The prosecution must establish basic facts before invoking Section 106 of the Evidence Act; failure to do so results in the benefit of doubt for the accused.

JUDGMENT :

(Ashutosh Kumar, J.)

We have heard Mr. Kumar Uday Singh, the learned Advocate for the appellant and Mr. Abhimanyu Sharma, the learned APP for the State.

2. The appellant has been convicted under Section 302 of the Indian Penal Code, vide judgment dated 19.04.2016 passed by the learned Additional District & Sessions Judge-II, Katihar in Sessions Trial No. 333 of 2012 arising out of Manihari P.S. Case No. 167 of 2011. By order dated 21.04.2016, he has been sentenced to undergo imprisonment for life, to pay a fine of Rs.5,000/-and in default of payment of fine, to further suffer S.I. for three months for the offence under Section 302 of IPC.

3. The deceased/Parwati Devi was allegedly killed at the hands of her husband/appellant and other in-laws on 25.10.2011 in her house. She had been married to the appellant for eight years and had given birth to two daughters, who are still residing with the appellant. The information about the killing of the deceased was first received by Nandlal Sharma, her brother who has been examined as P.W. 6 at the trial. He lodged the FIR on 25.10.2011 at about 01:20 P.M. alleging that on 24.10.2011, when he had met his sister, she had disclosed that she was being ill-treated by her in-laws and the appellant. They had threatened her that she would be killed one day. After meeting his sister, P.W. 6 went back home. In the morning of 25.10.2011 at about 7.00 O’ Clock in the morning, he was informed by a villager that his sister has been killed. He wanted to immediately rush to the matrimonial home of the deceased but was prevented from doing so for about an hour. Later, when he went to the matrimonial home of the deceased, he found her lying dead. The persons of the neighbourhood, were lamenting that the accused persons ought not to have done this to the hapless lady. He has also alleged in the FIR that his sister was always troubled for not bringing sufficient dowry from her home. The aforenoted fardbeyan/statement was given by P.W. 6 in presence of one Madan Yadav, a co-villager.

4. On the basis of the aforenoted statement, Manihari P.S. Case No. 167 of 2011 dated 25.10.2011 was registered for investigation under Section 302/34 of the IPC against the appellant and others.

5. Though nothing has been recorded in the judgment impugned but Mr. Kumar Uday Singh, learned Advocated has informed this Court that the trial of other accused persons was separated and the parents of the appellant ultimately died. The sister-in-law of the deceased is presently facing trial for the offence of killing the deceased.

6. The charge under Section 302 of the IPC was framed against the appellant. The Trial Court, after having examined eight witnesses on behalf of the prosecution, convicted and sentenced the appellant as aforesaid.

7. Out of the aforenoted eight witnesses referred to above, Heera Ravidas and Jaiprakash Ravidas (P.Ws. 1 and 2 respectively) have been declared hostile; whereas Sekhar Singh and Pradip Kumar Rai (P.Ws. 3 and 8 respectively) are only formal in nature.

8. The only evidence before the Trial Court was the deposition of the parents of the deceased and the informant, who is the brother of the deceased.

9. Motilal Sharma (P.W. 4) has supported the prosecution case but has stated that for about 5–6 years the deceased lived happily in her matrimonial home. He was informed about the murder by his son Nandlal Sharma (P.W. 6). He admitted the fact that the deceased had given birth to two daughters, both of whom are residing with the appellant.

10. With respect to demand of dowry, a general and vague statement was made by him that the appellant had come to his house for demanding additional dowry. He has further told the Trial Court that he and the appellant, both, are very poor.

11. Nothing substantial was offered by the aforenoted witness; especially with respect to the immediate cause of the deceased having been strangulated to death.

12. Similar statements have been made by Domni Devi (P.W. 5)/m