Patna High Court
Pankaj Kumar @ Vijay Pandit vs The State Of Bihar on 4 January, 2024
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.448 of 2018
Arising Out of PS. Case No.-243 Year-2003 Thana- SURYAGARHA District- Lakhisarai
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Pankaj Kumar @ Vijay Pandit S/o Ram Prasad Pandit, R/o Village-
Chakamsakam, P.S.- Suryagarha, District- Lakhisarai.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Udbhav, Advocate
For the Respondent/s : Mr. A.M.P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 04-01-2024
1. Heard learned counsel for the appellant and
learned APP appearing for the State.
2. This appeal has been filed against the
judgment of conviction dated 05.01.2018 and order of
sentence dated 09.01.2018 passed by the learned
Additional Sessions Judge-cum-Fast Track Court No.1,
Lakhisarai, in connection with Sessions Trial Case No.
62 of 2005, arising out of Surajgarha P.S. Case No. 243
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
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of 2003, G.R. No. 694 of 2003, whereby and whereunder
the appellant has been convicted for the offence
punishable under Section 306 of the Indian Penal Code
(hereinafter referred to as 'IPC') and sentenced to
undergo rigorous imprisonment for 5 years with a fine of
Rs. 10,000/- (Rupees ten thousand only) for the said
offence and in default of payment of fine, to further
undergo rigorous imprisonment for a period of 3 months.
3. The appellant Pankaj Kumar @ Vijay Pandit
was tried along with co-accused Ram Prasad Pandit and
Badami Devi.
4. The accused persons including the appellant
stood charged for the offences punishable under Section
304B of IPC and Section 3/4 of Dowry Prohibition Act
(hereinafter referred to as 'DP' Act).
5. The accused persons namely, Ram Prasad
Pandit and Badami Devi were acquitted of the offences
for which they were charged. So far as the appellant is
concerned, the trial court concluded that the prosecution
failed to prove the charges under Section 304B of IPC
and Section 3/4 of DP Act but succeeded in establishing
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
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its case under Section 306 of IPC which is a lesser
offence to the offence of Section 304B of IPC and
accordingly, the appellant was convicted for the offence
punishable under Section 306 of IPC.
6. Mr. Udbhav, learned counsel appearing for
the appellant has argued that out of the material witnesses
of the prosecution, PW-2 to PW-7 were declared hostile
before the trial court and the appellant's conviction is
completely based on the evidence of PW-1 and PW-8,
who are stated to be father and mother of the deceased
but there are serious contradictions among their
statements regarding the relevant facts. It has been further
argued that the prosecution failed to establish the cause of
death of the victim and the Doctor concerned, who
conducted the postmortem examination, did not find any
external or internal injury over the body of the deceased,
so he could not ascertain the cause of death of the
deceased and eventually he sent the viscera of the deceased to
Forensic Science Laboratory (hereinafter referred to as
('FSL') for ascertaining the cause of death but during trial,
the prosecution failed to produce the viscera report of the
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deceased. It has been further argued that so far as the
offence under Section 306 of IPC is concerned, the
offence cannot be deemed to have been proved as the trial
court concluded that the prosecution failed to establish
the offence of Section 304B of IPC, so on the same
evidences, particularly in the circumstance of non-
proving the cause of death, the offence punishable under
Section 306 of IPC which is a lesser offence to the
offence of Section 304 of IPC cannot be deemed to have
been proved. Further submission is that the deceased died
due to bursting of appendix and when her condition
deteriorated she was taken to hospital by the appellant
and his family members and in this regard the evidence
of PW-1 and PW-8 is relevant and the FIR is ante-dated
and some important persons who are stated to have
accompanied the informant to the house of the appellant
and to the hospital where the victim was being treated,
were not produced and examined by the prosecution
despite their specific names having been given in the
FIR.
7. On the contrary, learned APP appearing for
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the State has argued that the victim died an unnatural
death within 7 years of her marriage and the appellant
failed to establish his defence as to victim's death caused
due to bursting of her appendix and from the evidence of
PW-1 and PW-8, it is clearly evident that the appellant
and his family members had been torturing the victim for
the demand of motorcycle and jewellery since the time of
her marriage and on account of the behaviour of the
appellant, the victim became fed-up with her life and
finally she committed suicide by consuming poison.
8. Heard both the sides and perused the
evidences available on the case record of trial court and
also gone through the statement of the convict.
9. In the present matter, the victim who
happened to be the daughter of the informant, was
married to the appellant just some months ago from the
date of the alleged occurrence and as per allegation, the
appellant started torturing his wife (victim) for the
demand of motorcycle and jewellery just after some days
of their marriage and regarding the appellant's demand,
the victim always informed her parents, to which the
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appellant and his father were told and explained by the
victim's father that he was not able to fulfill their demand
as he was an impecunious person and thereafter on
22.10.2003
, he got the information that his daughter had
been killed by administering poison to her.
