IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.425 of 2003
1. Dileep Rajak, Son of Jagdish Rajak.
2. Manoj Rajak, Son of Lotan Rajak.
Both are residents of Mohalla – Shah Ki Gali, P.S. – Khajekalan, District –
Patna.
…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s
with
Criminal Appeal (SJ) No. 360 of 2003
1. Jagdish Rajak
2. Lotan Rajak
Both sons of Bhanu Rajak
3. Smt. Chinta Devi Wife of Jagdish Rajak
All are residents of Mohalla – Shah Ki Imli P.S. – Khajekalan, District –
Patna.
…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s
Appearance :
(In CR. APP (SJ) No.425 of 2003)
For the Appellant/s : Mr. Baban Roy, Amicus Curiae
For the Respondent/s : Mr. Bipin Kumar, APP
(In CR. APP (SJ) No.360 of 2003)
For the Appellant/s : Mr. Baban Roy, Amicus Curiae
For the Respondent/s : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 06-03-2018
As none has appeared on behalf of the appellants in spite of
repeated calls and it appears that the case is of the year 2003, I deem it
appropriate to appoint Mr. Baban Roy, who is present in the Court as
Amicus Curiae to assist the Court.
2. By way of the present appeal, appellants in both the appeals
Patna High Court CR. APP (SJ) No.425 of 2003 dt.06-03-2018
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seek to challenge the judgment of conviction and order of sentence
dated 04.07.2003, passed by Sri Chandra Shekhar Sharma, the then
Presiding Officer, Additional Court No. 1, Patna, Fast Track Court
No. 1, Patna, Adhoc Sessions Judge, Patna, in Session Trial No. 360
of 1991 / 168 of 2001, by which all the appellants stood convicted
under Sections 306 and 498A of the Indian Penal Code (hereinafter
referred to as the “IPC”) were sentenced to undergo R.I. for 05 years
under Section 306 and R.I. for 03 years under Section 498A of the
IPC.
3. Prosecution case as per the fardbeyan of deceased Baby Devi
recorded by the Lallan Prasad, S.I. of Pirbahore P.S., in Patliputra
Nursing Home on 07.02.1990 at 11.15 hours, in short is that the
marriage of the deceased/informant was solemnized with Deelip
Rajak about three years ago and out of the said wedlock a female
child was born. After marriage, the deceased was being subjected to
cruelty and harassment by her husband Deelip Rajak, father-in-law
Jagdish Rajak, cousin father-in-law Loten Rajak, mother-in-law
Chinta Devi and brother-in-law (devar) Manoj Rajak. They all
conspired to kill her and used to beat her and asked her to go out of
the house. Manoj Rajak pressurized her to go out of the house and
instigated her to kill herself. Thereafter, at about 12 A.M., she out of
anger, sprinkled kerosene oil on her body and set herself in fire and
due to which she received serious burn injuries and was taken to
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hospital by the neighbours. On the basis of the said statement of the
deceased Khajekalan P.S. Case No. 21/90 was registered against the
appellants.
4. Police after investigation submitted charge-sheet. Cognizance
of the offence was taken and the case was committed to the court of
sessions, which ultimately came to the file of Sri Chandra Shekhar
Sharma, the then Presiding Officer, Additional Court No. 1, Patna,
Fast Track Court No. 1, Patna, Adhoc Sessions Judge, Patna for Trial
and disposal.
5. Charges were framed under Sections 304B and 498A of the IPC
and alternative charge under Section 306 of the IPC was also framed.
6. In order to prove its case, prosecution has examined altogether
six witnesses, they are; P.W. 1 – Qudus Khan, P.W. 2 – Md. Yakub
@ Md. Yusuf, P.W. 3 – Govind Prasad, P.W. 4 – Mukesh Gupta,
P.W. 5 – Doctor Arvind Kumar Singh, who held post mortem
examination on the dead body of Baby Devi, P.W. 6 – S.I. Lallan
Prasad, who recorded the fardbeyan on the statement of deceased
Baby Devi.
7. Defence of the appellants is of innocence and false impliation.
8. Learned Trial Court after considering the evidence available on
record, though not found the appellants guilty under Sections 304B
IPC, however, he convicted all the appellants under Sections 306 and
498A of the IPC and sentenced them in the manner as stated above.
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9. Being aggrieved, the appellants preferred the present appeal.
