IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.48 of 1995
Arising Out of PS.Case No. -null Year- null Thana -null District- AURANGABAD
1. Balmukund Pandey (Since Deceased), son of late Gaya Dutta Pandey
2. Anil Pandey, son of Sri Jugal Kishore Pandey
Both resident of village Dhanibar, P.S. Rishiup, District-Aurangabad
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent
Appearance :
For the Appellant : Mr. Shashi Chandra Pandey, Adv.
Miss Surya Nilambri, Amicus Curiae
For the State : Mr. Dilip Kumar Sinha, A.P.P.
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)
Date: 26-10-2018
1. This criminal appeal has been preferred against the
impugned judgment of conviction and sentence order dated
31.03.1995 passed by learned 2nd Additional Sessions Judge-
Aurangabad in Sessions Trial No. 200 of 1994/81 of 1994 by which
and whereunder he convicted the appellants for the offences
punishable under Sections 304-B, 201, 498-A of the Indian Penal
Code whereas acquitted them of the charges framed under Section 302
of the Indian Penal Code and Section 4 of D.P. Act and accordingly,
sentenced them to undergo rigorous imprisonment for life for the
offence punishable under Section 304-B of the Indian Penal Code, to
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undergo rigorous imprisonment for three years for the offence
punishable under Section 201 of the Indian Penal Code and to
undergo rigorous imprisonment for one year for the offence
punishable under Section 498-A of the Indian Penal Code. However,
all the sentences were ordered to run concurrently.
2. It is pertinent to note here that during pendency of this
criminal appeal, appellant no. 1, namely, Balmukund Pandey died and
accordingly, his appeal stood abated vide order dated 18.08.2018.
3. PW-2, namely, Mithilesh Kumar Pandey gave his
ferdbeyan to PW-7 on 25.04.1994 at about 5:00 PM. at village
Dhanibar to this effect that he got information from the PW-4 Murari
Mishra that his niece, namely, Kusum Devi was killed by her husband
as well as grand father of her husband by pressing her neck and after
that by putting her on fire. The PW-4 also informed that dead body of
Kusum Devi had been burnt to ash. PW-2, further, claimed that
having got the aforesaid information, he immediately went to Village
Dhanibar where he came to know from the villagers that at the time of
alleged occurrence, both the appellants were present at their house and
the appellant no. 2, who happens to be husband of deceased Kusum
Devi, pressed her neck and after that put her on fire and by doing the
aforesaid act he gave the colour of an accident. The PW-2, further,
claimed that aforesaid occurrence took place at about 8:00 A.M. but
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he was never informed by the appellants. The PW-2, further, claimed
that appellant no. 2 Anil Pandey was demanding motorcycle in dowry
and when the aforesaid demand was not fulfilled, the deceased was
subjected to cruelty. PW-2, further, claimed that marriage of deceased
had taken place in the year 1991 with appellant no. 2. He, further,
claimed that appellant no. 2 was a drunkard and the aforesaid habit of
appellant no. 2 caused difference between him and the deceased. The
PW-2 claimed that deceased was killed by the appellants and
subsequently, her dead body was cremated.
4. On the basis of aforesaid ferdbeyan of PW-2, Baroon
(Risiup) P.S. Case No. 51 of 1994 for the offences punishable under
Sections 498-A, 302, 201/34 of the Indian Penal Code and Section 4
of D.P. Act, 1961 was registered and accordingly, formal FIR was
drawn up against the appellants for the aforesaid offences on the same
day.
5. The matter was investigated by the PW-7 and after
completion of investigation, he submitted charge-sheet for the
aforesaid offences against the appellants. The cognizance of the
offence was taken and the case was committed to the court of sessions
in usual way and accordingly, both the appellants were put on trial
before the court below.
6. The appellants stood charged for the offences
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punishable under Sections 302, 304-B, 201, 498-A of the Indian Penal
Code and Section 4 of D.P. Act, 1961. The appellants denied the
charges and claimed to be tried.
