CR. APP (DB)/346/1994 of HIRALAL SAHNI and ORS Vs STATE OF BIHAR on 26 July 1994

1. Hira Lal Sahni, son of late Ram Ratan Sahni.

2. Lala Sahni, son of Manraj Sahni.

3. Dinesh Sahni, son of Dinkar Sahni.

All resident of Village Bhadaya, P.S.- Mahiuddin Nagar, District-Samastipur.

Versus

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withCriminal Appeal (DB) No. 363 of 1994

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1. Budhan Mahto, son of Kari Mahto.

2. Kari Mahto, son of Pyare Mahto.

3. Meena Devi, wife of Shankar Mahto.

All residents of Village- Bhadaiya, P.S.- Mohiuddinagar, Distarict-Samastipur.

... ... Appellant/s

Versus

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with

Criminal Appeal (DB) No. 417 of 1994

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Premlal Mahto, son of Kari Mahto, resident of Village- Bhadaiya, PoliceStation Mahiuddinanagar, District Samastipur.

... ... Appellant/s

Versus

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Appearance :(In Criminal Appeal (DB) No. 346 of 1994)For the Appellant/s: Miss. Surya Nilambri, Advocate. For the State : Mr. Dilip Kumar Sinha, A.P.P.(In Criminal Appeal (DB) No. 363 of 1994)For the Appellant/s: Mr. Navin Prasad Singh, Advocate. Mr. Narayan Singh, Advcate. For the Respondent/s: Mr. PP(In Criminal Appeal (DB) No. 417 of 1994)For the Appellant/s: Mr. Navin Pd. Singh, Advocate. For the State : Mr. S.C. Mishra, A.P.P.

======================================================CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

and

HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRAORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)

Date : 29-10-2018

1. All the above stated criminal appeals have arisen out of common Judgment of conviction and sentence order dated08.07.1994 passed by the learned 2[nd] Additional Sessions Judge,Samastipur, in Sessions Trial No. 160/118 of 1993. Since all theaforesaid appeals have been heard, together, they are beingdisposed of by this common Judgment.

2. The appellants in Criminal Appeal (DB) No. 363 of 1994 are in-laws whereas appellant in Criminal Appeal (DB) No.417 of 1994 is husband of the deceased. The appellants inCriminal Appeal (DB) No. 346 of 1994 are stranger to the familyof the husband of the deceased.

3. The appellants in Criminal Appeal (DB) No. 346 of 1994 and Criminal Appeal (DB) No. 417 of 1994 have beenconvicted for the offences punishable under Sections 302 and 201of the Indian Penal Code and further, appellant in Criminal Appeal(DB) No. 417 of 1994 along with appellants in Criminal Appeal(DB) No. 363 of 1994 have been convicted for the offencespunishable under Sections 304B and 498A of the Indian Penal

Code whereas appellants in Criminal Appeal (DB) No. 363 of1994 have been acquitted of the charge framed under Section 302of the Indian Penal Code and, similarly, appellant no. 3 in CriminalAppeal (DB) No. 363 of 1994 has been acquitted of the chargeframed under Section 201 of the Indian Penal Code. The appellantsin Criminal Appeal (DB) No. 346 of 1994 and Criminal Appeal(DB) No. 417 of 1994 have been sentenced to undergo rigorousimprisonment for life for the offence punishable under Section 302of the Indian Penal Code whereas appellants in Criminal Appeal(DB) No. 363 of 1994 and Criminal Appeal (DB) No. 417 of 1994have been sentenced to undergo rigorous imprisonment for sevenyears for the offence punishable under Section 304B of the IndianPenal Code and to undergo rigorous imprisonment for three yearsfor the offence punishable under Section 498A of the Indian PenalCode. Furthermore, the appellants, who have been convicted forthe offence punishable under Section 201 of the Indian PenalCode, have been sentenced to undergo rigorous imprisonment forseven years for the above stated offences. However, all the abovestated sentences were ordered to run concurrently.

