Balkrishna Jha, J.
1. Both the appeals have been preferred under Section 374(2) of the Criminal Procedure Code against the judgment and order dated 19.8.1997 passed by the then learned Additional Sessions Judge-IV, Madhubani in Sessions Trial No. 96/90. The learned Additional Sessions Judge convicted the appellants, Krishna Datta Mahto and Ram Lakhan Mahto under Sections 302/498A of the Indian Penal Code and sentenced them to rigorous imprisonment for life and three years respectively. He also convicted all the 10 appellants under Section 201, I.P.C. and sentenced them to rigorous imprisonment for 7 years. The sentences of the appellants, Krishna Datta Mahto and Ram Lakhan Mahto, however, were ordered to run concurrently.
2. On 23.3.1988 at about 7.30 a.m., the informant, Mukti Kumar Singh, P.W. 9, of village Ganghaur, P.S. Babubarahi, District Madhubani lodged FIR (Ext. No. 5) at Khajauli Police Station, District Madhubani, alleging inter alia that his younger sister, Lila Devi, was married with the appellant, Krishna Datta Mahto, son of the appellant, Ram Lakhan Mahto, of village Kanhauli, P.S. Khajauli, District Madhubani on 25.5.1986. Her second marriage, i.e., Gouna was performed in January, 1987 and she went to her Sasural house. After marriage the appellant, Krishna Datta Mahto and his family members made demand of Rs. 15,000/- and threatened to desert Lila Devi and kill her in case of non-fulfilment of the demand. In August, 1987 she was assaulted and turned out of her Sasural house and she came to her parents' house. In October, 1987, a panchayatee was held at the house of the informant in presence of the appellant, Ram Lakhan Mahto and many villagers. In pursuance of the panchayatee the Vidagari of Lila Devi was performed and thereafter when the informant went to see her at her Sasural house he was not allowed to see by his brother-in-law, the appellant and other family members. On 22.3.1988, a person of Kanhauli village came to the house of the informant and informed that his sister, Lila Devi was killed and her dead body was burnt. On this information, the informant, went to Kanhauli Tola Turkaha village and came to know that due to non-satisfaction of dowry demand on 22.3.1988 at about 11/12 O'clock get appellant, Krishna Datta Mahto and his father, Ram Lakhan Mahto, killed his sister by pressing lathi on her neck. After committing her murder, the dead body of Lila Devi, was burnt in the bamboo-clumps standing in front of the house of the appellant to screen themselves from legal punishment
3. On the basis of the statement of the informant, Mukti Kumar Singh, P.W. 9, a case was registered under Sections 3/4 of Dowry Prohibition Act and Sections 302/201 of the Indian Penal Code against the two accused-appellants, Krishna Datta Mahto and his father, Ram Lakhan Mahto and investigation followed. The investigation of the case culminated in the submission of the charge-sheet against both the accused-appellants under Sections 304B, 398A and 201/34 of the Indian Penal Code. On commitment of their case to the Court of Session they were placed on trial before the learned Additional Sessions Judge-IV, Madhubani. Later on during trial the remaining 8 accused-appellants were also added to face trial along with already trial facing two accused-appellants. The appellants, Krishna Datta Mahto and Ram Lakhan Mahto, were charged under Sections 498A and 304B of the Indian Penal Code. The appellants, Jhameli Mahto and Baleshwar Mahto, were charged under Sections 304B/107 of the Indian Penal Code. All the 10 accused-appellants were charged under Section 302 of the Indian Penal Code and all of them were further charged under Sections 201/34 of the Indian Penal Code. Their trial ultimately ended in their conviction and sentence as indicated above.
4. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. In fact, the deceased, Lila Devi, died of diarrhoea and vomitting. She was hospitalised for treatment but of no effect. Their further specific defence is that Ramdular Singh, P.W. 1, the father of the deceased, Lila Devi, intended to marry his niece with the appellant, Krishna Datta Mahto which was not accepted by the appellants and hence the present false case.
