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
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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
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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
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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.
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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
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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.
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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
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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.
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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