10. In the instant matter, the prosecution
witnesses no. 2 to 7 were declared hostile and they did
not support the prosecution's case. For invoking the
provisions and offence of Section 306 of IPC, the
prosecution is bound to prove and establish that the
deceased committed suicide and she had been subjected
to cruelty within the meaning of Section 498A of IPC.
Though the prosecution's important witnesses PW-1 and
PW-8 deposed that the appellant had been harassing and
torturing the victim for the demand of motorcycle and
jewellery and in the FIR, it was alleged that the victim
died of poisoning but from the perusal of Exhibit- 3,
which is postmortem report of the deceased, it appears
that any external sign of poisoning was not found by the
Doctor concerned and neither external nor internal injury
was found and therefore, the cause of death of the victim
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
could not be ascertained by the Doctor concerned and
consequently, the viscera of the deceased was preserved
and sent to FSL for chemical examination. The Doctor,
who conducted the postmortem examination, was
examined as PW-11 and he , supported the findings given
by him in the postmortem report of the deceased. If the
victim had been poisoned then definitely some signs
such as changing the colour of nails, tongue and froth
coming out from the mouth etc. must be present at the
time of inspection of the dead body but no such sign was
found by the Doctor while the victim's body was
autopsied immediately on the same day of her death.
When cause of death of one is not clear then in such a
case, in order to ascertain the cause of death, forensic
expert's opinion is taken and viscera of the deceased is
sent to the FSL department and in this matter also,
viscera of the deceased was sent to the FSL Department
but during trial, the prosecution failed to produce the FSL
report concerned to the chemical examination of the
viscera of the deceased. So, in such situation this court
finds that before the trial court, the prosecution failed to
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
establish the cause of death of the victim. Though, the
victim died an unnatural death but she might have died
due to some other reason other than the prosecution's
allegation as to victim's death due to poisoning and the
said circumstance goes against the prosecution in
establishing the main ingredient of the offence of Section
306 of IPC regarding the factum of suicide by the
victim.
11. Here, it is relevant to mention that the
appellant has taken the defence that the deceased had
been suffering from stomach pain for some period and
when her condition deteriorated she was taken to a
private clinic which was being run by Dr. Upendra Singh
and during the course of treatment she died. Though, the
appellant did not give cogent evidence to support his
defence as to victim's death due to appendicitis problem
but one thing is quite clear that the victim was taken to
hospital by her in-laws for treatment and in this regard,
the FIR itself and evidence of PW-8 is sufficient and the
said circumstance goes in favour of the appellant.
12. From the above discussed facts, this court
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
forms the opinion that though the prosecution succeeded
to prove an unnatural death of the victim within 7 years
of her marriage and the evidence of prosecution's
material witnesses PW-1 and PW-8 goes to show that the
victim was being harassed and tortured by the appellant
for the demand of motorcycle and jewellery but the
prosecution miserably failed to establish that the victim
committed suicide by taking poison or something else. If
the victim had taken poison then there must have been
some external sign of poisoning on her body when she
was being examined by the Doctor concerned for the
purpose of postmortem examination but no such sign was
found and prosecution did not produce the FSL report of
the viscera of the deceased so the cause of death of the
victim could not have been proved by the prosecution.
The facts of present case suggest that either victim might
have committed suicide or died of some ailment or some
other reason and the defence witnesses were cross-
examined at length about the cause of death but they did
not reveal any fact in their cross-examination to show
that the victim consumed poison at the relevant time of
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
the occurrence. Hence, the factum of death of the victim
due to suicide remained not proved before the trial court.
Owing to the said reason, the prosecution is not entitled
to get the benefit of the presumption under Section 113A
of the Indian Evidence Act.
13. Accordingly, this court finds that the
appellant is entitled to get the benefit of doubt and I find
the judgment impugned convicting the appellant for the
offence punishable under Section 306 of IPC to be not
sustainable in eye of law, hence, the impugned judgment
and order convicting and sentencing the appellant for the
offence punishable under Section 306 of IPC stand set
aside and the present appeal stands allowed.
14. As according to the submission made by the
appellant's counsel, the appellant has been released from
jail under the provisions of Special Remission, hence
there is no need to pass any direction for his release from
the jail.
15. Let the judgment's copy be sent to the trial
court for needful.
16. Let the L.C.R. be sent back to the trial court
Patna High Court CR. APP (SJ) No.448 of 2018 dt.04-01-2024
forthwith.
(Shailendra Singh, J)
Rajiv-
AFR/NAFR AFR
CAV DATE
Uploading Date 10.01.2024
Transmission Date 10.01.2024
.