5. On behalf of the prosecution 11 witnesses were examined to substantiate the charge against the appellants beyond all reasonable doubts. P.W. 1, Ramdular Singh, is the father of the deceased, Lila Devi. P.W. 2, Ramdeo Rai, is hearsay witness and he learnt about the occurrence from Mukti Kumar Singh, the informant, P.W. 9. P.W. 3, Sita Ram Singh and P.W. 4, Ramashish Singh, are the cousin brothers of the deceased P.W. 5, Jaleshwar Thakur, is the formal witness and has proved his signature and that of Narbdeshwar Singh Azad on the seizure list (Ext. No. 1). P.W. 6, Ramsakhi Devi is the witness of P.O. village. P.W. 7, Chaudhary Mahto, P.W. 8, Ram Pukar Mahto and P.W. 10, Ram Narayan Yadav, are the eye-witnesses to the occurrence, P.W. 9, Mukti Kumar Singh, is the brother of the deceased and the informant of this case. P.W. 11, Bishram Das, is the I.O. of this case.
6. The admitted position is that Lila Devi, daughter of Ram Dular Singh, P.W. 1, was married with the appellant, Krishna Datta Mahto on 25.5.1986 and within seven years of her marriage she died on 22.3.1988 in her Sasural. It is also established from the prosecution evidence that there was no demand for dowry in connection with her marriage with the appellant, Krishna Datta Mahto. After her marriage, the appellant, Krishna Datta Mahto, was appointed as a teacher in Girdhari Sanskrit High School on payment of donation of Rs. 15,000/- and the appellants demanded the amount from the prosecution side. This sort of demand for payment of donation by the appellants from the prosecution party was definitely unconnected with the demand for dowry.
7. The prosecution has attempted to establish that Lila Devi was subjected to harassment and torture for the satisfaction of the unlawful demand of donation payment of Rs. 15,000/-. On account of non-fulfilment of the demand of appellant, Krishna Datta Mahto committed the murder of Lila Devi with the help of his father-appellant, Ram Lakhan Mahto and her dead body was disposed of secretly by all the appellants.
Section 498A of the Indian Penal Code lays down that 'whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.' According to this section cruelty means:
(a) ..................
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
8. On this point we have got the evidence of P.W. 1, Ramdular Singh, P.W. 3, Sita Ram Singh and P.W. 4, Ramashish Singh, the cousins of the deceased and P.W. 9, Mukti Kumar Singh the informant.
The evidence of P.W. 1, Ramdular Singh, is that when his son-in-law, appellant, Krishna Datta Mahto, was appointed as a teacher in Girdhari Sanskrit High School on payment of donation of Rs. 15,000/- he demanded the amount from him. His daughter was being subjected to harassment and cruelty for the satisfaction of the demand. His daughter fled away from her Sasural and came to his house. He had seen the sign of injuries on her person. Thereafter on the intervention of one Dhaneshwar Mahto, Vidagari of her daughter was performed and she went to her Sasural house. For some time she passed her Sasural life peacefully but soon thereafter she was again subjected to harassment and torture. On 22nd March, 1988, his son informed him about the murder of his daughter and disposal of her dead body secretly in her Sasural house. On this information he came from his service place, Dhanbad and went to Khajauli police station. In cross-examination he has stated that his statement was recorded by the Officer Incharge of Khajauli Police Station and he put his signature thereon. Before that the police had already instituted a case on the basis of,the statement of his son, Mukti Kumar Singh, P.W. 9. His further evidence is that Dhaneshwar Mahto is the Samdhi of his brother and at his instance the panchayatee was held twice, once at his house and secondly at the house of the appellants. Ramdhani Mahto and Ranglal Mahto were the Panches. At para 6 he has stated that there was no demand by the accused persons at the time of negotiation of her marriage or second marriage, i.e., Gouna. At para 12, he has admitted to have given all the above statements before the I.O. of this case.