10. Contention of learned Amicus Curiae is that in this case, there
is no evidence at all to show that the deceased was being subjected
cruelty or torture in connection with demand of dowry or she was ever
forced to commit suicide and further none of the witnesses have
supported the prosecution story, however, the trial court only on the
solitary evidence of S.I. Lallan Prasad (P.W. 6), who has recorded the
fardbeyan of the deceased Baby Devi and on the statement of Baby
Devi, has convicted the appellants. Further the deceased Baby Devi
had suffered 90 percent burn injuries and there is nothing available on
record to show that whether she was in a fit state of mind to make
statement before the police and also no signature of attesting witness
was taken. It has further been submitted that she was in hospital and if
the prosecution was interested to get her statement recorded, they
might have called the Magistrate, in whose presence, the statement of
deceased ought to have been recorded. In such a situation, so called
statement of the deceased does not inspire confidence and on that
basis alone the conviction of appellants under Section 306 and 498A
IPC does not appear to be sustainable in the eye of law.
11. Learned counsel for the respondent – State, on the other hand,
supported the finding of guilt recorded by the trial court and submitted
that though prosecution witnesses have not supported the case but the
deceased died after recording her statement and in her statement she
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has stated that all the accused persons tortured and harassed her and
forced her to commit suicide and the staid statement of the deceased
was recorded by S.I. Lallan Prasad, who has proved her statement as
such the statement of the deceased is admissible under Section 32 of
the Indian Evidence Act and, therefore, there is no infirmity in the
impugned judgment of trial court and conviction of appellants under
Section 306 and 498A of the IPC is just and proper.
12. Considered the rival contentions of the parties. From perusal of
the record, it appears that the deceased is informant in this case and
she died later on. Record also shows that she remained in hospital for
ten days with 90 percent burn injuries but no step was taken to get her
statement recorded by a Magistrate. There is nothing available on
record to show that she was in a fit state of mind to get her fardbeyan
recorded after receiving 90 percent burn injuries and further there is
no certification or endorsement of Doctor attending her to show that
she was in a fit mental state to make such a detail. Even there is
nothing in the evidence of I.O. (P.W. 6) that at the time of recording
her statement, the deceased was in a fit state of mind or not. The post
mortem report shows that she received burn injuries and burn injuries
on all over her body and line of redness and blisters were seen on all
the places of her body. Apart from that so far evidence of witnesses
are concerned, though P.W. 1 to P.W. 4 has stated about the marriage
of deceased with appellant Deelip Rajak and about her death also but
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from perusal of evidence of these witnesses, there does not appear an
iota of evidence to support prosecution case with regard to torture or
harassment to the deceased and forcing her to commit suicide rather
their evidence shows that there was some altercation on that day and
due to which, she committed suicide. There is also nothing available
on record to show as to who are the persons, who brought the
deceased to hospital and there is also nothing to show as to whether
there was any altercation between the deceased and her husband
Deelip Rajak. As a matter of fact, except the statement of the deceased
before police before her death, in which she made allegation of
cruelty, there is absolutely no materials available to shows that she
was tortured and harassed and was compelled to commit suicide by
setting herself in fire. In such a situation, the whole case is based on
the statement of deceased before the I.O., which is without any
certification or endorsement so as to show as to whether she was in a
fit mental state to get her fardbeyan recorded after receiving serious
burn injuries. However, learned trial court without considering all the
above inconsistencies, has based the conviction only on the surmises
and conjectures that since the deceased was alive for about ten days,
she must be in a fit state of mind to give her statement and there is no
occasion for the I.O. to falsely implicate the appellants. As such, this
Court does not find it safe to rely on statement of deceased without
any certification or endorsement of doctor so as to suggest that she
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was in a fit mental state and that too when there is no corroborative
evidence to convict the appellants.
13. In view of the discussions made above, it appears that the
prosecution has failed to establish its case beyond all reasonable
doubts. Accordingly, this appeal is allowed. The judgment of
conviction and order of sentence dated 04.07.2003, passed by Sri
Chandra Shekhar Sharma, the then Presiding Officer, Additional
Court No. 1, Patna, Fast Track Court No. 1, Patna, Adhoc Sessions
Judge, Patna, in Session Trial No. 360 of 1991 / 168 of 2001 is set
aside.
14. As the appellants are on bail, they are discharged from libailtiy
of bail bonds.
(Vinod Kumar Sinha, J)
sunil/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 12.03.2018
Transmission 12.03.2018
Date