IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 953 of 2013
Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur
Ajit Poddar son of Shankar Poddar, resident of Village- (Navtolia)
Bharanipur, Vishpuriya, Naya Tola, Police Station- Kharik, District-
Bhagalpur.
… … Appellant
Versus
The State of Bihar
… … Respondent
with
CRIMINAL APPEAL (DB) No. 874 of 2013
Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur
1. Shankar Poddar, son of Late Bhuvneshwar Poddar.
2. Mina Devi wife of Shankar Poddar
Both are resident of Village Bhavanpura Naya Tola, Police Station
Kharik, District – Bhagalpur.
… … Appellants
Versus
The State of Bihar
… … Respondent
with
CRIMINAL APPEAL (DB) No. 918 of 2013
Arising Out of PS. Case No.-50 Year-2011 Thana- Kharik District- Bhagalpur
Sujeet Poddar, Son of Shankar Poddar, resident of Village- Bhavanipur
Vishpuriya, Naya Tola, Police Station- Kharik, District- Bhagalpur.
… … Appellant
Versus
The State of Bihar
… … Respondent
Appearance :
(In CRIMINAL APPEAL (DB) No. 953 of 2013)
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
2/25
with
(In CRIMINAL APPEAL (DB) No. 874 of 2013)
with
(In CRIMINAL APPEAL (DB) No. 918 of 2013)
For the Appellants : Mr. Ajit Kumar Ojha, Advocate
Ms. Nutan Mishra, Advocate
Mr. Pranjal Kumar, Advocate
For the Resp./State : Mr. Ajay Mishra, A.P.P.
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 16-05-2019
Appellants in aforesaid three appeals were tried
together and by common judgment, they were convicted and
sentenced in Sessions Trial No. 692 of 2011/Sessions Trial No.
692A of 2011 and as such, all the three appeals were taken up
together under the heading “For Hearing” and are being disposed
of by this common judgment.
2. All the appellants by judgment dated 06-08-2013
were held guilty and convicted under Sections 304B/Section120B and
Section201 of the Indian Penal Code, 1860 (hereinafter referred to as
‘SectionI.P.C.’). By order dated 20-08-2013, Ajit Poddar (appellant in
Cr.App.DB No. 953/13) under Sections 304B r/w 120B of the
SectionI.P.C. has been sentenced to undergo rigorous imprisonment for
life and to pay a fine of Rs. 5,000/- (five thousand). In case of
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
3/25
default in payment of fine, he was directed to further undergo
rigorous imprisonment for six months. Other appellants i.e.
Shankar Poddar, Mina Devi (both appellants in Cr.App.DB No.
874/13) and Sujit Poddar (sole appellant in Cr.App.DB No.
918/13) under Sections 304B/Section120B of the I.P.C. by the same
order i.e. order dated 20-08-2013 have been directed to undergo
rigorous imprisonment for 10 years and to pay a fine of Rs.
5,000/- (five thousand) each. In case of default in payment of
fine, they were directed to further undergo rigorous imprisonment
for six months. By the same order i.e. order dated 20-08-2013,
under Section 201 of the I.P.C., appellants in aforesaid three
appeals were sentenced to undergo rigorous imprisonment for
three years and to pay a fine of Rs. 5,000/- (five thousand) each.
In case of default in payment of fine, they were directed to
further undergo rigorous imprisonment for six months. The
judgment of conviction and sentence has been passed by Sri
Devendra Prasad Keshri, learned 4th Additional Sessions Judge,
Naugachia, District – Bhagalpur (hereinafter referred to as the
‘Trial Judge’) in Sessions Trial No. 692/2011 Sessions Trial No.
692A/2011 (arising out of Kharik P.S. Case No. 50 of 2011).