The evidence of P.W. 3, Sita Ram Singh and P.W. 4, Ramashish Singh, is that in the year 1987 when Lila Devi came to her parents' house they learnt from her that her husband demanded Rs. 15,000/- and threatened to kill her in case of non-satisfaction of the demand. Thereafter on the assurance of her fatherinlaw, she went to her Sasural. They came to know later on from one Ram Narayan Yadav that she was murdered there. In cross-examination, P.W 3, Sita Ram Singh, has admitted to have given this statement before the Investigating Officer of this case.
The evidence of P.W. 3, Sita Ram Singh and P.W. 4, Ramashish Singh, is that in the year 1987 when Lila Devi came to her parents' house they learnt from her that her husband demanded Rs. 15,000/- and threatened to kill her in case of non-satisfaction of the demand. Thereafter on the assurance of her father-in-law, she went to her Sasural. They came to know later on from one Ram Narayan Yadav that she was murdered there. In cross-examination, P.W- 3, Sita Ram Singh, has admitted to have given this statement before the Investigating Officer of this case.
P.W. 9 Mukti Kumar Singh, the informant has corroborated the evidence of his father, Raminder Singh, RW. 1, on the demand by the appellant, Krishna Datta Mahto of Rs. 15,000/- after his appointment as a teacher on donation of the said amount in Girdhari Sanskrit High School. He has stated that in the year 1987 his sister was brutally assaulted by the appellant, Krishna Datta Mahto and other family members as a result of which she fled away from there and came to his house. At that time the blood was oozing out from her head. Thereafter on the assurance of the appellant, Ram Lakhan Mahto that Lila Devi will not be harassed and tortured her Vidagari was performed and she went to her Sasural house. Thereafter, he went to see her twice/thrice in her Sasural but was not allowed to meet her. On 22nd March, 1988, an unknown person and Ram Narayan Yadav, RW. 10, informed that his sister was killed by pressing lathi on her neck. He has proved three letters of the appellant, Krishna Datta Mahto (Ext. Nos. 2 2/1 and 2/2). On receipt of this information about the murder of his sister he went to Police Station and lodged FIR. He has proved his signature on the statement (Ext. No. 3). In cross-examination he has stated that his further statement was never recorded by the I.O. and there was no panchayate whatsoever after the institution of the case. At para 10 his evidence is that after the appointment of the appellant, Krishna Datta Mahto, the amount was demanded by both the appellants, Krishna Datta Mahto and Ram Lakhan Mahto. He has admitted to have stated before the police all the details as contained in the FIR at the time of the institution of the case.
9. Now, on the point of murder and disposal of the dead body of the victim Lila Devi, there is evidence of RW. 6, Ramsakhi Devi, RW. 7, Choudhary Mahto, P.W. 8, Ram Pukar-Mahto and P.W. 10, Ram Narayan Yadav.
P.W. 6, Ramsakhi Devi, is the wife of P.W. 7, Choudhary Mahto. She has stated that her house is situated at a distance of 4 to 5 laggas from the house of the appellant, Krishna Datta Mahto. On the alleged date at about 7 a.m. she heard the outcry of Lila Devi 'Bachao-Bachao' but she did not go inside her Angan. Later on she learnt from Ram Pukar Mahto, P.W. 8 that: Lila Devi was killed and steps were being taken to burn her dead body. In cross-examination she has admitted to have given the above statements, before the police.
