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Ajay Singh @ Pappu & Ors vs State Of Bihar on 16 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.63 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA

1. Ajay Singh @ Pappu, son of Ram Anugrah Singh (since dead)

2. Ram Anugrah Singh, son of Late Ram Das Singh (since dead)

3. Phulbaso Devi @ Asha Devi, wife of Ram Anugrah Singh (since dead)

4. Punam Kumari, daughter of Ram Anugrah Singh, all residents of Bawak, P.S.
Punpun, District Patna
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : M/S Kunal Tiwary, Anupam Ran Aniket
Singh, Advocates
For the Respondent/s : Mr. S.A.Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 16-08-2018

This appeal is directed against the judgment and order dated

15.1.2003 passed by Sri Nirmalesh Chandra Lala, the then Ad hoc

Sessions Judge, Presiding Officer, Additional Court No.2, Patna in

Sessions Trial No. 71 of 1991/446 of 2001 by which the appellants

have been convicted under Section 306 IPC and sentenced them to

undergo rigorous imprisonment for three years under Section 306 IPC

and a fine of Rs.1000/- each with default clause.

2. During the pendency of the appeal, a report was called for

from the Senior Superintendent of Police, Patna regarding life status

of the appellants and from perusal of the report it appears that

appellant Nos. 1, 2 and 3, namely, Ajay Singh, Ram Anugrah Singh
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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and Fulbaso Devi have died and as such the appeal against them

stands abated and now the appeal relates to only one appellant, who is

appellant No.4 Punam Kumari, who is alive.

3. Prosecution case as per the fardbeyan of Sobha Kumari,

sister of deceased, in short, is that her sister Prabha Kumari was

married to appellant Ajay Kumar Singh on 23.5.1986 and after

marriage she went to her ‘sasural’ and thereafter she came to her

father’s place and deceased had no child from the marriage. Further

prosecution case is that on the occasion of Deo jethan her father had

gone to village Bauk to meet her sister Prabha Devi and on returning

from there he was informed that the members of her sister’s sasural

had been harassing her and pressurizing her to get the informant

married to Arun Kumar, brother of appellant Ajay Kumar and as

Prabha Devi did not agree to the marriage, they had been abusing and

assaulting her. Further prosecution case is that in the month of Falgun

on account of torture of her in-laws she fled away from her sasural

and came to Akauna and informed them that the accused appellants

always abused and assaulted her and accused persons also did not

come to take her back and hence one day prior to the last Ramnavami,

on Sunday deceased Prabha Devi herself went to her sasural and

thereafter on 4.4.1990 one Upendra Singh of her village came to the

informant’s house and informed that Prabha Devi had burnt herself
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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and on getting such information, the informant along with her mother,

aunt, uncle and villager reached Potahi Railway Station, and by that

time 2 P.G. had arrived at that station, and her sister had already been

kept in brake van on a cot for taking her to Patna and one Umesh

Singh of village Potahi assisted the informant and others in boarding

the compartment adjacent to the brake van but she hurriedly got down

and boarded the brake van to see her sister and saw that her sister was

lying on a cot and was badly burnt and was asking for water. On

enquiry, deceased Prabha Devi told her that on Monday she was not

given food and during night of occurrence her husband, father-in-law,

mother-in-law and sister-in-law (Nanad), all assaulted her and as the

torture was unbearable, she herself set her on fire. It is further alleged

that when the train reached at Patna Railway Station, her sister

complained of pain in abdomen and told that she would not survive

and blood was started oozing out from her mouth. Prabha Devi

(deceased) reached P.M.C.H., Patna at about 10.30 A.M. and doctor

examined her and informed that she had sustained 90% burn injury

and there was no chance of survival and after one hour of her arrival

she died.

4. On the basis of aforesaid fardbeyan, Punpun P. S.Case No.

36 of 1990 was registered. Post investigation charge sheet has been

submitted, cognizance of the offence has been taken and after
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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commitment the case ultimately traveled to the file of Sri Nirmalesh

Chandra Lala, the then Ad hoc Sessions Judge, Presiding Officer,

Additional Court No.2, Patna for trial and disposal.

