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Suman Jha & Ors vs State Of Bihar on 6 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.82 of 1995
Arising out of judgment and order dated 25.04.1995 passed by learned 4 th Additional
Sessions Judge, Madhubani in Sessions Trial No. 100 of 1993/12 of 1993.

1. Suman Jha son of Arun Kumar Jha (died)

2. Arun Kumar Jha son of Late Jaideo Jha

3. Prabha Devi alias Bijali, wife of Arun Kumar Jha
All are residents of Village Birpur, Police Station Basopatti, District Madhubani
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ajay Thakur, Advocate
Mr. Anjani Kumar No.1
Mr. Dr.Anjani Prasad Singh
Mr. Nilesh Kumar
Mr. Kartik Kumar Sinha
Mr. Murari Narain Choudhary

For the Respondent/s : Mr. Abhimanyu Sharma, A.P.P.

CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 06-04-2018

There are three appellants in the present Criminal Appeal

who moved this Court for setting aside the judgment dated 25 th April,

1995 passed by learned 4th Additional Sessions Judge, Madhubani

(hereinafter referred to as the learned „trial court‟) in Sessions Trial

No. 100 of 1993/12 of 1993, by which the learned trial court held the

accused Suman Jha, Arun Kumar Jha and Prabha Devi @ Bijali

guilty for commission of offence punishable under Sections 304B/34,

201 and 498A of the Indian Penal Code. During the pendency of this
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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appeal Suman Jha, appellant no. 1, who was on bail by virtue of order

dated 03.06.1999 died. An affidavit to this effect enclosing his death

certificate has been filed which is kept on the record, therefore, this

appeal in so far as it relates to appellant no. 1 stands abated.

The prosecution case is based on the written report dated

13.02.1991 submitted by one Vivekanand Jha (PW 7) who alleged

that his sister Marni Devi was married with Suman Jha (appellant no.

1) in May, 1990. At the time of her duragaman (bidai), appellant no.

1 demanded one television and a Rajdoot motor cycle, the informant

told him that he is not having this much financial capacity to fulfill

the demand. He further told the appellant no. 1 that as and when he

will be in a position to fulfill the demand it will be looked into. The

informant (PW 7) has further stated that his sister was regularly

telling her father and mother that she would be killed for non-

fulfillment of the demand of television and motor cycle. This is what

her sister was being told by the accused persons. The informant

alleged that in the first night on 12.02.1991 he got an information that

his sister Marni Devi has been killed by his brother-in-law (appellant

no. 1), Arun Kumar Jha who is father of appellant no. 1, and the wife

of Arun Kumar Jha. It is alleged that his sister was shot dead and the

dead body was concealed somewhere. He allegedly enquired about

the occurrence by visiting Village Birpur, Tola Loharpatti. On the
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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basis of the written report (Ext. 4), a formal F.I.R. (Ext. 5) was

registered giving rise to Basopatti PS Case No. 002 of 1991.

After investigation, police submitted a charge-sheet and

cognizance was taken accordingly. Thereafter, the records were

committed to the court of sessions where charges were framed

against all the accused persons under Sections 304B/34, 201 and

498A, IPC.

On behalf of the prosecution as many as 10 witnesses

deposed whereas the defence examined 3 witnesses. The learned trial

court found that out of all the Prosecution Witnesses, it is evidence of

Vivekanand Jha (PW 7) who is the informant, he is the brother of the

deceased and son of Kameshwar Jha. PW 8 is Binodanand Jha who is

also the brother of the informant and deceased Marni Devi. PW 9 is

Kameshwar Jha, father of PW 8 which are reliable for conviction of

all the accused. PW 10 is Shree Bhagwan Singh who is the

Investigating Officer of the case. Seizure list of ashes, burnt wooden

piece, and blood-stained pieces of dhoti has been marked as Ext. 1.

Another seizure lists are Ext. 1/A, Ext. 2 and Ext. 2/1 respectively.

There are seizures of different letters marked Ext. 3 series. The

different letters purported to be written by Marni Devi to her father

Kameshwar Jha is Ext. 6 series. The report of forensic medicine is

Ext. 7.

Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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According to the prosecution case, it is Shobha Kant

Thakur @ Shobhi Thakur (PW 6) who first of all came to know about

the murder of Marni Devi. He is said to have informed PW 7. In his

deposition, he has stated that while he was returning on 13.02.1991 at

about 3.45 PM from Village Joki and had reached at Birpur Chowk,

in a tea shop he heard some persons talking that Marni Devi, the wife

of Suman Jha was murdered by Arun Jha and Suman Jha with fire-

arm. Then he went to the house of Arun Jha, enquired about Marni

Devi on which he was told that Marni Devi was ill and Suman Jha

had brought her to hospital. He came to the house of his son-in-law

(PW 7), met PW 7, and Uday Narain Jha, Pashupati Jha, Shivram Jha

and Kuseshwar Jha and then he told them that Suman Jha, Arun Jha

and the wife of Arun Jha had murdered Marni Devi. They all came to

the house of Arun Jha, on interrogation Arun Jha told them that

Marni Devi committed suicide. This witness has further stated that

Suman Jha had told them that Marni Devi had committed suicide by

setting herself on fire, whereas Arun Jha told that Marni Devi had

committed suicide by strangulation by rope. He has further stated that

wife of Arun Jha had told that Marni Devi had died of cholera. This

witness has also said that when he entered into the room of Marni

Devi, he did not find any fire or rope but the hook of the door plank

was freshly broken. On being questioned as to why he killed Marni
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devi, the accused Arun Jha is said to have confessed the guilt and

begged apology and told that he would return the entire things of

Marni Devi to her father.

The learned trial court accepted the submission of the

defence that PW 6 has not disclosed about the name of the tea shop

and the identity of the persons who were talking about the murder of

Marni Devi and so under Section 60 of the Evidence Act this part of

evidence is hit by hearsay, but the other part of the evidence,

according to the learned trial court, cannot be discarded because the

accused persons are also the relations of PW 7 and in a case of dowry

death by husband and in-laws, generally, the relations of the deceased

woman come for adducing evidence. The learned trial court found

that PW 4 is the uncle of PW 7 who has supported the evidence of

PW 7 and PW 3 to the effect that PW 6 had given information about

the murder of Marni Devi and thereafter they went to the house of the

accused persons and interrogated from the accused persons regarding

the murder of Marni Devi but they gave different reply concerning

the death of Marni Devi.

PW 10 is the Investigating Officer of the case who has

stated in his evidence that on 13.02.1991 he received the first

information regarding the murder of Marni Devi from PW 7, then he

instituted the case and took up the investigation and also recorded
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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the statement of PW 7. He had visited the house of the accused in the

night and had also inspected the room in which it was reported that

Marni Devi was living. He had found that the ground of the room was

freshly washed with dung in the flash of light. He had also taken

charge of one broken hook and he tallied it with the attached broken

hook of the door and found that a separate broken hook was the part

of the attached broken hook and then he seized it. He has further

stated that accused persons were not present at their house at that

time. He had inspected the cremation place at Bachhbara river and

seized ashes, soil, burnt wooden pieces and shari having blood mark.

He has further stated that he smelt the smell of kerosene oil at the

cremation place. The three letters which have been exhibited as Ext.

6, 6/1 and 6/2 have been discussed by the learned trial court, Ext. 6

shows that it had been written by PW 9 from Calcutta Hind Motor

Company on 07.11.1990. The letter indicates that Marni Devi had

written the letter by which she had informed that her husband was

demanding motor cycle and television and her husband was also

giving threat to her if his demand would not be fulfilled. Ext. 6/2 is

another letter said to have been written by Marni Devi to her father to

convey a message that her husband was demanding motor cycle and

television and the same was made the pre-condition for her

duragaman. The learned trial court rejected the contention of the
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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defence that Marni Devi was illiterate and the letters Ext. 6 and Ext.

6/2 were forged. The learned trial court in the concluding part of its

judgment recorded a finding that there is no direct evidence on the

point that Marni Devi was murdered with which weapon but the

different stories set up by the accused persons regarding death of

Marni Devi, the different statements of the accused persons regarding

the manner of cremation and place of cremation, darkness in the

house of the accused persons, absence of the accused persons from

their house at the time of inspection of their house by the I.O.,

according to the learned trial court, these circumstances suggest that

Marni Devi had not died due to cholera rather it creates suspicion

with regard to the conduct of the accused persons. The learned trial

court further held that it is quite apparent from the evidence of PWs

7, 8 and 9 as well as other material witnesses that the accused persons

did not give any information to PWs 7, 8 and 9 regarding the death of

Marni Devi. This circumstance, according to the learned trial court,

also creates doubt in the conduct of the accused persons. For all these

reasons the learned trial court convicted the accused persons as stated

above.