The evidence of P.W. 7, Chaudhary Mahto and his Bahalwan, Ram Pukar Mahto, P.W. 8 is that on the alleged date at about 8 a.m. they were going to see their fields. When they reached near the Darbaja of the appellant, Ram Lakhan Mahto they heard some hulla whereupon they went inside his Angan. They saw that the appellant, Krishna Datta Mahto, was assaulting Lila Devi with lathi and he dragged her down on the ground. Thereafter the appellant, Ram Lakhan Mahto, caught her leg and Budhi Devi and Paro Devi (not accused-appellants) both caught her hands. The appellants, Krishna Datta Mahto and Ram Datta Mahto caught one end and the appellants, Baleshwar Mahto and Jhameli Mahto, caught the other end of lathi and pressed the same on the neck of Lila Devi. Both these protested whereupon they were asked to leave the place of occurrence and they went out of the house. Their further evidence is that after two hours when they were returning from their fields and reached near the house of the appellant Ram Lakhan Mahto they saw the dead body of Lila Devi was taken by the accused-appellants near the ditch situated at a distance of 5 to 10 laggas and was burnt. Their further evidence is that they beat her 1/2 burnt dead body in to pieces, kept in gunny bag and threw in the river. P.W. 7, Chaudhary Mahto, has further stated that his house is situated at a distance of 5 lagga from the house of the appellant, Krishna Datta Mahto and even before the occurrence the deceased Lila Devi was subjected to assault by the appellants. In cross-examination at para 4 he has admitted to have given the aforesaid statements before the I.O. of this case. He has further stated that he has got a case with the accused-appellants, Chandeshwar Mahto and Jharneli Mahto. The wife of the appellant, Yugeshwar Mahto, Sila Devi, has lodged a criminal case against him in which the appellant, Yugeshwar Mahto, has deposed against him. At para 5 he has stated that he had not informed about the occurrence of murder of Lila Devi to Mukhia, Sarpanch, Chowkidar or any one. He has further stated that his house is situated in the east of the house of the appellant, Krishna Datta Mahto and there were houses on all sides of the house of the appellant, Krishna Datta Mahto. At para 7 he has stated that the neck of Lila Devi was pressed in the Angan and there was no bleeding either from her nose or mouth. He has further stated that he stayed in his Angan about 10 minutes and during that period no one had come there and there was no female member except Lila Devi. P.W. 8, Ram Pukar Mahto, has also admitted in his cross-examination to have given the above statements before the police. At para 4 his evidence is that he also figures as one of the accused along with his Malik, Choudhary Mahto, P.W. 7 in a case lodged by the appellant, Chandeshwar Mahto. At para 6 his evidence is that he along with Choudhary Mahto, P.W. 7, stayed about 15 minutes in the Angan of the appellant, Krishna Datta Mahto and during that period no one had come there. He has further stated that he had not seen any injury on any part of the body of Lila Devi. Blood was also not oozing out from nose, mouth or any part of the body of Lila Devi.
The evidence of P.W. 10, Ram Narayan Yadav, is that on the alleged date at the relevant hour he was going to his house from Marar. When he reached near the house of the appellant, Ram Lakhan Mahto he heard hulla. He went inside his Angan and saw that the appellants, Ram Lakhan Mahto and Krishna Datta Mahto, assaulted Lila Devi and thereafter committed her murder by pressing her neck with bamboo Farathi. He protested but of no effect and he went out of his Angan. Thereafter he informed the informant about the occurrence. It appears from his cross-examination that he was never examined by the police and gave his statement for the first time in this case in Court.