7. In order to prove the charges, the prosecution
examined, altogether, 8 witnesses and also got exhibited certain
documents including two letters said to be written by the deceased as
Ext. 2 series. The statements of appellants were recorded under
Section 313 of the Cr.P.C. in which they reiterated their innocence
and denied the prosecution story. The defence also got examined three
defence witnesses in support of their defence.
8. The learned trial court after perusing the evidences
available on the record convicted and sentenced the appellants in the
manner as stated above having relied upon the testimonies of
prosecution witnesses in general and Ext. 2 series in particular.
9. Miss Surya Nilambri, learned Amicus Curiae
appearing for the appellant no. 2, namely, Anil Pandey submits that
learned trial court failed to notice that prosecution could not succeed
to prove all the essential ingredients of Section 304-B of the Indian
Penal Code. She, further, submits that to seek conviction under
Section 304-B of the Indian Penal Code, it is the duty of the
prosecution to prove all the essential ingredients of Section 304-B of
the Indian Penal Code and unless all the ingredients of Section 304-B
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of the Indian Penal Code are proved, the judgment of conviction
cannot be passed under Section 304-B of the Indian Penal Code. She
submits that in the present case, prosecution failed to prove that
deceased was subjected to cruelty soon before her death and also
failed to prove that any dowry demand was made by the appellant no.
2.
10. Learned Amicus Curiae, further, submits that learned
trial court relied upon Ext. 2 series but failed to take notice of this fact
that the aforesaid two letters were forged documents. Continuing her
submission, she submits that PW-3, who has brought the aforesaid
letters before the court at the time of his evidence, frankly admitted
that writing on envelope as well as on letters are quite different and
the aforesaid admission of PW-3 goes to show that the writings on
envelop as well as letters are of two persons. She, further, submits that
PW-7 has stated in his deposition that letters and envelops were
handed over to him by PW-3 on 27.04.1994 and the entry regarding
handing over of the aforesaid letters and envelops was made by him in
case diary but mistakably in place of envelop, he wrote inland letters
in the case diary. She submits that the aforesaid fact creates some
suspicion and it appears that subsequently, the prosecution got
manufactured so-called letters and produced before the trial court.
11. Learned Amicus Curiae, further, submits that learned
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trial court has relied upon letters and envelops (Ext. 2 series) but no
question regarding the aforesaid letters and envelops was put up to
appellant no. 2 while recording his statement under Section 313 of the
Cr.P.C. and, therefore, no opportunity was given to appellant no. 2 to
explain about the genuineness of aforesaid letters and envelops.
12. Learned Amicus Curiae, further, submits that
moreover, there is nothing in the entire evidence to show that it was
appellant no. 2 who demanded motorcycle in dowry and subjected the
deceased into cruelty because almost all the material witnesses
including father of the deceased claimed that it were other family
members of the appellant no. 2 who informed them that appellant no.
2 was not satisfied with the articles given to him at the time of
marriage and gauna. She submits that mere dissatisfaction is not
amount of making demand of dowry because none of the prosecution
witnesses claimed that appellant no. 2 had ever been made any
demand.
13. Learned Amicus Curiae, further, submits that learned
trial court has acquitted the appellants of the charge framed under
Section 4 of D.P. Act, 1961 but surprisingly enough, convicted the
appellants for the offence punishable under Sections 498-A and 304-B
of the Indian Penal Code. She submits that when the charge of
demand of dowry could not be established, the appellants could not
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have been convicted for the offences punishable under Sections 498-A
and 304-B of the Indian Penal Code.
14. Learned Amicus Curiae, further, submits that
defence witnesses very clearly stated that house of appellant no. 2 was
caught in fire accidentally and deceased was engulfed in the aforesaid
fire and unfortunately died due to burn injuries.