In appeal, learned counsel representing the appellants

Arun Jha and Prabha Devi, submits that the learned trial court has

convicted both the appellants without there being any evidence much
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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less any evidence beyond all reasonable doubts. Pointing out the

deposition of the informant (PW 7) learned counsel submits that in

his examination-in-chief, this witness who is the most important

witness for the prosecution has not stated that his brother-in-law had

demanded T.V. and motor cycle at the time of duragaman. He has

stated what he was told by his father-in-law Shobha Kant Thakur

(PW 6) that his sister had been killed because he had not given the

dowry of motor cycle and T.V. It is further pointed out that when the

informant himself went inside the room of his sister he did not find

any sign of burning or sign of her suspending herself by a rope. He

alleged that his sister was shot dead but learned counsel submits that

the Investigating Officer did not find any firm arm in the house nor

any blood was found in the house of the appellants. Learned counsel

further submits that the I.O. prepared a seizure list showing seizure of

bone and bangles but no scientific test such as D.N.A. test was

conducted to find out that the seized bone and bangles had any

connection with the deceased. It is further submitted that the learned

trial court has wrongly relied upon Ext. 6, 6/1 and Ext. 6/2 taking

them as letters written by Marni Devi and her father because there

was no proof of handwriting of Marni Devi and no scientific test was

conducted in this regard.

On the other hand, learned A.P.P. representing the State
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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submits that the learned trial court has rightly relied upon the

deposition of Prosecution Witnesses and recorded a finding that the

accused persons have committed the offence as alleged.

We have heard learned counsel for the appellants as also

learned A.P.P. representing the State and have perused the materials

available on the record. The learned trial court has itself recorded that

there is no direct evidence on the point that Marni Devi was

murdered with which weapon but then for the circumstances narrated

by the learned trial court in the impugned judgment a view has been

taken that Marni Devi did not die due to cholera. The trial court got

suspicious about the conduct of the accused persons and then relying

upon the evidence of PWs 7, 8 and 9 as also the extra-judicial

confession of the accused persons before PWs 6, 7, 3 and 4 regarding

the murder of Marni Devi concluded that it proves the guilt of the

accused persons. These two appellants who are father-in-law and

mother-in-law, respectively, have also been convicted under Section

304B/34, 201 and 498, IPC by taking into consideration the

aforementioned evidence.

We have examined the evidence of PW 7 hereinabove. PW

7 and PW 8 are own brothers. PW 8 has stated that when he visited

the house of Marni Devi on 06.02.1991, he had not talked to the

mother of Suman Jha and had not questioned her as to why they are
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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torturing Marni Devi. In his deposition also, we do not find any

allegation of demand of dowry by these two appellants and we are

further unable to accept the story made out by PW 8 that he had

visited Birpur on 06.02.1991 where he had met Marni Devi and

Marni Devi had handed over a letter to him which has been marked

as Ext. 6/1. PW 8 did not disclose this to any independent person

about what he could notice on 06.02.1991. The allegation of torture

or demand of dowry against these two appellants cannot be believed

once we peruse the letter Ext. 6/1 and Ext. 6/2, these letters which

were exhibited in course of trial. The contents of these letters are not

clear. Despite the fact that the defence raised a specific plea that

Marni Devi was illiterate and these letters have been forged, the

prosecution did not take any step to get the handwriting of Marni

Devi examined scientifically through forensic expert. The benefit of

doubt, in such circumstance, will go in favour of the present

appellants. In the written complaint, the informant (PW 7) has

specifically stated that his brother-in-law Suman Jha had demanded

the T.V and Rajdoot motor cycle, there is no allegation at all in the

written report that the father-in-law and mother-in-law of Marni Devi

were also demanding dowry and/or they have ever threatened to kill

Marni Devi in case of non-fulfillment of the demand of dowry. Even

in his deposition in course of trial PW 7 has not come out with
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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specific allegation against these two appellants. There are defence

witnesses who have deposed on behalf of the defence and have

deposed that the letters Ext. 6/1 and 6/2 respectively brought by

prosecution have been written by two different persons. Ext.A has

been proved by one Shivendra Nath Mishra (DW 1) who is said to be

an expert in examination of handwriting. DW 2 has proved the

negatives of two photographs of Ext. 6/1 and 6/2, respectively. DW 3

is Pawan Kumar Jha who has stated that Marni Devi had died due to

vomiting and at the time of shradh rituals her brother had come. This

witness had deposed that the brother of Marni Devi was demanding

the ornaments and shari as also other articles of Marni Devi on which

Arun Jha told him that after the shradh all the articles will be

returned, thereafter the informant left the house of Arun Jha and

lodged the present case. The statement of the present appellants

recorded in the trial under Section 313, Cr.PC would show that they

were not informed of the incriminating materials which were brought

by the prosecution in course of evidence. As usual, they were asked

two questions about the allegation against them which they denied.