4. P.W.7, Ram Balak Mahto, filed complaint casebearing Complaint Case No. 280 of 1992 (Ext.1) on 09.09.1992alleging therein that the marriage of his sister, namely, Uma Kumari Devi, was solemnized with appellant in Criminal Appeal(DB) No. 417 of 1994 two years ago but after marriage, theappellant in Criminal Appeal (DB) No. 417 of 1994 starteddemanding Hero Honda motorcycle and made several otherdemands from P.W.7 as well as his father giving threatening todesert his sister, if his demand is not fulfilled. P.W.7, further,claimed in his complaint case that with an object to save marriagelife of his sister, his father sold several lands and fulfilled the lustof appellant in Criminal Appeal (DB) No. 417 of 1994. He, further,claimed that on 11.12.1992, after performance of Duragman, hissister went to her Sasural but appellant in Criminal Appeal (DB)No. 417 of 1994 again started torturing his sister and startedpressurizing her to fetch motorcycle from her parents and brothers.P.W.7, further, claimed that he went to the village of in-laws of hissister and tried to patch up the aforesaid dispute with the help ofvillagers and also asked the in-laws of his sister to send his sisterto her parental home for some period but they refused to send hissister till the fulfillment of demand of motorcycle. He, further,claimed that in the night of 08.07.1992 all the appellants havingentered into conspiracy committed the murder of his sister and gotburied her dead body near Kakaraha bridge. He, further, claimedthat neighbours of appellant in Criminal Appeal (DB) No. 417 of

1994 had heard the crying of his sister in the night of allegedoccurrence and had also seen the appellants carrying and buryingthe dead body of the deceased. P.W.7, further, claimed that hisbrother, namely, Shiv Balak Mahto got information about thealleged occurrence from P.W.6 Styanarayan Mishra and having gotinformation of the alleged occurrence on 08.07.1992, he gaveinformation to Officer-in-Charge of Mohiuddin Nagar PoliceStation but Officer-in-Charge of Mohiuddin Nagar Police Station,in collusion of appellant no.-3, in Criminal Appeal (DB) No. 346of 1994, did not lodge any case. He, further, claimed that theinformation of the alleged occurrence was given to Superintendentof Police, Samastipur through registered post.

5. The aforesaid complaint case was inquired andthe learned Inquiry Court having found prima facie casesummoned the appellants to face the trial and committed the Caseto the court of Sessions where the above stated case was numberedas Sessions Trial No. 160/118 of 1993.

6. All the appellants were put on trail and,accordingly, appellants in Criminal Appeal (DB) No. 363 of 1994and Criminal Appeal (DB) No. 417 of 1994 stood charged for theoffences punishable under Sections 304B and 498A of the IndianPenal Code whereas all the appellants stood charged for the offences punishable under Sections 302 and 201 of the IndianPenal Code. The appellants denied the charges and claimed to betried.

7. In course of trial, prosecution to prove its case, gotexamined, altogether, nine witnesses and also got exhibited thecertain documents including one inland letter as Ext.3 and postalreceipt as Ext.4. The statements of appellants were recorded underSection 313 of the Cr.P.C., in which, they reiterated theirinnocence and claimed their false implication. They also claimedthat they shall give their defence in writing.

8. The appellants also gotexamined two defencewitnesses and furthermore, got exhibited certain documents insupport of their defence. The trends of cross-examination ofprosecution witnesses as well as evidences adduced on behalf ofthe appellants go to show that the defence of the appellants wasthat the deceased died due to ailment and P.W.6 and some otherprosecution witnesses being inimical to the appellants gotimplicated them in a false case.

9. Learnedtrial court having scrutinized theevidences available on the record and having relied upon the oraland documentary evidences adduced on behalf of the prosecution, convicted and sentenced the appellants passing the impugnedJudgment in the manner as stated above.

10. Miss. Surya Nilambri, learned Amicus Curiaeappearing in Criminal Appeal (DB) No. 346 of 1994 challengedthe impugned Judgment of conviction and sentence order arguingthat there was inordinate delay in filing the complaint petition andno cogent explanation of the aforesaid delay was given by theprosecution in course of trial but the learned trial court completelyignored the aforesaid fact. She, further, submitted that the materialprosecution witnesses made contradictory statements and as amatter of fact, prosecution could not succeed to prove the requiredingredients of Section 304B of the Indian Penal Code and so far asthe statement of P.W. 6 is concerned, it is specific case of thedefence that P.W.6 had inimical term with the appellants andmoreover, his conduct was quietunnatural and, therefore, theaforesaid witness was not trustworthy witness but, even, then thelearned trial court having relied upon the testimony of P.W.6convicted and sentenced the appellants. She, further, submittedthat there was other infirmities in the prosecution case but thelearned trial court ignored the aforesaid infirmities.