15. On the other hand, learned Additional Public
Prosecutor supported the impugned judgment of conviction and
sentence order arguing that all the material prosecution witnesses
including father of the deceased very clearly stated that the appellants
had demanded motorcycle in dowry and when the demand was not
fulfilled, the deceased was subjected to cruelty and harassment and
subsequently, she was put on fire. Learned Additional Public
Prosecutor submits that Ext. 2 series support the aforesaid fact as
deceased had written letters to her parents prior to her death narrating
her ordeal, specifically, mentioning regarding the illegal demand as
well as factum of torture. Learned Additional Public Prosecutor,
further, submits that it is an admitted position that marriage of
deceased had taken place with appellant no. 2 in the year 1991 and she
died within seven years of her marriage due to burn injuries at her
matrimonial home and, therefore, it is obvious that prosecution
succeeded to prove all the ingredients of Section 304-B of the Indian
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Penal Code and, therefore, the learned trial court rightly convicted the
appellants for the offences punishable under Sections 304-B and 498-
A of the Indian Penal Code. He, further, submits that prosecution
witnesses, specifically, stated that dead body of the deceased was
cremated after her murder and PW-7 seized bones and ash from the
burning ghat and, therefore, the learned trial court rightly convicted
the appellants for the offence punishable under Section 201 of the
Indian Penal Code.
16. Having heard the contentions of both the parties, we
went through the record. As we have already stated that, altogether,
eight prosecution witnesses were examined by the prosecution to
prove its case. Out of them PW-1 Krishna Murari Pandey is relative of
PW-4 and this witness claimed that he alongwith one Saroj Babu had
gone to the house of the appellants in connection with negotiation of
marriage of appellant no. 2 and at the time of negotiation, appellant
no. 1 Balmukund Pandey (since deceased) and father of appellant no.
2 told that the appellant was demanding motorcycle but lastly the
matter was settled as the bride party agreed to give a television but
after marriage the appellant no. 2 used to make demand of
motorcycle. This witness further claimed that one year prior to the
alleged occurrence there was Sataisa at his home and his son
Parshuram Pandey, his brother Awadh Kishore Pandey and PW-3, the
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father of deceased had gone to the village of appellants to take Bidai
of the deceased but the appellants did not allow the deceased to go
with them and subsequently, Awadh Kishore Pandey informed him
that deceased had asked him not to come again for Bidai and at that
time she was weeping. This witness, further, claimed that mother in
law of the deceased had given threatening to Awadh Kishore. This
witness, further, claimed that appellant no. 1 Balmukund Pandey
(since deceased) came to his house to attend the Sataisa and he had
made complaint to him for not allowing the deceased to participate in
Sataisa. This witness, further, claimed that relation of the deceased
with her husband was not cordial. However, this witness claimed that
three months prior to the alleged occurrence, the PW-3 took the
deceased to his home and after that thrice the appellant no. 2 came to
the house of PW-3 for taking Bidai of the deceased but deceased was
not allowed by PW-3 to go to her matrimonial home. This witness,
further, claimed that however, one and half months ago to the alleged
occurrence the deceased was allowed to go to her matrimonial home
but on 25.04.1994 he got information of the alleged occurrence from
Murari Pandey, Bhuneshwar Pandey and others. This witness
admitted in his cross examination that as soon as he got information
of the alleged occurrence, he informed his family members and
villagers. This witness, further, admitted that at that time the parents
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of the deceased were at Daltenganj. This witness, further, stated that
he went to the matrimonial house of the deceased on 27.04.1994 but
did not give any information to parents of the deceased in respect of
the alleged occurrence. This witness admitted that south portion of
house of the appellants was completely burnt and articles kept in the
room situated at south-east of the house were also completely burnt.
