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Ram Swaroop Mahto @ Ram Swarup … vs The State Of Bihar on 7 January, 2020

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1489 of 2019
Arising Out of PS. Case No.-117 Year-2007 Thana- LAKHISARAI District- Lakhisarai

Ram Swaroop Mahto @ Ram Swarup Mahto Son of Late Mishri Mahto @
Misree Mahto Resident of Village – Ward No. 22, Pachna Road, Near – Bharat
Mata, Kuil Basti, P.S.- Lakhisarai, Distt – Lakhisarai.

… … Appellant/s
Versus

1. The State of Bihar

2. Upendra Mahto Son of Ram Bilash Mahto Resident of Village – Sarai
Padauli, P.S.- Bhagwanpur, Distt – Siwan.

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Pankj Kumar Sinha, Advocate
Mr.Rabi Bhushan, Advocate
Ms. Rakhi Kumari, Advocate
For the Respondent/s : Mr.Ajay Mishra, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date : 07-01-2020
Heard Mr. Pankaj Kumar Sinha, learned counsel for the

appellant and Mr. Ajay Mishra, learned Additional Public

Prosecutor for the State.

2. This appeal under the proviso to Section 372 of the

Code of Criminal Procedure Code ( for short ‘Cr.P.C’) has been

filed by the appellant challenging the judgment dated

25.11.2019 passed by the Fast Track Court no. II, Lakhisarai in

Sessions Trial No. 15 of 2014 whereby the respondent no. 2 has
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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been acquitted from the charges under Sections 304B and 498A

of the Indian Penal Code (for short ‘IPC’)

3. Initially, the complainant filed Complaint Case No. 200

of 2006 in the Court of Chief Judicial Magistrate, Lakhisarai on

02.06.2016 wherein he had stated that his daughter namely,

Anita Kumari was married to the respondent no. 2 about four

years ago. She was kept well for about an year in her

matrimonial home. Thereafter a demand of Rs. 50,000/- in cash

and a motorcycle was made from her by her husband, father-in-

law, mother-in-law, brother-in-law and sister-in-law. She was

being subjected to cruelty by them in various ways due to non-

fulfillment of the aforesaid demand. When he received

information in this regard, he brought back his daughter on

01.04.2015. Subsequently, his son-in-law, Samdhi and the elder

brother of his son-in-law one Mukesh Mahto came to his house

and requested him for performing her ‘vidai’. They assured that

his daughter would not be subjected to cruelty in future in her

matrimonial home. Thereafter, on 01.04.2006, he sent his

daughter to her matrimonial home. Later on, he came to know

that on 25.05.2006 his daughter was taken to Maratha Nagar in

Surat (Gujarat) and had been killed and her body was disposed

off. He has further stated in the complaint that on enquiry he
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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came to know that his son-in-law was working in a factory at

Maratha Nagar in Surat (Gujarat) where he had taken his

daughter but when he went to his quarter he could not find

anyone present there. On enquiry, he came to know that his

daughter was being subjected to cruelty in various ways at

Maratha Nagar in Surat (Gujarat) and was killed about one and a

half months ago. In this regard, he informed Pandeysar Police

Station but the police refused to register FIR whereafter he came

back to Lakhisarai and informed the police. The Lakhisarai

police also refused to register FIR and advised him to file

complaint before the Court.

4. The said complaint filed under Section 200 of the Code

of Criminal Procedure was referred to the police for

investigation by the learned Chief Judicial Magistrate,

Lakhisarai in exercise of powers conferred under Section 156(3)

of the Cr.P.C pursuant to which Lakhisarai Police Station Case

No. 117 dated 17.03.2007 was registered under Sections 304B

and 201 of the Indian Penal Code against respondent no. 2

Upendra Mahto, his father Ram Bilash Mahto, brother Mukesh

Mahto, mother Sodhni Devi, sister Munni Devi and wife of

Mukesh Mahto.

5. Upon completion of investigation, the Investigating
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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Officer submitted his report under section 173(2) of the Cr.P.C

on 30.09.2019.

6. A perusal of the police report would show that it was

the respondent no. 2 alone who was sent up for trial for the

offence punishable under sections 304B of the IPC.

