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Anil Pandey vs State Of Bihar on 26 October, 2018

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

22/ 25

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

23/ 25

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

24/ 25

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
Patna High Court CR. APP (DB) No.48 of 1995 dt.26-10-2018

25/ 25

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

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