This witness admitted that at the time of negotiation of marriage,
when he as well as natal people of the deceased expressed their
inability to give motorcycle in dowry and made proposal to give
television, the in-laws of the deceased readily agreed to accept the
television. This witness admitted that at the time of negotiation of
marriage, he had talked with Balmukund Pandey and Yugul Kishore
Pandey and after marriage of deceased he had never visited the
matrimonial home of the deceased. This witness admitted that he had
met appellant no. 2 Anil Pandey after his marriage but he had no
complain with the behaviour of appellant no. 2 Anil Pandey.
17. PW-2 Mithilesh Kumar Pandey is informant of the
present case. This witness stated that on 25.04.1994 at about 12:OO
noon PW-4 gave information to him about the alleged occurrence and
having got the aforesaid information, he along with PW-4, Paras Nath
Mishra, Gautam Pandey and Uday Pandey went to the village of
appellants where he came to know that the appellants committed the
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murder of the deceased by pressing her neck and after that her dead
body was put on fire. This witness claimed that he came to learn the
above stated facts from one Gopal Pandey and Vijay Singh of village
Dhanibar. This witness, further, stated that at the time of marriage, the
appellants and mother of appellant no. 2 had made demand of
motorcycle but the aforesaid demand could not be fulfilled and
similarly, at the time of performing Gauna, the above stated demand
was made. This witness, further, stated that he as well as others had
gone to the village of the appellants to take Bidai of the deceased at
the time of function of Sataisa at his home but the deceased was not
allowed to go with them as the appellants and mother of appellant no.
2 demanded motorcycle in dowry and said that unless the motorcycle
in dowry is given, the deceased would not be allowed to go to her
parental home. This witness, further, claimed that information in
respect of death of deceased was not given to him as well as his other
family members by the appellants. This witness stated in his cross
examination that when PW-4 gave information to him about the
alleged occurrence, Naresh Pandey, Shyamdeo Pandey and Damodar
Pandey were present there. This witness, further, stated that he did not
give any information to the villagers nor to the family members of his
family about the alleged occurrence. This witness, further, admitted
that he also did not send any information of the alleged occurrence to
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the father of the deceased who was at Daltenganj at that time. This
witness, further, admitted that when he reached at the village of
appellants, he had talked with Gopal Pandey and others and
subsequently, he lodged the case on the basis of information given by
the Gopal Pandey and PW-4 Murari Mishra. This witness, further,
admitted that PW-4 disclosed to him that one Panditji of village
Dhanari had given information to him about the alleged occurrence.
This witness, further, admitted that DW-1 Vivekanand Mishra is his
brother in law and he has no enmity with DW-1. This witness, further,
admitted that on 26.04.1994 he met his brother Anirudh Pandey (PW-
3) at Risiup police station and PW-3 told him that he got information
about the alleged occurrence from DW-1, DW-2 and DW-3.
18. PW-3 Anirudh Pandey is father of the deceased. This
witness claimed that marriage of deceased was solemnized with
appellant no. 2 Anil Pandey in the year 1991 and at the time of
marriage, appellant no. 1 Balmukund Pandey (since deceased) Yugal
Kishore Pandey, Narvdeshwar Pandey and appellant no. 2 Anil
Pandey had demanded one motorcycle in dowry but, anyhow, matter
was settled and in place of motorcycle, one television and one fan had
to be given and subsequently the marriage was solemnized. He,
further, claimed that in March 1993, Duragman of his daughter was
solemnized and at that occasion also, appellant no. 2 demanded one
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motorcycle but he expressed his inability to fulfil the aforesaid
demand. This witness, further, claimed that in the month of April
1993, the appellant no. 1 (since deceased) had attended the function of
Sataisa at his home and when he asked about the Bidai of the
deceased, the appellant no. 1 (since deceased) told that unless the
demand of motorcycle is fulfilled, the Bidai of the deceased is not
possible. This witness, further, claimed that in the month of August
1993, he took the Bidai of the deceased and took her to Daltenganj
where several times appellant no. 2 came for Bidai of deceased and
subsequently, on 13.03.1994, he allowed the deceased to go to her
matrimonial home but on 25.04.1994 his daughter was killed by the
appellants. This witness claimed that appellants used to torture the
deceased mentally and physically and deceased had written letters to
him disclosing the torture meted out to her as well as illegal demand
of the appellants. This witness proved two letters along with envelops
as Ext. 2 series. This witness admitted that envelops of the aforesaid
letters were not in handwriting of the deceased. This witness also
admitted that except two letters, he had no other letters of the
deceased. This witness, further, admitted that deceased remained at
her matrimonial home from 21.05.1993 to August 1993 and from
13.03.1994 to 25.04.1994. This witness, further, claimed that
deceased was a literate lady and she had passed Vidhya Vinodini
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examination. This witness produced certificate of Vidhya Vinodini
examination which has been marked as ‘X’ for identification. This
witness admitted that he got information about the alleged occurrence
on 25.04.1994 at about 3:00 to 4:00 P.M from one Sudhanshu Tiwary
of village Bhairopur who gave the aforesaid information on telephone.