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
4/25
3. Short fact of the case is that on 22-02-2010, a
complaint petition was filed, vide Complaint Case No. 102 of
2011, by Sri Kailash Poddar (P.W.3) arraying aforesaid four
appellants and one Amit Poddar as accused. In the complaint
petition, it was alleged that complainant’s daughter namely
Mamta Devi (deceased) was married on 27th February, 2009 with
Ajit Poddar (appellant in Cr.App.DB No. 953/13). The marriage
was solemnized under the Hindu rituals and after the marriage,
the complainant’s daughter went to her in-laws’ house and stayed
for about five days. Subsequently, with her husband she returned
back to her parental house. Again after 15 days, she alongwith
her husband went to her in-laws house, where complainant’s
daughter remained continuously for one year. During the said
period, the daughter of the complainant was administered torture
and she was asked to bring Rs. 1,00,000/- (one lack), colour
T.V. and motorcycle from her parents. The complainant’s
daughter was regularly telling that in her marriage, her parents
had already spent huge amount and gifted articles of several
lacks and it was not possible to fulfill the demand. Due to said
reason, the complainant’s daughter was regularly being tortured
by her husband, nsoj (younger brother of her husband), mother-
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
5/25
in-law, father-in-law etc. and she was not being provided proper
food and clothes and they were also assaulting her. The
complainant disclosed that such information was being sent by his
daughter to her parents and other relatives and thereafter, the
complainant with his father-in-law and brother-in-law went to the
house of the accused on 02-12-2010 and tried to persuade them
not to do the same thing, but the accused persons, in presence of
those persons, had reiterated regarding the demand of dowry.
When all the persuasion went in vain, the complainant’s daughter
namely Mamta Devi told that the accused persons were planning
to kill her due to non-fulfillment of demand of dowry and on
number of occasions, she was assaulted. At the time, while the
daughter of complainant was returning back weepingly, she had
explained all these things before the neighbours. Since the
complainant was having some urgent work, he with his other
relatives returned back. On 15-01-2011, while the complainant
returned back, his daughter telephonically informed him
regarding assault and torture given by Sujit Poddar (appellant in
Cr.App.DB No. 918/13). On 13th February, 2011, Ajit Poddar
(appellant in Cr.App.DB No. 953/13) over mobile had threatened
the complainant that if the demand of dowry is not fulfilled, his
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
6/25
daughter will be killed and her dead body will be thrown and he
(Ajit Poddar) would solemnise second marriage. The complainant
again tried to persuade him, but on 14 th February, 2011 at 4:00
hrs. in the evening, all the accused persons conspiring with each
other by sprinkling kerosene oil on the daughter of complainant
ignited her and she was done to death by burn injury and with a
view to conceal the evidence, the dead body of Mamta Devi was
wrapped with sand filled bag and it was thrown in Koshi river.
The complainant explained that the said occurrence was seen by
number of persons. The complainant in its complaint petition has
further stated that the complainant was informed by Sujit Poddar
(appellant in Cr.App.DB No. 918/13) through mobile phone and
he (complainant) was threatened that if any case is filed, no one
would be spared. The complainant after getting such information
reached the house of the accused persons, then the neighbours
informed him about the occurrence and accused persons had fled
away from the house. The complainant did not find his daughter
in the house nor he could notice any accused persons in the
house. The complainant thereafter informed local police station
and also senior police officer, however; no case was instituted.
The reason for delay in filing complaint was given that from
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
7/25
15-02-2011 to 21-02-2011, there was strike of Advocates of the
court. The said complaint petition on the same date i.e. on
22-02-2011 was referred to the Kharik Police Station by the
learned Addl. Chief Judicial Magistrate, Naugachia (hereinafter
referred to as ‘A.C.J.M.’) for its institution and investigation under
Section 156(3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘SectionCr.P.C.’). Thereafter, on the basis of
said complaint, on 14-03-2011, a formal F.I.R., vide Kharik P.S.
Case No. 50 of 2011, was registered under Sections
304(B)/Section498(A)/Section201/Section120(B) of the I.P.C. and Sections 3/Section4 of the
Dowry Prohibition Act, 1961 (hereinafter referred to as ‘D.P.Act’)
against all the aforesaid four appellants including one Amit
Poddar, son of Shankar Poddar (appellant-1 in Cr.App.DB No.
874/13).
4. After registering the case, investigation was done
and thereafter, on 21-06-2011 chargesheet was submitted
against Sujit Poddar (appellant in Cr.App.DB No. 918/13)
showing other F.I.R. named accused persons as absconder. After
submission of chargesheet, on 26-06-2011 the learned A.C.J.M.
