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Ajit Poddar vs The State Of Bihar on 16 May, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 953 of 2013

Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur

Ajit Poddar son of Shankar Poddar, resident of Village- (Navtolia)
Bharanipur, Vishpuriya, Naya Tola, Police Station- Kharik, District-
Bhagalpur.

… … Appellant
Versus
The State of Bihar

… … Respondent

with
CRIMINAL APPEAL (DB) No. 874 of 2013

Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur

1. Shankar Poddar, son of Late Bhuvneshwar Poddar.

2. Mina Devi wife of Shankar Poddar
Both are resident of Village Bhavanpura Naya Tola, Police Station
Kharik, District – Bhagalpur.

… … Appellants
Versus
The State of Bihar

… … Respondent

with
CRIMINAL APPEAL (DB) No. 918 of 2013

Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur

Sujeet Poddar, Son of Shankar Poddar, resident of Village- Bhavanipur
Vishpuriya, Naya Tola, Police Station- Kharik, District- Bhagalpur.

… … Appellant
Versus
The State of Bihar

… … Respondent

Appearance :

(In CRIMINAL APPEAL (DB) No. 953 of 2013)
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
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with
(In CRIMINAL APPEAL (DB) No. 874 of 2013)
with
(In CRIMINAL APPEAL (DB) No. 918 of 2013)
For the Appellants : Mr. Ajit Kumar Ojha, Advocate
Ms. Nutan Mishra, Advocate
Mr. Pranjal Kumar, Advocate

For the Resp./State : Mr. Ajay Mishra, A.P.P.

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)

Date : 16-05-2019

Appellants in aforesaid three appeals were tried

together and by common judgment, they were convicted and

sentenced in Sessions Trial No. 692 of 2011/Sessions Trial No.

692A of 2011 and as such, all the three appeals were taken up

together under the heading “For Hearing” and are being disposed

of by this common judgment.

2. All the appellants by judgment dated 06-08-2013

were held guilty and convicted under Sections 304B/Section120B and

Section201 of the Indian Penal Code, 1860 (hereinafter referred to as

‘SectionI.P.C.’). By order dated 20-08-2013, Ajit Poddar (appellant in

Cr.App.DB No. 953/13) under Sections 304B r/w 120B of the

SectionI.P.C. has been sentenced to undergo rigorous imprisonment for

life and to pay a fine of Rs. 5,000/- (five thousand). In case of
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default in payment of fine, he was directed to further undergo

rigorous imprisonment for six months. Other appellants i.e.

Shankar Poddar, Mina Devi (both appellants in Cr.App.DB No.

874/13) and Sujit Poddar (sole appellant in Cr.App.DB No.

918/13) under Sections 304B/Section120B of the I.P.C. by the same

order i.e. order dated 20-08-2013 have been directed to undergo

rigorous imprisonment for 10 years and to pay a fine of Rs.

5,000/- (five thousand) each. In case of default in payment of

fine, they were directed to further undergo rigorous imprisonment

for six months. By the same order i.e. order dated 20-08-2013,

under Section 201 of the I.P.C., appellants in aforesaid three

appeals were sentenced to undergo rigorous imprisonment for

three years and to pay a fine of Rs. 5,000/- (five thousand) each.

In case of default in payment of fine, they were directed to

further undergo rigorous imprisonment for six months. The

judgment of conviction and sentence has been passed by Sri

Devendra Prasad Keshri, learned 4th Additional Sessions Judge,

Naugachia, District – Bhagalpur (hereinafter referred to as the

‘Trial Judge’) in Sessions Trial No. 692/2011 Sessions Trial No.