This witness, further, claimed that he proceeded from Daltenganj in
the morning of 26.04.1994 and straightway went to Risiup police
station where he remained 10 to 15 minutes but he could not meet the
Officer in charge of Risiup police station. However, he met PW-2 and
got further information in respect of the alleged occurrence from PW-
2. He, further, claimed that he went to the house of appellants on
27.04.1994 where again Ramji Pandey, Raleshwar Pandey etc. gave
information to him about the alleged occurrence. This witness
admitted that having got letters of deceased he talked with appellants
and their family members but they did not behave properly but even
then he did not lodge any case nor gave any sanha regarding the above
stated fact. This witness denied that he had shown the police two
inland letters in course of investigation and subsequently, got
manufactured forged letters.
19. Another important witness is PW-4 who is relative
of PW-2 and PW-3. This witness claimed that Murari Mishra of
village Dhanari gave information to him about the alleged occurrence
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and after that he as well as Bhuvneshwar Mishra and Parasnath
Mishra gave information to PW-2 about the alleged occurrence and,
thereafter, they along with others went to burning ghat where in their
presence police seized ash and bones from the burning ghat. This
witness proved his signature on the seizure list.
20. PW-5 Awadh Kishore Pandey is also a witness on
the point of demand of dowry and torturing. This witness claimed that
in the month of June/July 1993, he had gone to the house of appellants
to take Bidai of the deceased who was his cousin niece but Jugal
Kishore Pandey and Abha Devi as well as appellants demanded one
motorcycle in dowry. This witness claimed that his niece (deceased)
started weeping and after that he returned to his home. However, this
witness, further, claimed that appellant no. 1 had come to attend the
function of Sataisa and at that time also, appellant no. 1 disclosed that
appellant no. 2 was demanding motorcycle. This witness, further,
claimed that initially, the date of Sataisa was fixed in the month of
April but subsequently, it was re-fixed in the month of June/July.
21. PW-6 is a formal witness who proved the certificate
of Vidhya Binodini examination of deceased as Ext. 4.
22. PW-7 Rajendra Prasad is investigating officer of this
case. This witness claimed that on 25.04.1994 at about 9:10 A.M. he
got a rumor that dead body of wife of appellant no. 2 Anil Pandey was
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being cremated and having made sanha entry to the aforesaid
information, he went there and found that dead body had already been
burnt. Subsequently, he seized bones and ash. This witness also
claimed that he recorded the ferdbeyan of PW-2 at 5:10 P.M. He also
claimed that he inspected the place of occurrence and found that one
room of the house of the appellants was completely burnt and articles
kept in the aforesaid room were also burnt. This witness also found
that Chajja of the aforesaid room had been removed. This witness
further stated that PW-3 had given two letters to him on 27.04.1994
but mistakably he wrote in his case diary that PW-3 had given two
inland letters to him. This witness admitted that he had not made any
mark or sign on the aforesaid letters or envelops. This witness,
further, admitted that he had not sealed the seized ash and bones. This
witness stated that seized ash and bones had been wrapped in a
newspaper but he had not given case number on the aforesaid packet.