Naugachia took cognizance of the offence. On 04-07-2011, the
case of all the five F.I.R. named accused was committed to the
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
8/25
court of sessions and it was numbered as Sessions Trial No. 692
of 2011. Thereafter, on 27-09-2011, charge against only
accused namely Sujit Poddar (appellant in Cr.App.DB No.
918/13) was framed under Sections 304(B), Section498A, Section201 and
Section120(B) of the I.P.C. and Sections 3/4 of the D.P. Act and case of
other accused persons was separated. Subsequently, on
09-11-2011 Ajit Poddar (appellant in Cr.App.DB No. 953/13)
surrendered, on 02-01-2012 Mina Devi (appellant-2 in
Cr.App.DB No. 874/13) surrendered and subsequently against
them, charge was framed under Sections 304(B), Section498A, Section201 and
Section120(B) of the I.P.C. and Sections 3/4 of the D.P. Act. Thereafter,
on 21-01-2012 Shankar Poddar (appellant-1 in Cr.App.DB No.
874/13) surrendered and on 21-03-2012 both the trials i.e.
Sessions Trial No. 692/2011 and Sessions Trial No. 692 A/2011
were amalgamated.
5. During the trial, to establish its case on behalf of the
prosecution, altogether five witnesses were examined. Out of five
witnesses, P.W.3 Kailash Poddar is the complainant/informant
and father of the deceased and P.W.2 Dharamshila Devi is the
mother of the deceased. P.W.1 Umesh Yadav and P.W.4
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
9/25
Vedanand Yadav are independent witnesses, whereas P.W.5
Subodh Kumar is the investigating officer of the case.
6. After completion of the prosecution evidence, on
12-04-2013, the accused persons were questioned with
incriminating circumstances and evidences and their statement
under Section 313 of the Cr.P.C. was recorded, in which, they
denied the charges. However, no defence evidence has been
brought on record.
7. Sri Ajit Kumar Ojha, learned counsel appearing on
behalf of the appellants, after placing entire evidence on record,
has argued that the prosecution has miserably failed to establish
the case as of ‘dowry death’, in view of cogent evidence on
record, either regarding demand of dowry or administrating
torture on the deceased just prior to the occurrence. Sri Ojha,
learned counsel for the appellants submits that P.W.1 Umesh
Yadav, who during the evidence has claimed that on hulla, while
he reached near the house of the appellants, he saw smoke
coming from the house and he tried to enter into the house,
which was prevented by the accused persons, but during
investigation, no such fact was disclosed by him. The suggestion
was given to this witness that he had approached the appellants
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
10/25
for demanding an amount of Rs. 5,000/- (five thousand) to say
the truth, however; due to non-fulfillment of such demand, this
witness P.W.1, contrary to the fact disclosed in his statement
recorded under Section 161 of the Cr.P.C., has deposed, as if, he
was eye-witness to the occurrence.
8. Sri Ojha, learned counsel for the appellants has also
argued that it appears that daughter of the
complainant/informant had not died in the house of the
appellants, rather she went missing from the house of the
appellants and subsequently, a false case was instituted, as if,
the appellants by way of sprinkling kerosene oil on deceased has
put her in flame and her dead body was disposed of. Sri Ojha has
argued that it is also improbable that after committing murder of
the daughter of the complainant, one of the accused can inform
the complainant on mobile that they had killed his daughter and
the story of threatening them appears to be not believable. He
has further argued that once the complainant was having
knowledge that dead body was thrown in Koshi river wrapped in a
bag filled with sand, firstly the complainant/informant would have
taken step to find the body in the river or the investigating officer
would have taken such step, but neither the
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
11/25
complainant/informant nor the investigating officer has stated any
fact to the extent of searching the dead body.
9. As per Sri Ajit Kumar Ojha, learned counsel for the
appellants, for holding the appellants guilty for offence under
Section 304(B) of the I.P.C, onus was on the prosecution to
establish that soon before the death, the daughter of
complainant/informant was subjected to cruelty or harassment by
the accused persons regarding demand of dowry, however during
the evidence, it has come, as if, the younger brother of the
husband of the deceased was trying to establish illicit relation
with her. Such fact certainly may not be covered, as torture, due
to non-fulfillment of demand of dowry just before the death. He
further submits that the prosecution has not been able to
establish death of the daughter of the informant and as such, the
learned Trial Judge has incorrectly passed the judgment of
conviction and sentence.