In the given facts and evidence which are available on the

record we find that the learned trial court has convicted these two

appellants being father-in-law and mother-in-law, respectively, only

on suspicion. It is well settled that suspicion cannot take place of the
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proof beyond all reasonable doubts.

On perusal of the evidences we have found that the

prosecution has not been able to prove participation of these two

appellants who are father-in-law and mother-in-law, respectively, in

the matter of either demand of dowry or on the point of committing

any act of torture. The prosecution has also not been able to prove

their active participation in the matter of alleged occurrence of

disposal of the dead body of the deceased. Recently, in the case of

Kuna vs State of Odisha reported in (2018) 1 SCC 296, while dealing

with an appeal arising out of conviction under Section 302 read with

Section 34, IPC the Hon‟ble Supreme Court had occasion to consider

as to when a fact is said to be “proved”, “disproved” or “not proved”.

Referring to the earlier judgment rendered by Hon‟ble Apex Court in

the case of Lokeman Shah vs. State of West Bengal reported in

(2001) 5 SCC 235, the Hon‟ble Supreme Court reproduced

paragraph-17 of the judgment and we quote the same hereunder:-

“17. A fact is said to be proved when, after considering the
matters before it, the court either believes it to exist or considers its
existence so probable that a prudent man ought under the
circumstances of a particular case, to act upon the supposition that it
exists (vide
Section 3 of the Evidence Act). What is required is
materials on which the court can reasonably act for reaching the
supposition that a certain fact exists. Proof of the fact depends upon
the degree of probability of its having existed. The standard required
for reaching the supposition is that of a prudent man acting on any
important matter concerning him……”

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Further, on the concept of “reasonable doubt” and the

standard of “burden of proof” the Hon‟ble Supreme Court extracted

paragraph-28 from the judgment in the case of Vijayee Singh vs.

State of U.P. reported in (1990) 3 SCC 190. We reproduce

paragraph-28 from the judgment of Vijayee Singh (supra) which

reads as under:-

“28. It can be argued that the concept of ‘reasonable doubt’ is
vague in nature and the standard of ‘burden of proof’ contemplated
under
Section 105 should be somewhat specific, therefore, it is
difficult to reconcile both. But the general principles of criminal
jurisprudence, namely, that the prosecution has to prove its case
beyond reasonable doubt and that the accused is entitled to the
benefit of a reasonable doubt, are to be borne in mind. The
‘reasonable doubt’ is one which occurs to a prudent and reasonable
man.
Section 3 while explaining the meaning of the words “proved”,
“disproved” and “not proved” lays down the standard of proof,
namely, about the existence or non-existence of the circumstances
from the point of view of a prudent man. The section is so worded as
to provide for two conditions of mind, first, that in which a man feels
absolutely certain of a fact, in other words, “believe it to exist” and
secondly in which though he may not feel absolutely certain of a
fact, he thinks it so extremely probable that a prudent man would
under the circumstances act on the assumption of its existence.
The
Act while adopting the requirement of the prudent man as an
appropriate concrete standard by which to measure proof at the same
time contemplates of giving full effect to be given to circumstances
or condition of probability or improbability. It is this degree of
certainty to be arrived where the circumstances before a fact can be
said to be proved. A fact is said to be disproved when the court
believes that it does not exist or considers its non-existence so
probable in the view of a prudent man and now we come to the third
stage where in the view of a prudent man the fact is not proved i.e.
neither proved nor disproved. It is this doubt which occurs to a
reasonable man, has legal recognition in the field of criminal
disputes. It is something different from moral conviction and it is
also different from a suspicion. It is the result of a process of keen
examination of the entire material on record by ‘a prudent man’.”

In the present case, we are of the considered opinion that

the prosecution has not been able to bring home guilt of the
Patna High Court CR. APP (DB) No.82 of 1995 dt.06-04-2018

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appellants no. 2 and 3 beyond all reasonable doubts either on the

point of demand of dowry or torture or on the point of their

participation in the concealment or disposal of the dead body of the

deceased. The investigation also lacks on scientific aspect of the

matter, the benefit of such discrepancies in investigation would go to

the present appellants.

In the result, the appeal is allowed, conviction of these

appellants is set aside and the appellants are discharged from their

liability of bail bonds.

(Rajeev Ranjan Prasad, J)

Rajendra Menon, I agree.
C.J.

(Rajendra Menon, CJ)

mrl./-

AFR/NAFR NAFR
CAV DATE 22.03.2018
Uploading Date 07.04.2018
Transmission 07.04.2018
Date

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