23. PW-8 is a formal witness who has proved formal
FIR as Ext. 6.
24. After perusal of above stated evidences adduced on
behalf of the prosecution, we find that PW-1 Krishna Murari Pandey,
PW-2 Mithlesh Kumar Pandey, PW-3 Anirudh Pandey, PW-5 Awadh
Kishore Pandey are said to be witnesses on the point of demand of
motorcycle. However, PW-1 claimed that he and one Saroj Babu had
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gone to the house of appellants for negotiation of marriage of the
deceased and at that time, the appellant no. 1 Balmukund Pandey
(since deceased) and father of appellant no. 2 had disclosed that
appellant no. 2 was insisting for taking motorcycle in dowry but the
matter was resolved as in-laws of the deceased agreed to take
television instead of motorcycle. However, PW-1 claimed that even
after solemnization of marriage, the appellant no. 2 used to make
demand of motorcycle. This witness admitted at para 5 of his cross
examination that after marriage he had talked with appellant no. 2 but
he had no grievance or complain against the behaviour of appellant
no. 2. The aforesaid admission of PW-1 goes to show that claim of
making demand of motorcycle after solemnization of marriage was
not genuine because had the appellant no. 2 made demand of
motorcycle even after solemnization of marriage, the PW-1 would
have certainly expressed his dissatisfaction about the behaviour of
appellant no. 2. Moreover, this witness has, nowhere, stated that
appellant no. 2 had directly made demand of motorcycle in his
presence. PW-2 Mithlesh Kumar Pandey is uncle of the deceased.
This witness claimed that both the appellants and mother of appellant
no. 2 had made demand of motorcycle and again when he went to take
Bidai of the deceased at the occasion of Sataisa, the mother of
appellant no. 2 made demand of motorcycle. Therefore, it is obvious
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from the aforesaid statement of PW-2 that omnibus allegation of
demand of motorcycle has been levelled against the appellants.
However, the attention of this witness was drawn towards his previous
statement recorded under Section 161 of the Cr.P.C. and this witness
stated that he had made statement before the police that both the
appellants and mother of appellant no. 2 had demanded motorcycle in
dowry but PW-7 at para 19 of his cross examination stated that PW-2
had not made statement before him to this effect that both the
appellants and mother of appellant no. 2 had demanded motorcycle in
dowry. Again, the attention of PW-2 was drawn towards his previous
statement recorded under Section 161 of the Cr.P.C. and this witness
claimed that he had made statement before the PW-7 to this effect that
at the time of solemnization of Gauna, the demand of motorcycle was
made but PW-7 at para 19 of his cross examination denied the
aforesaid fact and stated that PW-2 had not made such statement
before him. Again, PW-2 claimed that he had made statement before
the police that when he went to take back deceased on the occasion of
Sataisa, the mother of appellant no. 2 had made demand of
motorcycle. However, the PW-7 again denied the aforesaid fact and
stated that PW-2 had not made statement that mother of appellant no.
2 had demanded motorcycle when PW-2 came to take Bidai of the
deceased. Therefore, it is obvious that PW-2 improved his statement
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during course of trial and it is unsafe to place reliance upon the above
stated statement of PW-2.