692A/2011 (arising out of Kharik P.S. Case No. 50 of 2011).
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3. Short fact of the case is that on 22-02-2010, a

complaint petition was filed, vide Complaint Case No. 102 of

2011, by Sri Kailash Poddar (P.W.3) arraying aforesaid four

appellants and one Amit Poddar as accused. In the complaint

petition, it was alleged that complainant’s daughter namely

Mamta Devi (deceased) was married on 27th February, 2009 with

Ajit Poddar (appellant in Cr.App.DB No. 953/13). The marriage

was solemnized under the Hindu rituals and after the marriage,

the complainant’s daughter went to her in-laws’ house and stayed

for about five days. Subsequently, with her husband she returned

back to her parental house. Again after 15 days, she alongwith

her husband went to her in-laws house, where complainant’s

daughter remained continuously for one year. During the said

period, the daughter of the complainant was administered torture

and she was asked to bring Rs. 1,00,000/- (one lack), colour

T.V. and motorcycle from her parents. The complainant’s

daughter was regularly telling that in her marriage, her parents

had already spent huge amount and gifted articles of several

lacks and it was not possible to fulfill the demand. Due to said

reason, the complainant’s daughter was regularly being tortured

by her husband, nsoj (younger brother of her husband), mother-
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in-law, father-in-law etc. and she was not being provided proper

food and clothes and they were also assaulting her. The

complainant disclosed that such information was being sent by his

daughter to her parents and other relatives and thereafter, the

complainant with his father-in-law and brother-in-law went to the

house of the accused on 02-12-2010 and tried to persuade them

not to do the same thing, but the accused persons, in presence of

those persons, had reiterated regarding the demand of dowry.

When all the persuasion went in vain, the complainant’s daughter

namely Mamta Devi told that the accused persons were planning

to kill her due to non-fulfillment of demand of dowry and on

number of occasions, she was assaulted. At the time, while the

daughter of complainant was returning back weepingly, she had

explained all these things before the neighbours. Since the

complainant was having some urgent work, he with his other

relatives returned back. On 15-01-2011, while the complainant

returned back, his daughter telephonically informed him

regarding assault and torture given by Sujit Poddar (appellant in

Cr.App.DB No. 918/13). On 13th February, 2011, Ajit Poddar

(appellant in Cr.App.DB No. 953/13) over mobile had threatened

the complainant that if the demand of dowry is not fulfilled, his
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daughter will be killed and her dead body will be thrown and he

(Ajit Poddar) would solemnise second marriage. The complainant

again tried to persuade him, but on 14 th February, 2011 at 4:00

hrs. in the evening, all the accused persons conspiring with each

other by sprinkling kerosene oil on the daughter of complainant

ignited her and she was done to death by burn injury and with a

view to conceal the evidence, the dead body of Mamta Devi was

wrapped with sand filled bag and it was thrown in Koshi river.

The complainant explained that the said occurrence was seen by

number of persons. The complainant in its complaint petition has

further stated that the complainant was informed by Sujit Poddar

(appellant in Cr.App.DB No. 918/13) through mobile phone and

he (complainant) was threatened that if any case is filed, no one

would be spared. The complainant after getting such information

reached the house of the accused persons, then the neighbours

informed him about the occurrence and accused persons had fled

away from the house. The complainant did not find his daughter

in the house nor he could notice any accused persons in the

house. The complainant thereafter informed local police station

and also senior police officer, however; no case was instituted.

The reason for delay in filing complaint was given that from
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15-02-2011 to 21-02-2011, there was strike of Advocates of the

court. The said complaint petition on the same date i.e. on

22-02-2011 was referred to the Kharik Police Station by the

learned Addl. Chief Judicial Magistrate, Naugachia (hereinafter

referred to as ‘A.C.J.M.’) for its institution and investigation under

Section 156(3) of the Code of Criminal Procedure, 1973

(hereinafter referred to as ‘SectionCr.P.C.’). Thereafter, on the basis of

said complaint, on 14-03-2011, a formal F.I.R., vide Kharik P.S.

Case No. 50 of 2011, was registered under Sections

304(B)/Section498(A)/Section201/Section120(B) of the I.P.C. and Sections 3/Section4 of the

Dowry Prohibition Act, 1961 (hereinafter referred to as ‘D.P.Act’)

against all the aforesaid four appellants including one Amit

Poddar, son of Shankar Poddar (appellant-1 in Cr.App.DB No.

874/13).

4. After registering the case, investigation was done

and thereafter, on 21-06-2011 chargesheet was submitted

against Sujit Poddar (appellant in Cr.App.DB No. 918/13)

showing other F.I.R. named accused persons as absconder. After

submission of chargesheet, on 26-06-2011 the learned A.C.J.M.