P.W. 11, Bishram Das, is the I.O. of this case. His evidence is that on 22.3.1988 while he was posted as Officer Incharge of Khajauli Police Station, he recorded the statement of the informant, Mukti Kumar Singh, P.W. 9 and a case was registered. He has proved the First Information Report (Ext. No. 5). He took up the investigation of the case and visited the first place of occurrence, the house of the appellant, Ram Lakhan Mahto and found nothing incriminating in connection with the case. He also visited the second place of occurrence, the bamboo clump of the appellant, Ram Lakhan Mahto, situated at a distance of 50 yards in the east of his house where the dead body was alleged to have been burnt. He found ashes in a ditch and the leaves pf bamboo trees. He seized the ashes and prepared seizure list in presence of the witnesses (Ext. No. 6). On completion of the investigation he submitted the charge-sheet. In cross-examination his attention was drawn to the statements of the witnesses examined in this case. Ramdular Singh, P.W. 1, had stated before him that after appointment as a teacher in Girdhari Sanskrit School on payment of donation of Rs. 15,000/- his daughter was being subjected to cruelty by her husband and father-in-law but he had not stated before him the other parts of the statements made in the Court. The witness Ramsakhi Devi, P.W. 6, has not stated before him that on the day of occurrence she had heard the outcry of Lila 'Bachao, Bachao'. The witnesses, Choudhary Mahto, P.W. 7 and Ram Pukar Mahto, had not given before him any part of the statements made in the Court. This witness was partly cross-examined on 29.8.1996 and his cross-examination was deferred but thereafter he did not turn up for his cross-examination.
10. On the other hand, the defence has also examined 4 witnesses. The evidence of Ramashish Singh, D.W. 1, is that Ramdular Singh, P.W. 1, wanted to marry his niece with the appellant, Krishna Datta Mahto and on the negation of the proposal this case was filed. His further evidence is that never there was any panchayatee in his presence in between the parties. In cross-examination he has admitted that there is a Girdhari Sanskrit School in his village. Fekan Mahto, is the Chairman, Baleshwar Singh Bharti, is Secretary and he is a teacher. The appellant, Krishna Datta Mahto, was never appointed as a teacher in that school. D.W. 2 is Rajendra Yadav. His evidence is on the point of relationship in between Choudhary Mahto, P.W. 7 and Ramdular Singh, P.W. 1. His evidence is that the daughter of brother-in-law of Choudhary Mahto, P.W. 7 was married in the house of Ramdular Singh. D.W. 3, Janki Nandan Singh, is a formal witness and has proved the out door register of Primary Health Centre (Ext. No. C Series). D.W. 4, is Raj Lal Singh. His evidence is that on hearing that the daughter-in-law of his maternal uncle was suffering from diarrhoea and vomitting, he went to Health Centre and saw her there in that condition. She was alive at that time but after some time she died. In cross-examination he has stated that the appellant, Jhameli Mahto, is his Samdhi, Besides this the defence has also brought some documentary evidence to show animosity in between the appellants and the prosecution witnesses, P.W. 7, Choudhary Mahto and his Bahalwan, P.W 8, Ram Pukar Mahto.
11. Thus, the prosecution has relied upon the evidence of the eye-witnesses to the occurrence and also of P.W. 1, Ram Dular Singh and P.W. 9, Mukti Kumar Singh.
The evidence of P.W. 1, Ramdular Singh, the father and P.W. 9, Mukti Kumar Singh, the brother of Lila Devi, indicates that after her marriage the appellant, Krishna Datta Mahto, was appointed as a teacher in Girdhari Sanskrit High School on payment of donation of Rs. 15,000/- and then the appellants demanded the said amount from the prosecution side. On account of non-fulfilment of the demand, Lila Devi was subjected to torture and harassment by them and ultimately she was done to death and her dead body was disposed of secretly by the appellants. The evidence of D.W. 1, Ramashish Singh, reveals that he is a teacher in Girdhari Sanskrit High School in his village in which the appellant, Krishna Datta Mahto, was never appointed as a teacher, besides Fekan Mahto is the Chairman and Baleshwar Singh Bharti, is Secretary in that school. The prosecution failed to bring any documentary or ocular evidence on record to show that the appellant, Krishna Datta Mahto, was ever appointed as a teacher in Girdhari Sanskrit High School on payment of donation of Rs. 15,000/-.