11. Learned counsel appearing in the remainingcriminal appeals seconded the above stated submissions arguing

that the brother and father of the complainant were not examinedby the prosecution in course of trial and none examination ofaforesaid prosecution witnesses was fatal to the prosecution case,as father of deceased was competent person to say about the claimof demand of motorcycle. He, further, submitted that so far as theinland letter(Ext.3) is concerned, the same is forged letter but thelearned trial court relied upon the inland letter and came to wrongconclusion.

12. On the other hand, learned Additional PublicProsecutor supported the impugned Judgment of conviction andsentence order arguing that, almost, all the material witnesses havesupported the prosecution case and the prosecution has givensufficient explanation of delay in lodging the case, as P.W.7claimed that prior to filing of the complaint petition, his brother,namely, Shiv Balak Mahto, had informed the Officer-in-Charge ofMohiuddinagar Police Station on 18.07.1992 but the aforesaidOfficer-in-Charge of Mohiuddinagar Police Station did not registerany case and, thereafter, a petition was sent to the Superintendentof Police, Samastipur, on 13.07.1992 and the copy of the aforesaidpetition as well as postal receipt have been brought on record bythe prosecution. Learned Additional Public Prosecutor, further,submitted that prosecution succeeded to prove all the ingredients of Section 304B of the Indian Penal Code and moreover, P.W.6and some other prosecution witnesses claimed to have seen theappellants committing the alleged crime and, therefore, there is noneed to interfere into the impugned Judgment of conviction andsentence order.

13. Aswe have already stated that, altogether, nineprosecution witnesses were examined in course of trial and out ofthem, P.W.4 Jagernath Choudhary, P.W.5 Upendra Choudhary andP.W.6 Satyanarayan Mishra claimed themselves to be an eyewitness of the alleged occurrence whereas P.W.7 Ram BalakMahto is complainant and has admitted in his statement that afteralleged occurrence, P.W.6 Satyanarayan Mishra had giveninformation about the alleged occurrence to his brother, ShivBalak Mahto and, subsequently, he got information of theaforesaid occurrence.

14. P.Ws.1 and 2, namely, Raj Kumar Singh andTriloki Prasad Singh are formal witnesses. Sofar as P.W.3 AmreshKumar Choudhary is concerned, he claimed that while he was athis field, he had seen the appellants in Criminal Appeal (DB) No.417 of 1994 and Criminal Appeal (DB) No. 363 of 1994 as well asfour to five unknown persons, who were burying the dead bodynear the Kakraha Bridge. P.W.3, further, claimed that the aforesaid dead body was of daughter-in-law of appellant no. 2 in CriminalAppeal (DB) No. 363 of 1994. This witness, further, claimed thatsubsequently, he learnt that the daughter-in-law of appellant no.2in Criminal Appeal (DB) No. 363 of 1994, namely, Kari Mahtowas done to death due to non-fulfillment of demand of motorcyclein dowry and, subsequently, her dead body was buried.

15. P.W.8 and P.W.9, namely, Gaya Prasad Rai andRamchandra Paswan, respectively, are formalwitnesses. P.W.8 hasproved the signature of Shiv Balak Mahto on original complaintand also claimed that original complaint petition was typed by R.S.Choudhary in his presence. So far as P.W. 9 is concerned, thiswitness claimed to have identified the writings and signature ofdeceased Uma Kumari on inland letter, which has been marked asExt.3.

16. It is obvious that P.W.4, P.W.5 and P.W.6 aremost important witnesses of the prosecution and similarly, P.W.3 isalso an important witness to some extent.

17. Firstof all, we would like to deal with theevidence of P.W.6, because P.W.7 has claimed that just after thealleged occurrence P.W.6 gave information to Shiv Balak Mahto,brother of P.W.7 and after that Shiv Balak Mahto went toMohiuddinagar Police Station and gave written report to Officer-