5. In order to establish its case, the prosecution has examined

the following witnesses : PW 1 Dharmendra Kumar, villager, PW 2

Bijendra Singh, father of deceased, PW 3 Suresh Singh, uncle of

deceased, PW 4 Urmila Devi, mother of deceased, PW 5 Sbhoba

Kumar, sister of deceased and informant, PW 6 Upendra Singh,

villager who is said to have informed the father of deceased about

burning of the deceased, PW 7 K.K. Tiwari, A.S.I. of Police, who had

investigated the U.D. case, PW 8 Dr. Arbind Kumar Singh, who had

conducted the post mortem of deceased Prabha Devi and PW 9

Rameshwar Mishra, I.O. of the case.

6. Apart from that the following documents have been

brought on record on behalf of prosecution as exhibits, they are Ext.1-

letter dated 16.2.1986 of Ram Anugrah Singh, Ext.1/1- letter dated

1.10.1986 of Ram Anugrah Singh, Ext.2- signature of Shobha Kumar

on fardbeyan, Ext.2/1- signature of Vijyendra Singh on fardbeyan,

Ext.3- carbon copy of fardbeyan, Ext.4- carbon copy of inquest report,

Ext.5- carbon copy of challan, Ext.6- endorsement of Rameshwar

Mishra, O.C, Punpun on fardbeyan, Ext.7- carbon copy of seizure list

and Ext.8- post mortem report.

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7. On behalf of defence also five witnesses have been

examined, they are DW 1 Mahendra Thakur, DW 2 Rajesh Singh,

DW 3 Lal Behari Das, DW 4 Ramashis Paswan and DW 5 Kashi

Prasad mainly on the point that the relationship between the deceased

and her in-laws was cordial and while she was preparing breakfast in

the morning of 4.4.1990 her clothes caught fire, due to which she was

badly burnt and became unconscious and was taken to Dr. Satendra

Babu and later on carried to Patna and there she died. It is also the

case of the defence that she had 90% burning injuries.

8. Learned trial court on conclusion of trial has convicted the

appellants under Section 306 IPC and sentenced them as stated above.

9. Being aggrieved by the aforesaid judgment and order the

present appeal has been preferred by the appellants.

10. Contention of learned counsel for the appellant is that

learned trial court has convicted the appellant on the ground that she

made a statement before her death before PW 3 Suresh Singh and PW

5 the informant that she was tortured by the appellants and further

stated that her father-in-law, mother-in-law, her husband and her

Nanad, the present and surviving appellant, used to assault her and not

providing food to her and as she could not bear the same she herself

set her on fire. Evidence of PW 5 in paragraph-3 shows that she had

90% burn injury and evidence of Doctor (PW 8) disclosed that in case
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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of 90% burn injury patient has become immediately unconscious and

in such a situation the aforesaid statement, which according to

prosecution is dying declaration, does not inspire confidence. Further

submission is that evidences of witnesses are contradictory to each

other so far her condition is concerned as the evidence of PW 3, para-

9 discloses that Prabha Devi, the deceased, was fully burnt and only

some part was left on face and when she came to Patna Junction she

became unconscious and she was admitted to the hospital in

unconscious condition, whereas the evidence of PW 5 discloses that

she was taken to hospital by tempo and mother of deceased (PW 4) in

her evidence in paragraph 5 disclosed that she had come on rickshaw

and evidence of PW 1, para-10 shows that she regained consciousness

in hospital. There is absolutely no evidence available on record to

show that she was in fit state of mind to make statement, rather

evidence shows that she had 90% burn injuries and in dead case and it

is not possible for her to give any statement and as such the aforesaid

evidence does not inspire confidence. On the basis of aforesaid

submission, learned counsel for the appellant submits that the

impugned judgment has no basis and conviction of the appellant is not

just and proper and not sustainable in the eye of law.

11. On the other hand, learned counsel for the State has

submitted that evidence of PW 3 and PW 5 clearly shows that in the
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brake van in train she made statement, stating that due to unbearable

torture meted to her by her sasural people, i.e., father-in-law, mother-

in-law, husband and sister-in-law (Nanad), the present and surviving

appellant she herself set her on fire but there is absolutely no evidence

available on record to show that she was not in a position to speak and

as such learned trial court has rightly relying upon her statement

treating to be a dying declaration admissible under Section 32 of

Evidence Act has convicted the appellant under Section 306 IPC.

12. In the background of rival submission of both the parties,

on perusal of the evidence of PW 3, para-3 disclosed that he had gone

to the brake van of train and asked the deceased as to why she had

committed such a thing on which she disclosed that since Monday she

was not provided food and when she went to prepare food she was not

allowed to do so and mother-in-law, father-in-law, husband and her

sister-in-law (Nanad), all assaulted her and as such she could not bear

it and she herself set her on fire. Evidence of PW 5 further disclosed

that she was not provided food and she was assaulted by her sasural

people and as she could not bear the torture, she herself set her on fire.

