Raj Kumar Prasad vs The State Of Bihar
2021 Latest Caselaw 4782 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1920 of 2018
    Arising Out of PS. Case No.-105 Year-1996 Thana- BARAULI District- Gopalganj
======================================================

Indradeo Prasad @ Inardeo Prasad @ Inardeo Kushwaha S/o Late Janaki Prasad, R/o Vill.- Jagarnathpur, P.S.- Jamo Bazar, District- Siwan.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

WITH

CRIMINAL APPEAL (SJ) No. 2359 of 2018 Arising Out of PS. Case No.-105 Year-1996 Thana- BARAULI District- Gopalganj ====================================================== Raj Kumar Prasad S/o Late Rajkeshwar Prasad, R/o Vill.- Pet Biraicha, P.S.- Barauli, District- Gopalganj.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 1920 of 2018)

For the Appellant/s : Mr. Jagdish Prasad, Advocate Mr. Naresh Prasad, Advocate For the Respondent/s : Mr. Abhay Kumar, APP (In CRIMINAL APPEAL (SJ) No. 2359 of 2018) For the Appellant/s : Mr. Jagdish Prasad, Advocate Mr. Naresh Prasad, Advocate For the Respondent/s : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 24-09-2021

The appellants, above named, have challenged

their conviction for offences under Sections 304B/34 and Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

201/34 of the Indian Penal Code by judgment dated

05.05.2018 passed by learned Additional Sessions Judge-VIII,

Gopalganj, in Sessions Trial No.334 of 2007, arising out of

Barauli P.S. Case No.105 of 1996. By the impugned order of

sentence of the same date rigorous imprisonment for eight

years along with fine of rupees twenty thousand was awarded

for offence under Section 304B/34 of the Indian Penal Code

and rigorous imprisonment for five years and a fine of rupees

five thousand was awarded for offence under Section 201/34

of the Indian Penal Code. In default of payment of fines six

months simple imprisonment was ordered. The sentences

have been ordered to run concurrently against both the

appellants.

2. The prosecution case as disclosed in the

written report of PW 4 Rajendra Prasad is that his daughter

'S' was married with co-accused Pushpendra Kumar on

27.02.1996. After marriage S. went to her matrimonial house.

16 days thereafter the informant went to meet S. She

complained that her husband Pushpendra, father-in-law

(appellant Raj Kumar Prasad), the mother-in-law and

maternal uncle of Pushpendra i.e., appellant Indradeo Prasad

always torture and they demand a Colour TV and Gold Chain. Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

The informant requested the family members especially

Nageshwari Devi, the mother-in-law, but the family members

threatened that if Colour TV and Gold Chain would not be

provided S. would have to face the consequences. One month

thereafter the informant came to the matrimonial house of her

daughter, she again made complaint of torture for non-

fulfillment of the aforesaid demand. She further disclosed that

the accused threatened her to be killed and Pushpendra would

get married with another lady. On 11.05.1996 Rama Shankar

Prasad (not examined) and Mr. Ashok Sahu (not examined) of

the matrimonial village informed that S has been killed by her

matrimonial relations and the dead body got cremated.

Thereafter, the informant came to the matrimonial village of S

and the people informed that S was done to death by the

family members. Thereafter, the informant went to adjoining

village Jagarnathpur i.e., the village of appellant Indradeo

Prasad because Indradeo Prasad was mediator in the marriage

and on the next day the matter was reported to the police. The

written report is Exhibit-1 and the formal FIR is Exhibit-2.

3. After investigation the police submitted charge

sheet against the appellants and others.

4. The husband of the deceased was found a Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

juvenile along with his sister and proceeding against them

was conducted before the Juvenile Justice Board, Gopalganj.

The Board giving benefit of doubt, acquitted to the husband

and sister-in-law of the deceased.

During trial prosecution examined altogether

eight witnesses. PW 1 Shiv Prasad Sah of the village of

occurrence deposed that he heard about death of the daughter-

in-law of appellant Raj Kumar. He went there and found the

dead body. The daughter-in-law of appellant Raj Kumar died

of illness. Thereafter, her parents were informed. The father

and maternal uncle came and participated in cremation of the

dead body. After 3 to 4 days of Sradh the informant asked for

return of the articles and money given to the deceased at the

time of marriage and on non-refund the criminal case was

lodged.

PW 2 Kamla Sah deposed that the daughter-in-

law of appellant Raj Kumar Prasad was ill since long. After

her death her parents had come and all had participated in the

cremation. There was no demand of any dowry either at the

time of marriage or thereafter. The deceased was happy in her

matrimonial house. The family members were behaving with

her properly. Dr. Alauddin had treated the deceased before her Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

death. The doctor deposed that since the village is in remote

area and it was inconvenient to reach Gopalganj or Siwan,

hence, the victim could not be treated at those places.

PW 3 Narad Tiwari deposed that the daughter-in-

law of appellant Raj Kumar died of illness. The witness is

neighbour of Raj Kumar. According to this witness, Raj

Kumar was behaving well with her daughter-in-law. The

father and uncle of the deceased had come and had

participated in the cremation. There was no demand of dowry.

5. The aforesaid witnesses are not hostile

witnesses. The prosecution has relied on their evidence. In

Raja Ram V. State of Rajasthan reported in (2005) 5 SCC

272 the Hon'ble Supreme Court said that if a witness is not

declared hostile by the prosecution, the defence can rely upon

the evidence of such witnesses and it would be binding on the

prosecution. The aforesaid view was reiterated in Mukhtiar

Ahmed Ansari V. The State (NCT of Delhi) reported in

(2005) 5 SCC 258.

