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Jagdish Rajak & Ors vs State Of Bihar on 6 March, 2018

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
Patna High Court CR. APP (SJ) No.425 of 2003 dt.06-03-2018

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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.
Patna High Court CR. APP (SJ) No.425 of 2003 dt.06-03-2018

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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
Patna High Court CR. APP (SJ) No.425 of 2003 dt.06-03-2018

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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
Patna High Court CR. APP (SJ) No.425 of 2003 dt.06-03-2018

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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

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