25. PW-3 is father of the deceased and this witness is
most competent witness on the point of demand of motorcycle. This
witness stated that at the time of solemnization of marriage, appellants
and their family members demanded motorcycle but they got satisfied
on taking television and fan instead of motorcycle and the marriage
was solemnized. The above stated statement of PW-3 goes to show
that when PW-3 agreed to give television and fan in place of
motorcycle, the appellants and their family members got satisfied with
the aforesaid articles and they did not make demand of motorcycle
thereafter. However, PW-3, further, claimed that in the month of
March 1993 at the time of solemnization of Duragman, appellant no. 2
demanded motorcycle but he expressed his inability to give
motorcycle. However, PW-3 has, nowhere, claimed in his statement
that on his refusal to give motorcycle at the time of solemnization of
Duragman, the appellant no. 2 or his family members created any
trouble in solemnization of Duragman. PW-3, further, claimed that in
the month of April 1993, appellant no. 1 Balmukund Pandey (since
deceased) participated in Sataisa and at that time he told that deceased
would not be sent to the house of PW-3 unless the demand of
motorcycle is fulfilled. According to this witness, at the time of
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Duragman, it was appellant no. 2 alone who made demand of
motorcycle. PW-3 has, nowhere, stated that except at the time of
solemnization of marriage and Gauna, on any other subsequent stage
the appellant no. 2 had demanded motorcycle.
26. PW-5 Awadh Kishore Pandey stated that in the
month of June/July 1993 he had gone to the house of in-laws of the
deceased to take her Bidai and at that time both the appellants and
parents of appellant no. 2 said that deceased would not be sent till
fulfilment of demand of motorcycle. This witness, further, claimed
that on the occasion of Sataisa when appellant no. 1 (since deceased)
came to participate in the aforesaid occasion, the appellant no. 1
(since deceased) disclosed that appellant no. 2 was not ready to forego
his demand of motorcycle. This witness admitted in his examination
in chief itself that in the month of June/July, 1993 he had gone to the
house of appellants to take Bidai of deceased but PW-3 had admitted
that PW-5 had gone to the house of appellants to take Bidai of
deceased on the occasion of Sataisa which was going to be performed
in the month of April, 1993. Therefore, it appears that in course of
trial PW-5 developed this story that the date of Sataisa was refixed in
the month of June/July, 1993. However, the attention of this witness
was drawn towards his previous statement and this witness stated that
he had stated before the police that appellant no. 1 (since deceased)
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disclosed that appellant no. 2 was adamant to take motorcycle in
dowry. However, PW-7 denied that PW-5 had not made such
statement before him.
27. Apart from the above stated oral evidences,
prosecution has proved Ext. 2 series, two letters said to be written by
the deceased to her family members prior to the alleged occurrence to
prove the demand of dowry as well as factum of torturing.
28. Perusal of Ext. 2 goes to show that aforesaid letter
was written on 21.05.1993 and similarly, perusal of Ext. 2/1 goes to
show that aforesaid letter was written on 16.04.1994. PW-3 claimed
that both the aforesaid letters are in the handwriting of deceased and
PW-3 claimed to have identified the handwriting of the deceased.
PW-3 also claimed that deceased had passed out Vidya Vinodni
examination and she was a literate lady. Although, the defence
challenged the aforesaid claim of prosecution and took stand that
deceased was an illiterate lady and she had not written any letter but
there is nothing on the record to form an opinion that the deceased
was an illiterate lady.
29. It is an admitted position that alongwith the aforesaid
two letters, two envelops were also produced by the prosecution
before the trial court. The handwriting on the envelops are quite
different from the handwriting of the above stated two letters. PW-3
Patna High Court CR. APP (DB) No.48 of 1995 dt.26-10-2018
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claimed that photostat copy of aforesaid letters and envelops were
given to PW-7 on 27.04.1994 and PW-7 admitted this fact that on
27.04.1994 PW-3 handed over two letters to him but he wrongly
mentioned in the case diary that two inland letters were handed over
to him. Submission on behalf of the appellants is that the aforesaid
admission of PW-7 creates doubt about the genuineness of Ext. 2
series and it appears that subsequently, the inland letters were
removed from the police record and in place of inland letters, these
forged letters were placed on record.