7. The other accused persons, who are all relatives of the

respondent no. 2 were found innocent during investigation.

Thus, they were not sent up for trial.

8. The police report submitted by the Investigating

Officer would further reflect that in course of investigation it

was found that on the alleged date on which the daughter of the

appellant died, the respondent no. 2 had gone to factory in

discharge of his duty and when he came back he found that his

wife had committed suicide by hanging. He informed the

Pandeysar police station in this regard whereafter, the police

arrived at the place of occurrence and an unnatural death case

vide Pandeysar Police Station U.D. Case No. 39 of 2006 dated

24.04.2006 was registered on the basis of the statement of the

respondent no. 2.

9. Upon receipt of the police report, the learned Chief

Judicial Magistrate took cognizance of the offence and

committed the case to the court of sessions for trial.
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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10. The trial court framed charges under Sections 304 B

and 498A of the Indian Penal Code against the respondent no. 2.

11. Since the respondent no. 2 did not admit his guilt, the

trial commenced.

12. During trial, the prosecution examined P.W. 1 Gayatri

Devi, P.W. 2 Kunti Devi, P.W. 3 Dhaneshwar Tanti, P.W 4

Sanjay Mahto, P.W 5 Ramswaroop Mahto and P.W. 6 Mukesh

Mahto.

13. After the prosecution case was closed, the statement

of the respondent no. 2 was recorded under Section 313 of the

Cr.P.C wherein he pleaded his innocence.

14. However, the respondent no. 2 did not examine any

witnesses in support of his defence.

15. After the defence evidence was closed, arguments

were advanced on behalf of the parties and vide impugned

judgment dated 25.11.2019, the trial court acquitted the

respondent giving him benefit of doubt.

16. Mr. Pankaj Kumar Sinha, learned counsel appearing

for the appellant submitted that the trial Court failed to

appreciate the evidence on record. He contended that the

witnesses examined in support of the charges are reliable and

have supported the prosecution case.

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17. According to him, the witnesses are consistent on the

point of alleged killing of the deceased for non-fulfillment of

demand of dowry. He has urged that since the death of the

daughter of the appellant had admittedly taken place in other

than natural circumstances within seven years of marriage, the

trial court ought to have held the respondent no. 2 guilty of the

charges. He contended that the impugned judgment is perverse

and hence fit to be set aside.

18. On the other hand, Mr. Ajay Mishra, learned counsel

appearing for the State submitted that the impugned judgment

passed by the trial court does not suffer from any illegality. The

trial court has considered and appreciated the materials on

record properly and has given cogent reasons for arriving at the

conclusion that the prosecution failed to prove the case beyond

reasonable doubt. He submitted that in the instant case, the place

of occurrence falls within the local jurisdiction at Surat in the

State of Gujarat. In that view of the matter, the court at

Lakhisarai in the State of Bihar lacked the territorial jurisdiction

to hold the trial. That apart, the evidences led on behalf of the

prosecution are not at all reliable. The prosecution witness no. 6

has himself admitted that the body of the deceased was

recovered by the police and in this regard an information was
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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given to the local police at Surat in Gujarat by the respondent

no. 2 and the local police at Surat in Gujarat had registered an

unnatural death case.

19. He contended that there is nothing to suggest that

soon before death the victim was subjected to cruelty for non-

fulfillment of dowry. He argued that in view of the inconsistent

and unreliable evidence led on behalf of the prosecution, the

trial court rightly gave benefit of doubt to the accused and

acquitted him from the charges.

20. We have heard the learned counsel for the parties and

carefully perused the materials on record as also the certified

copy of the FIR, chargesheet and deposition of witnesses

supplied by the learned counsel for the appellant during

argument.

21. P.W. 5 Ramswaroop Mahto is the informant of the

case. He has stated in his deposition that on 25.05.2006 he

received information from his Nanihal that his daughter had

died. Thereafter, he went to Surat and visited Pandeypur Police

Station. The police officer present there said that he will give

him documents relating to death of his daughter after few days.

Though he stayed for 2-4 days, no document was given to him

thereafter, he went to the police station but no case was
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registered. Hence a complaint case was filed in the Court. He

has reiterated the allegations made in the complaint in his

examination-in-chief.