10. Sri Ajay Mishra, learned Addl. Public Prosecutor
opposing the appeals has placed heavy reliance on the evidence
of P.W.1 namely, Umesh Yadav. He submits that Umesh Yadav
(P.W.1) was residing within the jurisdiction of same police station
where accused persons were residing. While he was teaching
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
12/25
children, he heard the gYyk (hulla) and then he reached near the
house of the appellants, where he saw about 25 female had
assembled there. He was informed by them that the daughter of
complainant/informant was put on flame by the accused persons.
This witness has stated that he had seen smoke coming from the
house of the accused and he wanted to enter the house, but he
was prevented by the accused persons. According to Sri Mishra,
learned Addl. Public Prosecutor, the evidence of P.W.1 is itself
sufficient to show that it was a case of dowry death.
11. Sri Mishra, learned A.P.P. further submits that
mother and father of the deceased, who have been examined as
P.W.2 and P.W.3 respectively, have elaborately stated that the
deceased died within seven years of marriage and she was being
regularly tortured due to non-fulfillment of demand of dowry by
the accused persons. He has also referred to evidence of P.W.4,
who is another independent witness, to the extent that marriage
of deceased with Ajit Poddar (appellant in Cr.App.DB No.
953/13) was solemnized two years before the occurrence and she
died in the house of the appellants. Accordingly, Sri Mishra
submits that the judgment of conviction and sentence has rightly
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
13/25
been passed by the learned Trial Judge, which requires no
interference.
12. Besides hearing learned counsel for the parties, we
have examined entire evidence on record, however; before
recording finding, it would be necessary to discuss the evidence,
which has been brought on record.
13. In this case, P.W.1 Umesh Yadav, resident of
village – Vishpuriya, P.S. Kharik, District – Bhagalpur has stated
that on 14-02-2011 at about 04:00 hrs. in the evening, in his
house, while he was teaching some children, he heard hulla and
when he came to know that in the house of Shankar Poddar
(appellant-1 in Cr.App.DB No. 874/13), fire has taken place, then
he went to the house of Shankar Poddar and inside house, he
saw smoke. The daughter-in-law of Shankar Poddar was in flame.
Just opposite the house of the appellant Shankar Poddar (in
Cr.App.DB No. 874/13), about 25 females were present, from
whom, he got information that due to non-fulfillment of demand
of dowry of Rs. One lakh, color T.V. and motorcycle, she was set
on fire. He further stated that Sujit, Ajit and Sumit (all sons of
Shankar Poddar) prevented him from entering the house. He
further stated that alongwith three accused persons, their mother
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
14/25
and father were also there. He further stated that smell of
kerosene oil was coming. He disclosed the name of daughter-in-
law of Shankar Poddar and Mamta Devi (both appellants in
Cr.App.DB No. 874/13), who was married with Ajit Poddar
(appellant in Cr.App.DB No. 953/13). In paragraph-3, in his
evidence, he stated that after seeing those things, he returned
back to his house and after one half hour, one vehicle (gkQ
Mkyk) arrived and thereafter, all the aforesaid accused persons
loaded Mamta Devi (deceased) and went somewhere else. He
further stated in the same paragraph that subsequently he came
to know that injured was not carried to hospital and dead body of
deceased Mamta Devi has not been recovered till date. In
paragraph-5 of his cross-examination, he stated that he was
graduate and he was alone (bachelor) and he was doing private
tuition. Attention of this witness was drawn to his previous
statement recorded under Section 161 of the Cr.P.C. in
paragraph-9 of his cross-examination, this stand was got
contradicted at the time of examination of investigating officer
i.e. P.W.5. in his evidence in paragraph-15 (at page 38-39) that
Umesh Yadav/P.W.1 had not stated that he had seen the
daughter-in-law of Shankar Poddar (Appellant-1 in Cr.App.DB
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
15/25
No. 874/13) while she was burning in flame. This witness
(P.W.1) has also not stated before him (I.O.) that he was
prevented by accused persons in entering the house of the
appellants. The investigating officer further stated that before
him, P.W.1 had not stated that while he returned to his house,
after one and half hour on a vehicle, Mamta (deceased) was
carried by all the accused persons and they disappeared the dead
body. On examination of evidence of investigating officer
(P.W.5), there is no reason to believe that this witness (P.W.1)
can be relied upon.
