The conviction of the appellant was overturned due to insufficient evidence, with reliance on the testimony of an incompetent child witness and failure to prove charges beyond reasonable doubt.

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)

Date: 06-04-2018

Heard learned counsel for the appellant, Mrs. Proniti Singh, learned Amicus Curiae and learned APP for the State on this criminal appeal.

2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 25.06.2012 and order of sentence dated 26.06.2012 passed by Adhoc Additional District and Sessions Judge-II, Sheikhpura in Sessions Trial No. 722 of 2011 arising out of Ariari P.S. Case No. 106 of 2010, whereby the learned trial court convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment (R.I.) for life and slapped him with fine of Rs. 5000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for one year in addition to the substantive sentence of imprisonment .

3. Factual matrix of the case is that Ariari P.S. Case No. 106 of 2010 was instituted under Section 302 /34 of the Indian Penal Code against Bharat Sao and Kameshwar Sao on the basis of the fardbeyan of Mita Devi, wife of Indradeo Sao recorded by S.I. Ashok Kumar Yadav S.H.O. P.S. Ariari on 09.07.2010 at 07:30 AM at village Bhojdih with the allegation in succinct that the informant had performed marriage of her daughter Jai Pati Devi with Bharat Sao of village Bhojdih about ten years back. She was blessed with two daughters and one son out of the aforesaid wedlock. Her son-in- law was unemployed poor person. He used to vend tikuli and sindur as hawker and hardly could meet the need of his family. Her daughter persistently insisted him to earn more money by doing some other work whereupon he used to sulk and thrash her. On making complaint to her by her daughter about the same, she used to pay visit to marital house of her daughter and persuade her daughter and son-in-law, but there was no change in the nature of her son-in-law and he continued to thrash her off and on. Further allegation is that on 09.07.2010 in the morning, she got information about murder of her daughter. Responding the same, she rushed to the marital house of her daughter along with her family members and found the dead body of her daughter in the courtyard of her house. Her face was smeared with the blood. On making enquiry, she learnt that her son- in-law Bharat Sao and his father Kameshwar Sao have eliminated her daughter by assaulting her by means of brick in the night. Both were found absconding from the house.

4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet under Sections 498A and 302 of the Indian Penal Code against the aforesaid accused Bharat Sao showing the accused Kameshwar Sao as not sent up.

5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in the seisin of Adhoc Additional District and Sessions Judge-II, Sheikhpura for trial.

6. Charge against the accused was framed under Sections 498A and 302 of the Indian Penal Code . Charges weres read over and explained to him to which he pleaded not guilty and claimed to be tried.

7. To substantiate its case, in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Virendra Prasad as PW-1, Dhirendra Kumar as PW-2, Anil Kumar as PW-3, informant Meeta Devi as PW-4, Radha Kumari as PW-5, Maksudan Sao as PW-6, Ashok Kumar Yadav as PW-7, Dr. Sudhir Kumar who conducted the autopsy of the cadaver of the deceased as PW-8 and Dr. Md. Faizuddin, one of the member of th