22. In cross-examination he has stated that in the month

of ‘Baisakh’ in the year 2003 his daughter was married. She

went to her Sasural and stayed there for 3-4 months. Thereafter,

she came back to her Naihar and after 15-20 days she was taken

back to her matrimonial home where she stayed for about 5-6

months. Thereafter, she again came back to her Naihar and

stayed there for about one and a half month. Thereafter, her

‘Bidai’ was performed and she was taken to Sadikpur, Barh and

after a day she went to Surat in Gujarat. She stayed at Surat for

about one and a half year. He admitted that he did not visit Surat

during her life time. He stated that he used to talk with his

daughter on mobile phone of son and daughter of one Kapil. On

enquiry he said that he does not know either the mobile number

of his daughter or the mobile number on which he used to

receive the call. On further cross-examination he contended that

his daughter was living in the house of one Dilip Mahto on rent.

He has stated that Daho Mahto is his maternal uncle in relation

and his native place is Kanhaipur. When he went to Surat he met

Daho Mahto who disclosed that his daughter had died about 10
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days ago due to hanging. He admitted that in the complaint

Daho Mahto was not made a witness. He denied the defence

suggestion that deliberately Daho Mahto was not impleaded as a

witness in the complaint.

23. He has further admitted in cross-examination that at

Surat the respondent no. 2 Upendra Mahto had performed the

last rites of his daughter. He further admitted that a police case

was registered there and the police had taken the body of his

daughter to police station. He has admitted that he is not a

witness to the torture being meted out upon his daughter. He

contended that his daughter was subjected to cruelty at

Sadikpur, Barh but she died at Surat. He has further admitted

that no complaint was ever made to the police or the court with

regard to the alleged torture upon his daughter. On further cross-

examination he has admitted that his statement was never

recorded by the police during investigation. He has denied the

defence suggestion that he has falsely deposed before the Court.

24. P.W. 2 Kunti Devi is the wife of the informant and

mother of the deceased. She is not a witness to the occurrence.

She has supported part of the complaint in her examination-in-

chief wherein allegation of demand of Rs. 50,000/- in cash and a

motorcycle was made and for non-fulfillment of the same her
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daughter was being subjected to cruelty. She has stated that after

‘Bidai’ her daughter was taken to Surat where she was killed.

She came to know about the alleged killing from the neighbours

of her son-in-law at Maratha Nagar, Surat (Gujarat).

25. In cross-examination she has stated that after ‘Bidai’

her daughter was taken to Sadikpur, Barh and from there to

Surat where she was killed. The information regarding her death

was received after 20-25 days whereafter she along with her

husband went to Surat and stayed there for eight days. She went

to the house at Maratha Nagar mohalla in Surat where her

daughter along with her husband was living but the house was

locked. One resident of village Kanhaipur had shown them the

house at Maratha Nagar in which her daughter and son-in-law

lived. It was the same person who disclosed that her daughter

was killed. She stated that she does not know the name of that

person of village Kanhaepur. She has further stated that she

went to the police station at Surat but the police did not disclose

the address of her daughter. She expressed her unawareness

about the fact that at Surat a case regarding unnatural death of

her daughter was registered. She also expressed her

unawareness about the fact that the police at Surat had found

that her son-in-law was innocent. She denied the defence
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suggestion that when her daughter died her son-in-law was on

duty in a factory where he worked. She also denied the defence

suggestion that when her daughter had died the police had come

and had entered into the room after breaking open the main

door. She admitted that the police had never recorded her

statement during investigation.

26. P.W. 4 Sanjay Mahto is the brother of the appellant. In

his examination-in-chief he has stated that after his niece was

taken to Surat she died. He stated that he does not know the

exact date on which she died.

27. In cross-examination he admitted that no information

was given even to the police or the court earlier in respect of

cruelty being meted out upon the deceased in her Sasural. He

further stated that he came to know about the death of his niece

from his cousin (mamera bhai) Dilip Mahto a resident of village

Kanhaipur but he did not disclose as to how she died. The

information about death was received two days after her death.

He also admitted that the officer of administration had come

from Surat who disclosed about the death of his niece. His

brother’s statement was recorded by them. He further admitted

that his statement was never recorded by any police officer

during investigation. He denied the defence suggestion that he
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had falsely deposed before the court.