Now, on the point of actual occurrence of murder I find that the eye-witnesses, P.W. 7, Choudhary Mahto, P.W. 8, Ram Pukar Mahto and P.W. 10, Ram Narayan Yadav, have sharply contradicted each other with regard to the manner of occurrence. According to P.W. 7, Choudhary Mahto and P.W. 8, Ram Pukar Mahto, when they reached near the Darwaja of the appellant, Ram Lakhan Mahto, they heard some hulla. At this they went inside his Angan and saw that the appellant, Krishna Datta Mahto, was assaulting his wife, Lila Devi, with lathi. He dragged her down on the ground. Their further evidence is that thereafter the appellant, Ram Lakhan Mahto, caught her leg and Budhi Devi and Paro Devi (not accused-appellants) both caught her hands. The appellants, Krishna Datta Mahto and Ram Datta Mahto caught one end and the appellants, Baleshwar Mahto and Jhameli Mahto caught the other end-of lathi and pressed the same on the neck of Lila Devi as a result of which she died. Their further evidence is that the dead body of Lila Devi was taken by them near the ditch situated at a distance of 5 to 10 laggas from the house of the appellant, Krishna Datta Mahto and was burnt. Thereafter they beat her 1/2 burnt dead body into pieces, kept in gunny bag and threw the same in the river. The evidence of P.W. 10, Ram Narayan Yadav, shows that on hulla when he went inside the house of the appellant, Ram Lakhan Mahto, he saw that the appellants, Ram Lakhan Mahto and Krishna Datta Mahto assaulted Lila Devi and thereafter committed her murder by pressing her neck with bamboo Farathi. This witness has not uttered even single word about the involvement of other appellants in the commission of murder of Lila Devi. Further according to this witness both the appellants, Krishna Datta Mahto and Ram Lakhan Mahto, pressed the bamboo Farathi on the neck of Lila Devi and committed her murder whereas according to the evidence of P.W. 7, Choudhary Mahto and P.W. 8, Ram Pukar Mahto, the appellants, Krishna Mahto, Ram Lakhan Mahto, Baleshwar Mahto and Jhameli Mahto pressed the lathi on the neck of Lila Devi as a result of which she died. Thus, these witnesses have not only lied about the manner of occurrence but have also mutilated the truth with regard to the number of assailants of the deceased, Lila Devi. Further, P.W. 7, Choudhary Mahto and P.W. 8, Ram Pukar Mahto, admitted in their evidence that they are fighting the cases against the accused-appellants, Chandeshwar Mahto and Jhameli Mahto. It finds blood from Ext. No. A (Certified copy of Plaint of Title Suit No. 4/72) Choudhary Mahto, P.W. 7 and Ors. v. Chandeshwar Mahto appellant and Others, Ext. No. B (certified copy of the written statement in Title suit No. 4/72), Ext. No. D/2 (certified copy of deposition of Yugeshwar Mahto, appellant in a criminal case lodged by one Shila Devi against the witness, Choudhary Mahto and Others) and Ext. No. E (certified copy of the FIR of the case lodged by Shila Devi). It appears that both the witnesses are not only 'highly interested in the prosecution but have also inimically deposed towards the appellants.
12. Thus, there is no credible evidence on the record to bring home the charges against the appellants beyond all reasonable doubts and the Trial Court committed an error in convicting the appellants on the basis of the unbelievable prosecution evidence.
13. In the result, I allow the appeals, set aside the conviction of the appellants and acquit them of the charges levelled against them. The appellant, Krishna Datta Mahto, is in custody, so he shall be set at liberty at once, if not wanted in any other case. The appellants; 1. Bimal Kumar Mahto @ Bimal Mahto, 2. Bijay Kumar Thakur, 3. Jhameli Mahto, 4. Chandeshwar Mahto, 5. Yugeshwar Mahto @ Juge Mahto, 6. Baleshwar Mahto, 7. Teji Lal Mahto, 8. Ram Lakhan Mahto and 9. Ram Datta Mahto, are on bail, so they are discharged from the liability of their executed bail bonds.
Anil Kumar Sinha, J.
14. I agree.