Naugachia took cognizance of the offence. On 04-07-2011, the

case of all the five F.I.R. named accused was committed to the
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court of sessions and it was numbered as Sessions Trial No. 692

of 2011. Thereafter, on 27-09-2011, charge against only

accused namely Sujit Poddar (appellant in Cr.App.DB No.

918/13) was framed under Sections 304(B), Section498A, Section201 and

Section120(B) of the I.P.C. and Sections 3/4 of the D.P. Act and case of

other accused persons was separated. Subsequently, on

09-11-2011 Ajit Poddar (appellant in Cr.App.DB No. 953/13)

surrendered, on 02-01-2012 Mina Devi (appellant-2 in

Cr.App.DB No. 874/13) surrendered and subsequently against

them, charge was framed under Sections 304(B), Section498A, Section201 and

Section120(B) of the I.P.C. and Sections 3/4 of the D.P. Act. Thereafter,

on 21-01-2012 Shankar Poddar (appellant-1 in Cr.App.DB No.

874/13) surrendered and on 21-03-2012 both the trials i.e.

Sessions Trial No. 692/2011 and Sessions Trial No. 692 A/2011

were amalgamated.

5. During the trial, to establish its case on behalf of the

prosecution, altogether five witnesses were examined. Out of five

witnesses, P.W.3 Kailash Poddar is the complainant/informant

and father of the deceased and P.W.2 Dharamshila Devi is the

mother of the deceased. P.W.1 Umesh Yadav and P.W.4
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Vedanand Yadav are independent witnesses, whereas P.W.5

Subodh Kumar is the investigating officer of the case.

6. After completion of the prosecution evidence, on

12-04-2013, the accused persons were questioned with

incriminating circumstances and evidences and their statement

under Section 313 of the Cr.P.C. was recorded, in which, they

denied the charges. However, no defence evidence has been

brought on record.

7. Sri Ajit Kumar Ojha, learned counsel appearing on

behalf of the appellants, after placing entire evidence on record,

has argued that the prosecution has miserably failed to establish

the case as of ‘dowry death’, in view of cogent evidence on

record, either regarding demand of dowry or administrating

torture on the deceased just prior to the occurrence. Sri Ojha,

learned counsel for the appellants submits that P.W.1 Umesh

Yadav, who during the evidence has claimed that on hulla, while

he reached near the house of the appellants, he saw smoke

coming from the house and he tried to enter into the house,

which was prevented by the accused persons, but during

investigation, no such fact was disclosed by him. The suggestion

was given to this witness that he had approached the appellants
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for demanding an amount of Rs. 5,000/- (five thousand) to say

the truth, however; due to non-fulfillment of such demand, this

witness P.W.1, contrary to the fact disclosed in his statement

recorded under Section 161 of the Cr.P.C., has deposed, as if, he

was eye-witness to the occurrence.

8. Sri Ojha, learned counsel for the appellants has also

argued that it appears that daughter of the

complainant/informant had not died in the house of the

appellants, rather she went missing from the house of the

appellants and subsequently, a false case was instituted, as if,

the appellants by way of sprinkling kerosene oil on deceased has

put her in flame and her dead body was disposed of. Sri Ojha has

argued that it is also improbable that after committing murder of

the daughter of the complainant, one of the accused can inform

the complainant on mobile that they had killed his daughter and

the story of threatening them appears to be not believable. He

has further argued that once the complainant was having

knowledge that dead body was thrown in Koshi river wrapped in a

bag filled with sand, firstly the complainant/informant would have

taken step to find the body in the river or the investigating officer

would have taken such step, but neither the
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complainant/informant nor the investigating officer has stated any

fact to the extent of searching the dead body.

9. As per Sri Ajit Kumar Ojha, learned counsel for the

appellants, for holding the appellants guilty for offence under

Section 304(B) of the I.P.C, onus was on the prosecution to

establish that soon before the death, the daughter of

complainant/informant was subjected to cruelty or harassment by

the accused persons regarding demand of dowry, however during

the evidence, it has come, as if, the younger brother of the

husband of the deceased was trying to establish illicit relation

with her. Such fact certainly may not be covered, as torture, due

to non-fulfillment of demand of dowry just before the death. He

further submits that the prosecution has not been able to

establish death of the daughter of the informant and as such, the

learned Trial Judge has incorrectly passed the judgment of

conviction and sentence.

