bihar on 28 July, 2017

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

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