30. PW-3 has admitted in his cross examination that
deceased remained at her matrimonial home from 21.05.1993 to
August 1993. The aforesaid admission of PW-3 goes to show that
deceased reached at her matrimonial home on 21.05.1993. Ext. 2 goes
to show that on 21.05.1993 the letter was written meaning thereby that
allegedly deceased wrote Ext. 2 on the day of reaching her at her
matrimonial home but in the aforesaid letter (Ext. 2), it has, nowhere,
mentioned that she reached at her matrimonial home safely on the
same day. Therefore, the aforesaid circumstance creates doubt about
the claim of PW-3 that deceased remained at her matrimonial home
from 21.05.1993 to August 1993 and also creates doubt about the
genuineness of Ext. 2. Similarly, Ext. 2/1 goes to show that aforesaid
letter was written on 16.04.1994 i.e. a couple of days before the
Patna High Court CR. APP (DB) No.48 of 1995 dt.26-10-2018
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alleged occurrence and admittedly, the envelop of the aforesaid letter
contains a different handwriting and, therefore, the genuineness of the
aforesaid Ext. 2/1 also appears to be doubtful.
31. PW-2 and other material witnesses although claimed
that deceased was subjected to cruelty due to non fulfilment of illegal
demand of motorcycle but on the point of demand of motorcycle the
evidence adduced on behalf of the prosecution appears to be doubtful
and, therefore, we are of the opinion that prosecution could not
succeed to prove the fact of demand of motorcycle. Moreover, the
learned trial court acquitted the appellants of the charge framed under
Section 4 of D.P. Act and, therefore, it is established that prosecution
could not succeed to prove the charge of making demand of dowry by
the appellants.
32. As we have already stated that Ext. 2 series appear to
be doubtful and except the omnibus allegation of torturing, there is no
any other evidence to show that deceased was subjected to cruelty by
the appellants and her in-laws soon before her death in connection
with demand of dowry. Therefore, we are of the view that prosecution
failed to prove the fact of demand of dowry as well as allegation of
torturing on deceased by the appellants.
33. No doubt, deceased died within seven years of her
marriage in other than normal circumstances but other important
Patna High Court CR. APP (DB) No.48 of 1995 dt.26-10-2018
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ingredients of Section 304-B of the Indian Penal Code could not be
proved by the prosecution and, therefore, in our view, the appellants
could not have been convicted for the offences punishable under
Section 304-B/34 of the Indian Penal Code and when the prosecution
failed to prove charges under Section 304-B/34 of the Indian Penal
Code against the appellants, the appellants could not have also been
convicted for the offence punishable under Section 201 of the Indian
Penal Code. Furthermore, we have already held that prosecution could
not succeed to prove that deceased was subjected to cruelty in
connection with her marriage and, therefore, the conviction of
appellants under Section 498A of the I.P.C. was also not in
accordance with law.
34. Apart from the above stated infirmities of the
prosecution case, we would like to note here that no question
regarding the letters (Ext. 2 series) was asked from the appellant no. 2
when his statement under Section 313 of Cr.P.C. was recorded.
Therefore, it is apparent that appellant could not get any opportunity
to explain the genuineness of the aforesaid letters. Therefore, we are
of the opinion that serious prejudice has been caused to appellant no.
2 and the impugned judgment of conviction and sentence order can
not sustain in the eye of law.
35. On the basis of aforesaid discussions, this criminal
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appeal is allowed and accordingly, the impugned judgment of
conviction and sentence order is, hereby, set aside and accordingly,
the appellant no. 2, namely, Anil Pandey is acquitted of the charges.
He is on bail. He is discharged from the liabilities of his bail bonds.
36. Copy of first and last page of this judgment be
handed over to learned Amicus Curiae for needful.
(Hemant Kumar Srivastava, J)
(Rajendra Kumar Mishra, J)
SHAHZAD/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 01.11.2018
Transmission 01.11.2018
Date