in-Charge, Mohiuddinagar Police Station about the allegedoccurrence but admittedly, no case was registered inMohiuddinagar Police Station in respect of alleged occurrence.P.W.6 claims that on the alleged date of occurrence, he had gone tothe house of in-laws of deceased Uma Kumari and met withdeceased Uma Kumari, who started telling her regarding torturemeted out to her by her husband and other in-laws but appellantno. 3 in Criminal Appeal (DB) No. 363 of 1994 called the otherappellants and thereafter, the appellant in Criminal Appeal (DB)No. 417 of 1994 ordered to kill the deceased and thereafter,appellant no. 1 in Criminal Appeal (DB) No. 346 of 1994 overthrew the deceased on the ground. This witness claimed that hetried to intervene into the matter and the deceased, too, raisedalarm. This witnesses, further, claimed that he also started cryingand in the meantime, Upendra, Jagernath, Ram Nihora Choudharyand Batahu Mahto came there. This witness, further, claimed thatappellant no. 1 in Criminal Appeal (DB) No. 363 of 1994 caughthold the hands of deceased, appellant no. 2 in Criminal Appeal(DB) No. 346 of 1994 caught hold the legs of the deceasedwhereas appellant in Criminal Appeal (DB) No. 417 of 1994 putpoison into the mouth of the deceased. This witness, further,claimed that he tried to prevent the appellant in Criminal Appeal (DB) No. 417 of 1994 from putting poison into the mouth of thedeceased but appellant no. 3 in Criminal Appeal (DB) No. 346 of1994 pushed him, as a result of which, he felled down there. He,further, claimed that the deceased started crying, then he left theaforesaid place and came to the house of his relative. This witness,further, claimed that after one and half hour of the aforesaidoccurrence, appellants, Kari Mahto, Budhan, Premlal Mahto,Dinesh Sahni, Hira Lal and Lala Sahni took the dead body ofdeceased towards Chour. This witness, further, claimed that hegave information to brother of deceased. This witness also claimedthat the marriage of the deceased had taken place two years ago.On being cross-examined by the defence, this witness admitted atpara 7 that the father of the deceased was alive. He, further,submitted that he had visited the in-laws house of deceased twiceand for the first time, he visited the in-laws house of the deceasedwhen Panchayati was conveyed. This witness, further, admittedthat 6 to 7 persons had gone along with him to attend Panchayati atthe village of in-laws of deceased. Furthermore, this witness atpara 9 of his cross-examination stated that on second time, hevisited the house of in-laws of deceased on the request of brotherof the deceased, who asked P.W.6 to go to the house of in-laws, ashe had received information through the letter of deceased, that

even, after Panchayati the in-laws of deceased had not changedtheir behaviours towards the deceased. This witness, furtherclaimed that his Sasural is in the village of the appellants and thehouse of his in-laws is at the distance of 10 Laggas from the houseof appellant in Criminal Appeal (DB) No. 417 of 1994. Thiswitness admitted that one Kapal Choudahry is his brother-in-law.This witness denied the suggestion of defence that the house of hisin-laws was about one and half Kilometer from the house ofappellant in Criminal Appeal (DB) No. 417 of 1994. This witness,further, admitted that he remained at the place of occurrence for 15to 20 minutes and in the meantime, 6 to 7 persons came therehaving herd his alarm. This witness, further, admitted that he triedto save the life of deceased but due to push given by appellantDinesh Sahni, he could not succeed in hisattempt. This witnessadmitted at para 12 of his cross-examination that he did not giveany information in respect of the alleged occurrence to Choukidar,Dafadar or local Police Station. He also admitted that he gaveinformation in respect of the alleged occurrence to the wife ofbrother of the deceased on next day at about 12 noon to 1 P.M.andafter two days of the occurrence, the brother of deceased came tomeet him and then he narrated the entire story to him. Thiswitness, further, claimed that he had not gone to Police Station along with brother of the deceased. This witness denied this factthat he was accused in murder case of one Issher Sahni. Thiswitness also denied the suggestion of defence that deceased UmaKumari had died of her natural death and on instigation of hisrelatives, he got filed false case against the appellants by takingP.W.7 in his collusion. This witness admitted that he had madestatement in this casebefore the court at the engaging stage butfailed to remember, as to whether, he had claimed in his previousstatement about the disclosure made by deceased, Uma Kumari,before him as well as the manner, in which, the occurrence tookplace. This witness, further, claimed that he had seen theappellants carrying the dead body from the distance of 2 to 3Laggas and at that time, the son of his brother-in-law was alsoalong with him but neither he nor the family members of his in-laws raised any alarm. This witness, further, stated that he straightway went to the house of his in-laws from the house of appellantsin Criminal Appeal (DB) No. 363 of 1994 but he did not disclosethe above stated occurrence before any person except the son ofhis brother-in-law. This witness, further, admitted that he had notgiven information before the police or any higher police officialsabout the alleged occurrence.