14. P.W.3 Kailash Poddar (complainant/informant and
father of the deceased) in his evidence has stated that occurrence
had taken place on 14-02-2011 in the evening at 04:00 hrs. He
deposed that he was telephonically informed by Sujit Poddar
(appellant in Cr.App.DB No. 918/13), who is brother of his son-
in-law Ajit Poddar (appellant in Cr.App.DB No. 953/13) that he
with Ajit, Sujit, Amit, Shankar Poddar and his wife Mina Devi all
by way of sprinkling kerosene oil on Mamta Devi had set her on
fire and she was done to death by burn injury and her dead body
was thrown in river. This witness further stated that he was also
threatened by Sujit Poddar (appellant in Cr.App.DB No. 918/13)
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
16/25
not to make any complaint. On getting said information, the
complainant/informant from Delhi straightway came to in-laws
house of his daughter, where he noticed that the door of Shankar
Poddar (A-1 in Cr.App.DB No. 874/13) was locked and he stayed
there for 20-25 minutes, however; he did not see his daughter
and on enquiry, Umesh Yadav (P.W.1) and other neighbours told
him that Shankar Poddar (A-1 in Cr.App.DB No. 874/13), his
wife Mina Devi (A-2 in Cr.App.DB No. 874/13) and others jointly
by way of sprinkling kerosene oil and igniting had killed his
daughter and thrown the dead body in river. He was further
informed by them that his daughter was tortured by the accused
persons. The marriage of his daughter was solemnized on
27-02-2009 with Ajit Poddar (App. in Cr.App.DB No. 953/13),
son of Shankar Poddar (A-1 in Cr.App.DB No. 874/13). In
paragraph-4, he stated that he informed Kharik Police Station
regarding the occurrence, however Darogaji did not lodge case,
then on 18-02-2011 he came to court, but there was strike of
Advocates from 16-02-2011 to 21-02-2011 and as such, on
22-02-2011 he filed a complaint case in Naugachia court, which
was sent to Kharik police station. He identified his signature on
the complaint petition, which was marked as Ext.1. In paragraph-
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
17/25
5, he further stated that before the occurrence, his deceased
daughter was telling that accused persons, due to non-fulfillment
of demand of dowry of Rs. one lack, colour TV and motorcycle,
were assaulting her and torturing her. In paragraph-7 of his
cross-examination, he stated that on 14-02-2011 in the evening
at 06:00 hrs. he got information. The information was given on
mobile of his son. On 15-02-2011 by Vikramshila Train from
Delhi, he proceeded to Bhagalpur. On 16-02-2011 in the night at
09:00 PM, he got down at Bhagalpur, since train was delayed. He
stayed in Bhagalpur itself and thereafter in the morning, he came
to Naugachia and he reached Kharik. Firstly, he went to the
house of Shankar Poddar in Kharik. He went there on foot. It was
about 4:00 PM. He informed his father-in-law, who was residing
in village Puraini, which was about 25 kilometer away from
Kharik, then with his father-in-law, he went to the in-laws house
of his daughter. The name of his father-in-law was Suresh
Poddar (not examined). In paragraph-10 of his cross-
examination, P.W.3 stated that on 17 th February, 2011 from
Kharik Station, he had given telephone call to his father-in-law
Suresh Poddar, with him, he firstly went to the in-laws house of
his daughter and reached at 04:00 PM, where he saw that house
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
18/25
was locked and after inquiring from neighbours, he directly went
to Kharik police station and reached Kharik police station at
05:00 PM and orally informed the police, however case was not
instituted. In paragraph-10 he further accepted that neither oral
nor in writing, he informed S.P. or D.S.P. In paragraph-11 of his
cross-examination, he further stated that regarding information
given by his daughter, reiterating the demand of dowry, he had
never given any information to anyone. In paragraph-12 of his
cross-examination, he stated that he did not try to search the
dead body in Koshi river. In paragraph-14 of his cross-
examination, he denied the suggestion that his daughter died in
Delhi and he has falsely lodged the present case with a view to
extort money.