10. Sri Ajay Mishra, learned Addl. Public Prosecutor

opposing the appeals has placed heavy reliance on the evidence

of P.W.1 namely, Umesh Yadav. He submits that Umesh Yadav

(P.W.1) was residing within the jurisdiction of same police station

where accused persons were residing. While he was teaching
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children, he heard the gYyk (hulla) and then he reached near the

house of the appellants, where he saw about 25 female had

assembled there. He was informed by them that the daughter of

complainant/informant was put on flame by the accused persons.

This witness has stated that he had seen smoke coming from the

house of the accused and he wanted to enter the house, but he

was prevented by the accused persons. According to Sri Mishra,

learned Addl. Public Prosecutor, the evidence of P.W.1 is itself

sufficient to show that it was a case of dowry death.

11. Sri Mishra, learned A.P.P. further submits that

mother and father of the deceased, who have been examined as

P.W.2 and P.W.3 respectively, have elaborately stated that the

deceased died within seven years of marriage and she was being

regularly tortured due to non-fulfillment of demand of dowry by

the accused persons. He has also referred to evidence of P.W.4,

who is another independent witness, to the extent that marriage

of deceased with Ajit Poddar (appellant in Cr.App.DB No.

953/13) was solemnized two years before the occurrence and she

died in the house of the appellants. Accordingly, Sri Mishra

submits that the judgment of conviction and sentence has rightly
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been passed by the learned Trial Judge, which requires no

interference.

12. Besides hearing learned counsel for the parties, we

have examined entire evidence on record, however; before

recording finding, it would be necessary to discuss the evidence,

which has been brought on record.

13. In this case, P.W.1 Umesh Yadav, resident of

village – Vishpuriya, P.S. Kharik, District – Bhagalpur has stated

that on 14-02-2011 at about 04:00 hrs. in the evening, in his

house, while he was teaching some children, he heard hulla and

when he came to know that in the house of Shankar Poddar

(appellant-1 in Cr.App.DB No. 874/13), fire has taken place, then

he went to the house of Shankar Poddar and inside house, he

saw smoke. The daughter-in-law of Shankar Poddar was in flame.

Just opposite the house of the appellant Shankar Poddar (in

Cr.App.DB No. 874/13), about 25 females were present, from

whom, he got information that due to non-fulfillment of demand

of dowry of Rs. One lakh, color T.V. and motorcycle, she was set

on fire. He further stated that Sujit, Ajit and Sumit (all sons of

Shankar Poddar) prevented him from entering the house. He

further stated that alongwith three accused persons, their mother
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and father were also there. He further stated that smell of

kerosene oil was coming. He disclosed the name of daughter-in-

law of Shankar Poddar and Mamta Devi (both appellants in

Cr.App.DB No. 874/13), who was married with Ajit Poddar

(appellant in Cr.App.DB No. 953/13). In paragraph-3, in his

evidence, he stated that after seeing those things, he returned

back to his house and after one half hour, one vehicle (gkQ

Mkyk) arrived and thereafter, all the aforesaid accused persons

loaded Mamta Devi (deceased) and went somewhere else. He

further stated in the same paragraph that subsequently he came

to know that injured was not carried to hospital and dead body of

deceased Mamta Devi has not been recovered till date. In

paragraph-5 of his cross-examination, he stated that he was

graduate and he was alone (bachelor) and he was doing private

tuition. Attention of this witness was drawn to his previous

statement recorded under Section 161 of the Cr.P.C. in

paragraph-9 of his cross-examination, this stand was got

contradicted at the time of examination of investigating officer

i.e. P.W.5. in his evidence in paragraph-15 (at page 38-39) that

Umesh Yadav/P.W.1 had not stated that he had seen the

daughter-in-law of Shankar Poddar (Appellant-1 in Cr.App.DB
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
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No. 874/13) while she was burning in flame. This witness

(P.W.1) has also not stated before him (I.O.) that he was

prevented by accused persons in entering the house of the

appellants. The investigating officer further stated that before

him, P.W.1 had not stated that while he returned to his house,

after one and half hour on a vehicle, Mamta (deceased) was

carried by all the accused persons and they disappeared the dead

body. On examination of evidence of investigating officer

(P.W.5), there is no reason to believe that this witness (P.W.1)

can be relied upon.