The statement of this witness goes to show that thiswitness was very close to the family of P.W.7 and according to thiswitness as well as P.W.7, prior to alleged occurrence, this witnesshad gone to attend the Panchayati on behalf of P.W.7.Furthermore, this witness claimed that when deceased was killed,he was present thereand after occurrence, he gave information toShiv Balak Mahto, brother of P.W.7 but the conduct of this witnessappears to be unnatural, because had he seen the allegedoccurrence, he would have certainly given information to Maikapeople of deceased without any delay or would have taken step toinform the police or any other officials but it is surprising enoughthat, even, having seen the killing and burying of deceased, heslept at his in-laws house and subsequently, on next day went tohis village and thereafter, gave information to the allegedoccurrence. This witness did not disclose about the allegedoccurrence before any person except before the son of his brother-in-law. The above stated conduct of P.W.6 creates doubt about histrustworthiness and we are of the opinion, that no reliance cansafely be placed upon the testimony of P.W.6.

18. P.W.4 Jagernath Choudhary and P.W.5 UpendraChoudahry are co-villagers of appellant in Criminal Appeal (DB)No. 417 of 1994. Both the aforesaid witnesses claimed to have seen the actual killing of the deceased and stated that theappellants killed the deceased in the manner as stated by P.W.6 butP.W.4 added in his statement that the bottle of poison was given toappellant in Criminal Appeal (DB) No. 417 of 1994 by appellantno. 3 in Criminal Appeal (DB) No. 346 of 1994, though, theaforesaid statement has not been made by P.W.6. This witnessclaimed that at the time of alleged occurrence, he had gone to thehouse of Dukhran Mahto, whose house was situated at 10 to 20Laggas from the house of appellant in Criminal Appeal (DB) No.417 of 1994 and went to the house of in-laws of deceased havingheard the cry of deceased but this witness admitted that theaforesaid Dukhran Mahto had not gone along with him at thehouse of in-laws of deceased. Theaforesaid statement of thiswitness appears to be quite unnatural. Admittedly, this witness isnot neighbour of appellant in Criminal Appeal (DB) No. 417 of1994 and admittedly, Dukhran Mahto is neighbour of appellant inCriminal Appeal (DB) No. 417 of 1994 and there is nothing in thestatement of this witness that Dukhran Mahto had any inimicalterm with appellant in Criminal Appeal (DB) No. 417 of 1994,therefore, it appears quite unnatural that a neighbour did not takepain to go to the house of appellant in Criminal Appeal (DB) No.417 of 1994 after having heard cry coming from the house of appellant in Criminal Appeal (DB) No. 417 of 1994 and a strangervisited the house after having heard the cry. Moreover, P.W.4,further, admitted at para 9 of his cross-examination that when hereached at the house of appellant in Criminal Appeal (DB) No. 417of 1994, near about 10 persons had already assembled there andthe aforesaid persons were neighbours of appellant in CriminalAppeal (DB) No. 417 of 1994. This witness admitted that he hadno talkwith Uma Kumari and remained at the place of occurrencefor near about 10 to 15 minutes. This witness, further, admitted atpara 11 of his cross-examination that the house of P.W.6 was atabout 5 Kosh East from the place of occurrence. This witness,further, stated that he had given oral information about theoccurrence to Mukhiya and Sarpanch of his village but admittedly,neither Surpanch nor concerned Mukhiagave any information tothe police about the alleged occurrence and, t herefore, the abovestated claim of P.W.4 appears to be doubtful. P.W.4, further,admitted that he had heard about the demand of dowry in hisvillage and P.W.7 had disclosed to him about the fact of demand ofdowry. Therefore, it is obvious that this witness is not a competentwitness on the factum of demand of dowry. This witness alsoadmitted that he had heard that a Panchayati had been conveyed.The defence specifically suggested to this witness that P.W.7 Ram Sevak Mahto was servant of P.W.6 but this witness expressed hisinability to say about the above stated fact. This witness, further,denied that Bakil Sahni was not the uncle of Hira Lal Sahni andDinesh Sahni.