15. P.W.2 Dharmshila Devi is the mother of the
deceased. She too deposed almost in similar manner like P.W.3,
however in paragraph-3 of her evidence, she stated that one
month prior to the date of occurrence, her daughter had informed
that Sujit Poddar (appellant in Cr.App.DB No. 918/13) younger
brother of husband of her daughter was trying to establish illicit
relation with her daughter, which was being opposed by her and
this was the reason that her daughter was assaulted. In
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
19/25
paragraph-5 of her cross-examination, she stated that she was
residing in Delhi since five year with her husband and her other
family member. In paragraph-8 of her cross-examination, she
stated that her son-in-law Ajit Poddar (appellant in Cr.App.DB
No. 953/13) was having fields and he was agriculturist. Shankar
Poddar (A-1 in Cr.App.DB No. 874/13) was having two bigha of
land. She stated that for about 15 days, her son-in-law stayed at
her house, but he had not demanded anything. Five days after
her daughter stayed in her in-laws house and when she returned,
at that very time also, she did not say about the demand of
dowry. In paragraph-13 of her cross-examination, she stated that
on 14-02-2011, Sujit (App.in Cr.App.DB No. 918/13) over
telephone had informed, however; after getting that information,
she had not initiated any proceeding. In paragraph-18, she
admitted that she was not having any evidence regarding demand
of dowry nor any case was instituted. Attention of this witness
was drawn to her previous statement in paragraph-20 of her
evidence and the investigating officer/P.W.5 in paragraph-14 has
stated that this witness had not stated that Sujit (appellant in
Cr.App.DB No. 918/13) on mobile had informed that he had
sprinkled kerosene oil on her daughter and killed her. In
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
20/25
paragraph-16, he (P.W.5) deposed that she (P.W.2) was not
knowing any neighbour nor she had any talk with any neighbour
of the accused persons, however; P.W.3/her husband in his
evidence has stated that he had inquired regarding the
occurrence and thereafter, he proceeded to police. This witness
(P.W.2) was also given suggestion that the said case was
instituted for extortion of money, which was denied by her.
16. P.W.4 Vedanand Yadav, who is resident of village
Vishpuriya in his evidence has stated that Ajit Poddar (appellant
in Cr.App.DB No. 953/13) was married with the daughter of
complainant/informant Kailash Poddar about two years back from
the date of occurrence and her death had occurred in her in laws
house, however; in paragraph-3 of his cross-examination, he
admitted that he had not seen the occurrence.
17. P.W.5 Subodh Kumar on 14-03-2011 was officer
incharge of Kharik Police Station and he proved the formal F.I.R.
which was marked as Ext.2 and his signature on formal F.I.R.
which was marked as Ext.2/1. He stated that on 14-03-2011 he
had drawn a formal F.I.R. on the basis of Complaint Case No.
102 of 2011. After registering F.I.R., he took up investigation
himself and during investigation, he recorded re-statement of
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
21/25
complainant/informant (P.W.3) and also examined Dharmsheela
Devi (P.W.2) and thereafter, he visited the place of occurrence,
which was the house of Shankar Poddar (A-1 in Cr.App.DB No.
874/13) in the village Vishpuriya (Naugachia). He noticed that on
the main door, there was a lock and accused persons were
absconding. In paragraph-3 of his evidence, he has explained the
place of occurrence. During investigation, he recorded statement
of Umesh Yadav (P.W.1), Police Yadav, Suresh Yadav and
Solanki Devi (all not examined). He also examined Vedanand
Yadav (P.W.4) and Vikash Kumar (not examined). In paragraph-
8 of his cross-examination, he stated that though occurrence had
taken place on 14-02-2011, as stated in complaint petition,
however even after such heinous crime, neither chowkidar nor
any local person had given any information to the police station.