14. P.W.3 Kailash Poddar (complainant/informant and

father of the deceased) in his evidence has stated that occurrence

had taken place on 14-02-2011 in the evening at 04:00 hrs. He

deposed that he was telephonically informed by Sujit Poddar

(appellant in Cr.App.DB No. 918/13), who is brother of his son-

in-law Ajit Poddar (appellant in Cr.App.DB No. 953/13) that he

with Ajit, Sujit, Amit, Shankar Poddar and his wife Mina Devi all

by way of sprinkling kerosene oil on Mamta Devi had set her on

fire and she was done to death by burn injury and her dead body

was thrown in river. This witness further stated that he was also

threatened by Sujit Poddar (appellant in Cr.App.DB No. 918/13)
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not to make any complaint. On getting said information, the

complainant/informant from Delhi straightway came to in-laws

house of his daughter, where he noticed that the door of Shankar

Poddar (A-1 in Cr.App.DB No. 874/13) was locked and he stayed

there for 20-25 minutes, however; he did not see his daughter

and on enquiry, Umesh Yadav (P.W.1) and other neighbours told

him that Shankar Poddar (A-1 in Cr.App.DB No. 874/13), his

wife Mina Devi (A-2 in Cr.App.DB No. 874/13) and others jointly

by way of sprinkling kerosene oil and igniting had killed his

daughter and thrown the dead body in river. He was further

informed by them that his daughter was tortured by the accused

persons. The marriage of his daughter was solemnized on

27-02-2009 with Ajit Poddar (App. in Cr.App.DB No. 953/13),

son of Shankar Poddar (A-1 in Cr.App.DB No. 874/13). In

paragraph-4, he stated that he informed Kharik Police Station

regarding the occurrence, however Darogaji did not lodge case,

then on 18-02-2011 he came to court, but there was strike of

Advocates from 16-02-2011 to 21-02-2011 and as such, on

22-02-2011 he filed a complaint case in Naugachia court, which

was sent to Kharik police station. He identified his signature on

the complaint petition, which was marked as Ext.1. In paragraph-
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5, he further stated that before the occurrence, his deceased

daughter was telling that accused persons, due to non-fulfillment

of demand of dowry of Rs. one lack, colour TV and motorcycle,

were assaulting her and torturing her. In paragraph-7 of his

cross-examination, he stated that on 14-02-2011 in the evening

at 06:00 hrs. he got information. The information was given on

mobile of his son. On 15-02-2011 by Vikramshila Train from

Delhi, he proceeded to Bhagalpur. On 16-02-2011 in the night at

09:00 PM, he got down at Bhagalpur, since train was delayed. He

stayed in Bhagalpur itself and thereafter in the morning, he came

to Naugachia and he reached Kharik. Firstly, he went to the

house of Shankar Poddar in Kharik. He went there on foot. It was

about 4:00 PM. He informed his father-in-law, who was residing

in village Puraini, which was about 25 kilometer away from

Kharik, then with his father-in-law, he went to the in-laws house

of his daughter. The name of his father-in-law was Suresh

Poddar (not examined). In paragraph-10 of his cross-

examination, P.W.3 stated that on 17 th February, 2011 from

Kharik Station, he had given telephone call to his father-in-law

Suresh Poddar, with him, he firstly went to the in-laws house of

his daughter and reached at 04:00 PM, where he saw that house
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was locked and after inquiring from neighbours, he directly went

to Kharik police station and reached Kharik police station at

05:00 PM and orally informed the police, however case was not

instituted. In paragraph-10 he further accepted that neither oral

nor in writing, he informed S.P. or D.S.P. In paragraph-11 of his

cross-examination, he further stated that regarding information

given by his daughter, reiterating the demand of dowry, he had

never given any information to anyone. In paragraph-12 of his

cross-examination, he stated that he did not try to search the

dead body in Koshi river. In paragraph-14 of his cross-

examination, he denied the suggestion that his daughter died in

Delhi and he has falsely lodged the present case with a view to

extort money.