19. Similarly, P.W.5 also admitted that he reachedat the house of in-laws of deceased and remained there near about15 minutes and in the meantime, 3 to 4 nearby people came thereand out of them, he identified Dukharan and Sonelal Mahto. Thiswitness also admitted that he had learnt the fact of demand ofdowry from P.W.7 and he had no concerned with deceased. Thiswitness, fuhrer, admitted that no document was prepared inPanchayati. This witness also admitted that when his statementwas recorded in course of inquiry, he had disclosed that Putohuhad given information to him regarding the death of the deceased.This witness, further, stated that he had given information of thealleged occurrence to son of Ex-Choukidar but did not give anyinformation to the concerned Police Station, as the Police Stationwas far away from the place of occurrence. This witness admittedthat he is distantly related with Kapal Choudhary, who happens tobe the brother-in-law of P.W.6. This witness, further, admitted thathe had heard the cry of only P.W.6. This witness also admitted thathe remained at the place of occurrence for near about 15 to 20

minutes and in the meantime, five to six persons also assembledthere. This witness further admitted that he was deputed as Punchin Panchayati and Sakaldeo Choudhary, Ram Nandan Choudahry,Babhu Mahto, Satyanarayan Mishra (P.W.6) and Sone lal Mahtowere Punches of Panchayat and all the aforesaid Punches wereappointed on behalf of P.W.7.

The statements of P.W.4 and P.W.5 go to show that boththe aforesaid witnesses are also closed with P.W.7 and theyclaimed not to have attended the Panchayati on behalf of P.W.7 butalso claimed to have seen the actual killing of deceased. However,it is surprising enough that, even, being so closed to P.W.7 both theaforesaid witnesses failed to give any information to any otherpersons including the informant as well as police officials.Therefore, the aforesaid conduct of P.W. 4 and P.W.5 createsserious doubt about their claim. The appellants have specificallytaken defence that the Kapal Choudhary had inimical term withthem and the aforesaid Kapal Choudhary managed to P.W.6 andP.W.7 and got lodged this false case.

20. On the basis of aforesaid discussions, theaforesaid so-called eye witnesses do not appear to be trustworthynor inspires confidence to this Court and, therefore, in our view, no reliance can safely be placed upon the deposition of P.W.4, P.W.5and P.W.6.

The prosecution has brought Ext.3, the so-called lettersaid to be written by deceased to her father prior to allegedoccurrence in evidence and in the aforesaid letter, she disclosedthat she was subjected to cruelty by her in-laws due to non-fulfillment of demand of motorcycle in dowry.

21. P.W.9 has proved the writing and signature ofdeceased on the aforesaid letter and P.W.9 claimed that he wasteacher and he had given tuition to deceased. This witness hascross-examined at length by the defence and in course of cross-examination, it was suggested by the defence that he was a tractordriver and had never taught the deceased. This witness admittedthat he had seen Ext. 3 for the first time in court.

22. P.W.7 Ram Balak Mahto iscomplainant of thepresent case. This witness supported his case in his examination-in-chief and stated that he got information about the torturing ofdeceased as well as demandof motorcycle through letter sent tohim by deceased and after that he went to village of in-laws ofdeceased and tried to pursued them and also gave proposal to takeback the deceased but in-laws of deceased refused to send her tothe house of P.W.7. This witness, further, claimed that, thereafter,

he went to Orrisa and when got information about the allegedoccurrence at Orrisa, he returned to his home and lodged the case.This witness produced the letter (Ext.3) before the court and alsopostal receipt to show that the petition was given to higher officialsof police through registered post. This witness, on being cross-examined by the defence, admitted that he got information aboutthe alleged occurrence from his brother, Shiv Balak Mahto and theaforesaid information was given to him by Shiv Balak Mahto aftertwo months of the alleged occurrence. This witness admitted thatShiv Balak Mahto had not given any information to police in hispresence and this witness also admitted that the copy of petition,which was given to Superintendent of Police, has not been filed inthis case nor the copy of information given to police has beenbrought on the record. However, this witness subsequently, statedthat copy of both the aforesaid petitions were filed along with thecomplaint petition. This witness, further, stated that he had metwith Superintendent of Police in connection with the present casebut did not meet S.D.O and Collector. This witness also admittedthat his father was alive. This witness, further, admitted that hisfamily possessed one and half bighas of lands whereas appellant inCriminal Appeal (DB) No. 417 of 1994 had ten bighas of land. Healso admitted that he was working as Khalasi and failed to disclose as to how much lands were sold by his father since last five years.This witness, further, admitted that when he got letter of his sister,he went to meet hissister. This witness, further, admitted that hissister studied up to class -V. This witness, further, stated that hisbrother had sent a letter to him mentioning this fact that deceasedwas killed and he receipt the aforesaid letter through hand but theaforesaid letter has not been brought before the court. This witnesshad admitted at para 21 of his cross-examination that after filing ofthe complaint case, he had not given any petition before the courtfor recovery of dead body of deceased. This witness denied that hewas servant of Satyanarayan Mishra (P.W.6) and on the instigationof Satyanarayan Mishra (P.W.6) and Kapal Choudhary as well asRam Bahadur Choudahry, he lodged the present false case.