28. P.W. 1 and 3 are neighbours of the informant. P.W. 1

Gayatri Devi has admitted in cross-examination that she never

visited Surat. She has also admitted that in her presence no

demand of dowry was ever made. She denied the defence

suggestion that she had deposed before the court at the instance

of the appellant. However, she stated that she has deposed on the

basis of hulla heard in this regard.

29. P.W. 3 is also a hearsay witness. In cross-examination

he admitted that he works together with the brother of the

appellant whose house is adjacent to his house. He also admitted

that he had not stated before the police that from whom he came

to know about the factum of cruelty upon the daughter of the

informant or the demand of dowry from her or her death. He

denied the defence suggestion that he has made a false statement

before the court. He has also denied the defence suggestion that

he had not heard anything from anyone as stated by him before

the Court.

30. P.W. 6 Mukesh Mahto has stated that the respondent

no. 2 was living in the house of one Mithun Mahto at Surat

where his wife had died. He saw her body lying when he came

back from duty. He has further stated in his examination-in-chief
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that the respondent no. 2 was on duty with him on the date on

which his wife died. In cross-examination he has stated that

there are four rooms in the house of Mithun Mahto. He had

taken three rooms on rent and in one room he himself was

living. He has admitted that on the date of death of the daughter

of the informant he had come back at his house at around 08-

8.30 p.m and prior to him the respondent no. 2 and the police

had already arrived. He admitted that the police took the body of

the deceased to the hospital. He also admitted that the

respondent no. 2 was not arrested by the police. He has further

stated that the police had taken his statement at Maratha Nagar,

Surat (Gujarat).

31. Upon scrutiny of the deposition of witnesses, we find

that there is no eye witness to the death of the deceased. All the

witnesses examined on behalf of the prosecution during trial are

hearsay. The informant (PW-5), his wife (PW-2) and his brother

(PW-4) have admitted during cross-examination that their

statements were never recorded by the police during

investigation. That would mean that they were examined as a

witness for the first time during trial. It is surprising that if they

were not examined by the police during investigation as to how

they were cited as witness in the charge sheet.
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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32. The investigating officer of the case has not been

examined during trial. The non-examination of the

investigating officer has seriously prejudiced the case of the

prosecution. It would be evident from the trend of evidence

that immediately after death of the deceased, an information

was given to the local police of Pandesar Police Station at

Surat, Gujarat. The police as well as the respondent no.2 had

arrived at the place of occurrence and the body of the

deceased was taken to the police station as well as the local

hospital. It would also be evident from the evidence of the

witness that an unnatural death case vide Pandesar Police

Station U.D. Case No.39 of 2006 dated 20.04.2006 was

registered on the basis of the statement of the respondent

no.2. It is not known what happened during inquiry in the

unnatural death case reported to the police. It is also not

known as to what was the cause of death of the deceased, as

the postmortem examination report has also not been brought

on record. The withholdment of these important documents

by the prosecution casts a serious doubt on the prosecution

case.

33. The prosecution has also failed to examine the

doctor who had conducted the postmortem examination on
Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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the body of the deceased.

34. We further find that there is no consistency in the

evidence of the prosecution witnesses examined during trial.

The death of the deceased had taken place on 24.04.2006 but

the complaint was filed in the court of Chief Judicial

Magistrate, Lakhisarai on 02.06.2016. The informant (PW-5)

has stated in his deposition that he received information about

death of his daughter on 25.05.2006 from his nanihal. His

wife Kunti Devi (PW-2) has stated in her deposition that the

information regarding the death of the deceased was received

after 20-25 days of the occurrence whereafter she along with

her husband went to Surat. However, the brother of the

informant PW-4 Sanjay Mahto has admitted in cross

examination that he came to know about the death of his niece

from his cousin Dilip Mahto after two days of her death. He

also admitted that the officer of administration had come from

Surat would disclose about death of his niece and his

brother’s statement was recorded by them.

35. Thus, we find that the informant and his wife have

contradicted materially by the prosecution witness no.4 on the

point of knowledge about death of the deceased and recording

of the statement of the informant.