15. P.W.2 Dharmshila Devi is the mother of the

deceased. She too deposed almost in similar manner like P.W.3,

however in paragraph-3 of her evidence, she stated that one

month prior to the date of occurrence, her daughter had informed

that Sujit Poddar (appellant in Cr.App.DB No. 918/13) younger

brother of husband of her daughter was trying to establish illicit

relation with her daughter, which was being opposed by her and

this was the reason that her daughter was assaulted. In
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paragraph-5 of her cross-examination, she stated that she was

residing in Delhi since five year with her husband and her other

family member. In paragraph-8 of her cross-examination, she

stated that her son-in-law Ajit Poddar (appellant in Cr.App.DB

No. 953/13) was having fields and he was agriculturist. Shankar

Poddar (A-1 in Cr.App.DB No. 874/13) was having two bigha of

land. She stated that for about 15 days, her son-in-law stayed at

her house, but he had not demanded anything. Five days after

her daughter stayed in her in-laws house and when she returned,

at that very time also, she did not say about the demand of

dowry. In paragraph-13 of her cross-examination, she stated that

on 14-02-2011, Sujit (App.in Cr.App.DB No. 918/13) over

telephone had informed, however; after getting that information,

she had not initiated any proceeding. In paragraph-18, she

admitted that she was not having any evidence regarding demand

of dowry nor any case was instituted. Attention of this witness

was drawn to her previous statement in paragraph-20 of her

evidence and the investigating officer/P.W.5 in paragraph-14 has

stated that this witness had not stated that Sujit (appellant in

Cr.App.DB No. 918/13) on mobile had informed that he had

sprinkled kerosene oil on her daughter and killed her. In
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paragraph-16, he (P.W.5) deposed that she (P.W.2) was not

knowing any neighbour nor she had any talk with any neighbour

of the accused persons, however; P.W.3/her husband in his

evidence has stated that he had inquired regarding the

occurrence and thereafter, he proceeded to police. This witness

(P.W.2) was also given suggestion that the said case was

instituted for extortion of money, which was denied by her.

16. P.W.4 Vedanand Yadav, who is resident of village

Vishpuriya in his evidence has stated that Ajit Poddar (appellant

in Cr.App.DB No. 953/13) was married with the daughter of

complainant/informant Kailash Poddar about two years back from

the date of occurrence and her death had occurred in her in laws

house, however; in paragraph-3 of his cross-examination, he

admitted that he had not seen the occurrence.

17. P.W.5 Subodh Kumar on 14-03-2011 was officer

incharge of Kharik Police Station and he proved the formal F.I.R.

which was marked as Ext.2 and his signature on formal F.I.R.

which was marked as Ext.2/1. He stated that on 14-03-2011 he

had drawn a formal F.I.R. on the basis of Complaint Case No.

102 of 2011. After registering F.I.R., he took up investigation

himself and during investigation, he recorded re-statement of
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complainant/informant (P.W.3) and also examined Dharmsheela

Devi (P.W.2) and thereafter, he visited the place of occurrence,

which was the house of Shankar Poddar (A-1 in Cr.App.DB No.

874/13) in the village Vishpuriya (Naugachia). He noticed that on

the main door, there was a lock and accused persons were

absconding. In paragraph-3 of his evidence, he has explained the

place of occurrence. During investigation, he recorded statement

of Umesh Yadav (P.W.1), Police Yadav, Suresh Yadav and

Solanki Devi (all not examined). He also examined Vedanand

Yadav (P.W.4) and Vikash Kumar (not examined). In paragraph-

8 of his cross-examination, he stated that though occurrence had

taken place on 14-02-2011, as stated in complaint petition,

however even after such heinous crime, neither chowkidar nor

any local person had given any information to the police station.