However during investigation, he had not inquired either from
Mukhiya or Sarpanch regarding the occurrence. In paragraph-10
of his cross-examination, he stated that on 14-03-2011, he had
inspected the place of occurrence. The house was not having any
boundary wall, however he had not prepared any seizure list of
any article from the place of occurrence. In paragraph-12 of his
cross-examination, he has stated that regarding torture for
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
22/25
dowry, no complaint was made by the complainant/informant.
While he reached the place of occurrence, on the door of the
house, there was a lock. With the help of neighbours, from the
back door, he entered into the house. In paragraph- 14, 15 and
16 he has stated regarding the fact stated by P.W.2 (Dharmshila
Devi), P.W.1 (Umesh Yadav) and P.W.3 (Kailash Poddar)
respectively in their statement. In paragraph-17 of his cross-
examination, he has admitted that he had not recorded any
statement of either of the accused persons. On examination of
evidence of the investigating officer, it is evident that he had not
bothered even to examine accused persons to ascertain the fact
regarding disposal of the dead body nor he has taken step for
searching the dead body.
18. On examination of aforesaid evidences, it appears
that prosecution has not been able to establish death of daughter
of the complainant/informant, though to this extent, P.W.1 was
introduced, however P.W.1 in his previous statement had not
stated any such fact and during the trial, he developed the story,
as if, he had seen while deceased was burning. The evidence of
P.W.1, in such situation, appears to be not credible.
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
23/25
19. So far as application of Section 304(B) of the
I.P.C., in the facts and circumstances of the present case, is
concerned, we do not find any such material brought on record by
the prosecution. The prosecution has not been able to establish
that just prior to disappearance of the daughter of the
complainant/informant, she was subjected to cruelty due to non-
fulfillment of demand of dowry. Only in a vague manner, it has
been stated that rupees one lack, colour T.V. and motorcycle
were being demanded, however; substantively such evidence has
not been brought on record.
20. In such situation, the Court is of the opinion that
the prosecution has miserably failed to establish its case,
particularly; regarding death of the daughter of the informant due
to non-fulfillment of demand of dowry. The prosecution has also
not given plausible explanation regarding non-lodging of F.I.R.
directly after getting the information of the occurrence. It also
appears to be not believable that once the complainant had got
an information that the dead body of his daughter, with a view to
conceal the evidence, was thrown in Koshi river tying with bag
full of sand, then why any step was not taken to search the dead
body. The evidence of investigating officer is also indicative of the
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
24/25
fact that no step was taken to search the so called dead body of
the daughter of the complainant/informant. Since the evidence of
P.W.1 is not beyond the shadow of doubt, there is difficulty in
coming to the conclusion that the prosecution has proved its case
beyond all reasonable doubt.
21. In view of facts and circumstances, we are of the
considered opinion that the prosecution has not been able to
establish its case beyond all reasonable doubt and as such, by
way of extending benefit of doubt, it is desirable to interfere with
the judgment of conviction and sentence.
22. Accordingly, the judgment of conviction dated
06-08-2013 and order of sentence dated 20-08-2013 passed by
the learned 4th Additional Sessions Judge, Naugachia, District –
Bhagalpur in Sessions Trial No. 692 of 2011/Sessions Trial No.
692A of 2011 (arising out of Kharik P.S. Case No. 50 of 2011)
is, hereby, set aside and all the appellants, in aforesaid three
appeals, are acquitted from all the charges.
23. Since the judgment of conviction and sentence has
been set aside, Ajit Poddar {appellant in Cr.Appeal (DB) No. 953
of 2013}, who is in custody, is directed to be released forthwith,
if not wanted in any other case and Shankar Poddar, Mina Devi
Patna High Court CR. APP (DB) No.953 of 2013 dt. 16-05-2019
25/25
{both appellants in Cr.Appeal (DB) No. 874 of 2013} as well as
Sujit Poddar {sole appellant in Cr.Appeal (DB) No. 918 of 2013},
who are on bail, are discharged from the liability of their bail-
bonds.
24. All the aforesaid three appeals are allowed.
(Rakesh Kumar, J.)
(P.C.Jaiswal, J.): I agree.
( Prakash Chandra Jaiswal, J.)
Anay
AFR/NAFR AFR
CAV DATE 09.04.2019
Uploading Date 16.05.2019
Transmission Date 16.05.2019