6. PW 4 Rajendra Prasad is the informant of this

case. He has fully supported in his examination-in-chief what

he had disclosed in the First Information Report submitted to

the police that S was married with Pushpendra Kumar on Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

27.02.1996. Thereafter she went to her matrimonial house.

After 16 days, the informant went to village Pet Biraicha

(matrimonial village) then S disclosed that there is demand of

Gold Chain and Colour TV by the husband, the father-in-law,

mother-in-law, Sister-in-law and maternal uncle Indradeo

Prasad. The witness tried to console them but they were

adamant on their demand. One month thereafter, the witness

again visited the matrimonial house of S and again she

informed that there was demand of dowry and they were

torturing her. The witness returned after making some

promise. On 11.05.1996 the witness got information that the

family members of matrimonial house had poisoned to death

to his daughter and cremated the dead body. When the

informant went to the village of the deceased the people

informed that she has been done to death by the family

members. Identical is the testimony of PW 5 Fuleshwari

Devi, the mother and PW 6 Ajay Kumar, the brother of the

deceased. PW 7 Kishun Deo Prasad has been declared hostile

by the prosecution. PW 8 Ali Hussain is the Investigating

Officer of the case, who has supported the investigation done

by him.

7. Mr. Jagdish Prasad, learned counsel for the Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

appellants, submits that testimony of PWs 1 to 3 depicts a

different story than demand of dowry and torture for the same.

These witnesses are not hostile witnesses and the prosecution

has relied on their evidence. Thus, from totality of the

evidence of occurrence two views are possible. In the

circumstance, the view favourable to the accused is to be

preferred which is settled by a catena of judicial

pronouncements.

8. Learned counsel submits that there is delay in

lodging of the FIR and the delay is deliberate which would be

evident from the testimony of PW 4, the informant of this

case, vide paragraph 8, wherein he stated that after getting

information of death of his daughter he visited to her

matrimonial village and thereafter he went to adjoining

village Jagarnathpur and stayed in the night in the house of

Singhashan Bhagat. In the next morning, he went to his own

village Tekanbas within Mahmadpur Police Station in the

District of Gopalganj. The witness admitted that from

Jagarnathpur the Barauli P.S. is at a distance of six kilometers

on the main road but informant went to Mahmadpur P.S. and

the police informed to go and institute the case at Barauli P.S.

then the matter was reported at Barauli. On the basis of the Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

aforesaid evidence, contention is that during intervening

period chances of deliberation and concoction cannot be ruled

out. If the informant was aware that the death was a dowry

death he should have rushed to the Barauli police station at a

distance of six kilometers rather than staying in the house of

Singhashan Bhagat of Jagarnathpur in the night and in the

next morning going to his own village and thereafter to the

police station.

9. Learned counsel further submits that Rama

Shankar and Ashok Sah, who allegedly gave first information

of death to the informant were not produced as prosecution

witness to corroborate the claim of the informant.

10. On the other hand, learned counsels for the

respondent-State submits that the prosecution has successfully

proved that unnatural death took place within seven years of

marriage in the matrimonial house and there was demand of

Colour TV and a Gold Chain and for non-fulfillment of the

demand the victim was being tortured mentally by posing

threat to her murder and physically by commission of assault.

Therefore, the presumption under Section 113B of the

Evidence Act would be attracted and the burden would sift on

the accused persons to dispel the presumption. Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

11. As has been noticed above, three of the

prosecution witnesses PWs 1 to 3 does not support the case of

the prosecution that this was a case of dowry death. They are

not hostile witnesses. The testimony of these witnesses creates

a serious doubt on the trustworthiness of testimony of Pws 4

to 6. Assuming the testimony of Pws 4 to 6 as probable, two

views are possible from the prosecution evidence. The law is

settled that if two views are possible on the prosecution

evidence the view favourable to the accused should be

preferred. In the result the benefit of doubt would go in

favour of the appellants.

12. Normally the delay of few days in reporting

the matter to the police, of incident of dowry death is

immaterial as in most of the cases the parents get delayed

information about dowry death. However, in the present case

it assumes importance especially when some of the

prosecution witnesses are saying that the parents had

participated in the cremation of dead body and thereafter they

were demanding for refund of the gift items given to the

deceased at the time of marriage and on non-refund the

criminal case was lodged. Moreover, the delay is not due to

the fact that the informant had delayed knowledge of the Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

occurrence. The conduct of the informant in visiting the house

of the deceased and thereafter not reporting the matter to the

police at a distance of six kilometer on the main road; rather

staying in the adjoining village whole night and, thereafter

returning back to his own village and then reporting the

matter to the police, the chances of concoction and

deliberation cannot be completely ruled out.

Non-examination of the above referred persons

who had informed about the occurrence to the informant

creates doubt in absence of any evidence on the record that

anyone had seen the victim being tortured by her husband or

other relations for non-fulfillment of dowry demand.

Similarly, there is no witness who claims to have seen the

appellants or anyone involved in ensuring disappearance of

evidence of offence i.e., disposal of the dead body of the

victim of dowry death. Hence, only on the basis of

conjectures and surmises conviction under Section 201 of the

Indian Penal Code is also not sustainable in law.

13.The aforesaid infirmities leaves the prosecution

case shrouded with doubts and the appellants are entitled for

benefit of doubt. The learned trial Judge has not considered

the aforesaid infirmities in the prosecution evidence.

Patna High Court CR. APP (SJ) No.1920 of 2018 dt.24-09-2021

14. In the result, the judgment of conviction and

order of sentence under challenge is hereby set aside and both

these appeals are allowed. Appellant Indradeo Prasad @

Inardeo Prasad @ Inardeo Kushwaha is already on bail. He is

exonerated from the liability of his bail bonds. Appellant Raj

Kumar Prasad is in jail. Let him be set free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                13.09.2021
Uploading Date          24.09.2021
Transmission Date       24.09.2021