However during investigation, he had not inquired either from

Mukhiya or Sarpanch regarding the occurrence. In paragraph-10

of his cross-examination, he stated that on 14-03-2011, he had

inspected the place of occurrence. The house was not having any

boundary wall, however he had not prepared any seizure list of

any article from the place of occurrence. In paragraph-12 of his

cross-examination, he has stated that regarding torture for
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
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dowry, no complaint was made by the complainant/informant.

While he reached the place of occurrence, on the door of the

house, there was a lock. With the help of neighbours, from the

back door, he entered into the house. In paragraph- 14, 15 and

16 he has stated regarding the fact stated by P.W.2 (Dharmshila

Devi), P.W.1 (Umesh Yadav) and P.W.3 (Kailash Poddar)

respectively in their statement. In paragraph-17 of his cross-

examination, he has admitted that he had not recorded any

statement of either of the accused persons. On examination of

evidence of the investigating officer, it is evident that he had not

bothered even to examine accused persons to ascertain the fact

regarding disposal of the dead body nor he has taken step for

searching the dead body.

18. On examination of aforesaid evidences, it appears

that prosecution has not been able to establish death of daughter

of the complainant/informant, though to this extent, P.W.1 was

introduced, however P.W.1 in his previous statement had not

stated any such fact and during the trial, he developed the story,

as if, he had seen while deceased was burning. The evidence of

P.W.1, in such situation, appears to be not credible.
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
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19. So far as application of Section 304(B) of the

I.P.C., in the facts and circumstances of the present case, is

concerned, we do not find any such material brought on record by

the prosecution. The prosecution has not been able to establish

that just prior to disappearance of the daughter of the

complainant/informant, she was subjected to cruelty due to non-

fulfillment of demand of dowry. Only in a vague manner, it has

been stated that rupees one lack, colour T.V. and motorcycle

were being demanded, however; substantively such evidence has

not been brought on record.

20. In such situation, the Court is of the opinion that

the prosecution has miserably failed to establish its case,

particularly; regarding death of the daughter of the informant due

to non-fulfillment of demand of dowry. The prosecution has also

not given plausible explanation regarding non-lodging of F.I.R.

directly after getting the information of the occurrence. It also

appears to be not believable that once the complainant had got

an information that the dead body of his daughter, with a view to

conceal the evidence, was thrown in Koshi river tying with bag

full of sand, then why any step was not taken to search the dead

body. The evidence of investigating officer is also indicative of the
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
24/25

fact that no step was taken to search the so called dead body of

the daughter of the complainant/informant. Since the evidence of

P.W.1 is not beyond the shadow of doubt, there is difficulty in

coming to the conclusion that the prosecution has proved its case

beyond all reasonable doubt.

21. In view of facts and circumstances, we are of the

considered opinion that the prosecution has not been able to

establish its case beyond all reasonable doubt and as such, by

way of extending benefit of doubt, it is desirable to interfere with

the judgment of conviction and sentence.

22. Accordingly, the judgment of conviction dated

06-08-2013 and order of sentence dated 20-08-2013 passed by

the learned 4th Additional Sessions Judge, Naugachia, District –

Bhagalpur in Sessions Trial No. 692 of 2011/Sessions Trial No.

692A of 2011 (arising out of Kharik P.S. Case No. 50 of 2011)

is, hereby, set aside and all the appellants, in aforesaid three

appeals, are acquitted from all the charges.

23. Since the judgment of conviction and sentence has

been set aside, Ajit Poddar {appellant in Cr.Appeal (DB) No. 953

of 2013}, who is in custody, is directed to be released forthwith,

if not wanted in any other case and Shankar Poddar, Mina Devi
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
25/25

{both appellants in Cr.Appeal (DB) No. 874 of 2013} as well as

Sujit Poddar {sole appellant in Cr.Appeal (DB) No. 918 of 2013},

who are on bail, are discharged from the liability of their bail-

bonds.

24. All the aforesaid three appeals are allowed.

(Rakesh Kumar, J.)

(P.C.Jaiswal, J.): I agree.

( Prakash Chandra Jaiswal, J.)

Anay

AFR/NAFR AFR
CAV DATE 09.04.2019
Uploading Date 16.05.2019
Transmission Date 16.05.2019

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