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36. If PW-4 is to be believed, then it is not known as to

why the complaint was filed by the informant after more than

a month from the date of knowledge of the death of the

deceased.

37. We further find that the informant has stated that he

received information about death of his daughter from his

nanihal whereas PW-4 has stated that the information was

given by administrative officers who had come from Surat,

Gujarat after two days of the occurrence.

38. When we look to the deposition of the informant,

we find that he has contradicted himself also in material

particular on the point of knowledge about death of his

daughter. In chief, he has stated that on 25.05.2006, he

received information from his nanihal that his daughter has

died and, thereafter, he went to Surat. However, in cross-

examination, he admitted that when he went to Surat, he met

Daho Mahto, who disclosed that his daughter died about ten

days ago due to hanging. He has also admitted that he never

visited Surat during lifetime of his daughter. If he had met

Daho Mahto within ten days of death of his daughter at Surat,

it is unbelievable that he received information about the death

on 25.05.2006 when the death itself had taken place on
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24.04.2006.

39. The informant has deposed that his daughter was

living at Surat in the house of one Dilip Mahto on rent

whereas PW-6 Mukesh Mahto has stated that respondent no.2

with his wife was living in his house of one Mithun Mahto at

Surat where he saw her dead body lying when he came back

from duty.

40. Further, PW-4 has stated that Dilip Mahto is his

mamera bhai, as noted above, PW-4 is the brother of the

informant.

41. Thus, it would appear that the informant has tried to

develop the case by saying that the alleged victim had died in

the house of Dilip Mahto, but he has been contradicted by

PW-6 Mukesh Mahto, who has said that the deceased was

living together with her husband in the house of Mithun

Mahto.

42. Apparently, the informant and his wife are not a

truthful witness. They are absolutely unreliable witness.

43. Moreover, neither Mithun Mahto nor Dilip Mahto

nor Daho Mahto has been made witness in the present case.

Their non-examination has also prejudiced the case of the

defence.

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44. We have seen PW-1 and 3 are neighbours of the

informant. They never visited Surat. They admitted that in

their presence no demand of dowry was ever made. They

have simply stated that they heard about the death of daughter

of the informant. Their evidence is of no help to the

prosecution. Similarly, PW-4 has not stated anything in his

examination in chief regarding the dowry death. He has also

admitted that he never visited Surat. He has admitted that no

information was given to the police or the court earlier in

respect of the cruelty being meted out upon the deceased in

her sasural. His evidence is also of no help to the prosecution.

45. The other witness examined on behalf of the

prosecution is PW-6 Mukesh Mahto. In his deposition, he has

stated that he was also living in the house of one Mithun

Mahto in whose house the respondent no.2 together with his

wife used to live. He has also stated that on the alleged date of

occurrence, the respondent no.2 was on duty together with

him at his work place. He has stated that he has not alleged

that it was a case of dowry death. He has stated that after

death the police had arrived and the respondent no.2 was also

present. He has stated that his statement was taken by the

police at Maratha Nagar, Surat, Gujarat.

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46. Thus, the evidence of PW-6 does not incriminate

the respondent no.2 in any manner rather the same goes to

prove his innocence.

47. Apart from PW-6, there is no witness of the place

of occurrence. Thus, from the evidence on record, it would be

evident that no reliance can be placed on the case of

prosecution.

48. We are of the opinion that the trial court rightly

came to the conclusion that the prosecution had failed in

proving his case beyond reasonable doubt and acquitted the

respondent no.2 from the charges.

49. It is well settled position in law that in case of

acquittal, there is double presumption in favour of the

accused. Firstly, the presumption is available to him under the

fundamental principle of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved

guilty by a competent court of law. Secondly, the accused

having secured his acquittal, the presumption of his innocence

is further re-enforced by the trial court.

50. In view of the evidence on record, as discussed

above, and the fundamental principle of law in case of

acquittal, we see no merit in this appeal.

Patna High Court CR. APP (DB) No.1489 of 2019 dt.07-01-2020
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51. The appeal is dismissed, accordingly.

(Ashwani Kumar Singh, J)

( Partha Sarthy, J)

Prakash/-

AFR/NAFR
CAV DATE
Uploading Date 16.01.2020
Transmission Date 16.01.2020

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