23. The above stated discussed evidence goes toshow that according to prosecution case, the alleged occurrencetook place on 05.07.1992 but the complaint case was filed nearabout after two months of the alleged occurrence. No doubt, P.W.7claimed in his evidence that his brother, Shiv Balak Mahto hadgiven written report before the Officer-in-Charge ofMohiuddinagar Police Station on 08.07.1992, i.e., after three daysof the alleged occurrence but neither the copy of the aforesaidpetition has been exhibitedin the present case nor aforesaid Shiv Balak Mahto has been examined in this case to support theaforesaid fact, particularly, in the circumstance when P.W.7 hasadmitted in his statement that Shiv Balak Mahto had not givenpetition to Officer-in-Charge of Mohiuddinagar Police Station inhis presence. Therefore, the explanation placed by the prosecutionin respect of delay of filing of the complaint case does not appearto be plausible and liable to be rejected and in our view, the delayin lodging the aforesaid complaint case creates serious doubt aboutthe claim of the prosecution.

Admittedly, neither Shiv Balak Mahto nor NankiMahto, who happens to be to brother and father of the deceased,respectively, have been examined in this case, particularly, in thecircumstance, when both the persons were alive at the time ofrecording the evidence and it was Shiv Balak Mahto, who got firstinformation from P.W.6 about the alleged occurrence but theaforesaid Shiv Balak Mahto has not been examined. So far asletter (Ext.3) is concerned, the aforesaid letter was produced byP.W.7 in course of trial and he has, nowhere, disclosed in hisdeposition as to how he got that letter when the aforesaid letterwas addressed to his father, namely, Nanki Maho and, therefore,non-examination of Nanki Mahto was also fatal to the persecution case and the above stated circumstancescreates doubt about thegenuineness of Ext.3.

24. According to prosecution case, P.Ws. 3, 4, 5and 6 claimed to have seen the appellants burying the dead body ofthe deceased near Karhara Bridge and the prosecution brought apetition before the trial court that prior to filing of complaintpetition, Shiv Balak Mahto had given a petition to Superintendentof Police, Samastipur, for recovery of dead body of deceased.P.W.7 has admitted in his examination-in-chief that after filing ofthe complaint petition, no petition for recovery of dead body ofdeceased was filed before the court. It is surprisingly enough thatthe above stated witness claimed to have seen the place, where thedead body of deceased was buried and prior to filing of thecomplaint case, the brother of P.W.7, allegedly, took step forrecovery of dead body of deceased by filing petition before theSuperintendent of Police, Samastipur but P.W.7 after filing of thecase did not take any step to make prayer before the court forissuance of direction to police for recovery of dead body ofdeceased and, therefore, the aforesaid circumstance also createsdoubts about the genuineness of prosecution case.

The material available on record go to show thatprosecution miserably failed to prove all the necessary ingredientsof Section 304B of the Indian Penal Code.

25. On the basis of the aforesaid discussions, weare of the view that the prosecution failed to prove its case beyondall shadow of reasonable doubt and the appellants are entitled toget benefit of doubt and, therefore, all the above stated criminalappeals are allowed and the impugned Judgment of conviction andsentence order dated 08.07.1994 passed in Sessions Trial No.160/118 of 1993 are, hereby, set aside. All the appellants areacquitted of the charges. The appellants are on bail, they aredischarged from the liabilities of their respective bail bonds.

26. The copy of first and last page of Judgment behanded over to Miss. Surya Nilambri, learned Amicus Curiae, sothat she may claim before the competent authority for herremuneration.

(Hemant Kumar Srivastava, J)

Bhardwaj/-

( Rajendra Kumar Mishra, J)

AFR/NAFRAFRCAV DATEUploading Date27.11.2018Transmission Date27.11.2018