It also appears from evidence of PW 5 that at PMCH Doctor informed

that she had 90% burn injury and according to this witness she was

conscious and also demanded water. Her evidence in paragraph-11

further disclosed that she was lying on a cot in brake van and except
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face and leg the whole body was burnt and she was demanding water.

Her evidence also shows that she was not unconscious and after

reaching the hospital she became unconscious and she denied the

suggestion given to her that she was unconscious and was not in a

position to speak. PW 3 is another witness on the point of dying

declaration and his evidence in paragraph-3 also discloses that

deceased had disclosed that she was not provided food and also not

allowed to prepare food by her mother-in-law, father-in-law, husband

and sister-in-law and she was assaulted by them and due to that she

herself set her on fire. Evidence of PW 4, who is mother of deceased,

disclosed that by that time she was taken to hospital and she died.

Evidence of PW 1, who also claims to have gone along with deceased

to PMCH, in paragraph-10 disclosed that she regained consciousness

in Patna hospital. Evidence of PW 5 in paragraph-3 further disclosed

that she had 90% burn injury and except face and leg her whole body

was burnt. Evidence of Doctor (PW 8) disclosed in paragraph-2 that if

there is 90% burn injury patient becomes immediately unconscious. It

is well settled that for accepting dying declaration as to whether the

patient was fit in mental condition to speak, is of the prime

importance, whereas evidence of witnesses is contradictory to each

other so far the deceased was conscious or not and as to whether she

is in condition to speak as she had 90% burn injury. As such, in the
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present case, the evidence is not free from reasonable doubt.

13. Another aspect of the matter about which learned counsel

for the appellant has raised that if the claim of the prosecution is

accepted that she was tortured, not provided food and as she could not

bear torture she committed suicide, the prosecution came to know

about the same on 4.4.1990 itself on the day she was taken to PMCH

but in spite of that no information was given to the police or

Chaukidar or in Panchayat till 8.4.1990 when the statement of the

informant was recorded first and that also creates a doubt about the

prosecution case. In this case I find that first an U.D. case has been

lodged on the information of Chaukidar and ASI (PW 7) was sent for

enquiry about the U.D. case and he has recorded the statement of Ram

Anugrah Singh, father-in-law of deceased at PMCH and he has stated

that he did not find any member of informant’s side present there.

Later on it appears that on 8.4.1990 Darogaji has recorded statement

of the informant in his village Akona, there is absolutely no evidence

available on record that in between 4.4.1990 to 8.4.1990, either

informant (PW 5) or her father (PW 2) approached the police or

chaukidar or any other person or file any petition before the court

about she was being meted torture and due to that she committed

suicide. This is also one of the circumstances that goes against the

prosecution.

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14. Another aspect of the matter which appears from perusal

of the evidence that motive for torture is that accused persons were

interested in getting married of informant with debar of the deceased,

i.e., younger brother of Ajay Kumar and the witnesses have also

stated so in their evidence but there is absolutely nothing available ion

record to show that father-in-law or mother-in-law has ever

approached the father of the deceased for marriage of Shobha Devi,

the informant with Arun Kumar, rather evidence of PW 5 in

paragraph-16 disclosed that accused persons never went to her house

to ask for her marriage and the evidence of PW 4 in paragraph 6

disclosed that appellant Ram Anugrah Singh never asked her for

marriage of his son though she has stated that she was not ready to

marry her in the house of Ram Anugrah. On the other hand, the

evidence of Upendra Singh (PW 6) disclosed that person of Bauk

village came and asked for house of Brijendra and informed that her

daughter had set herself on fire and that shows that father of deceased

had been informed about setting her on fire.

15. Learned counsel for the appellant has also argued that in

this case even according to prosecution, she was taken to Dr. Satendra

Singh first and Umesh, Jagat were present there and none of them

were examined by the prosecution and no explanation was sought for

their non-examination.

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16. It appears that Jagat and Umesh were family members of

the appellants and as such they might not have been examined but

non-examination of Dr. Satendra to whose hospital the deceased was

taken first is not being examined by the prosecution, he ought to be

an important witness about the mental state of deceased and similarly

the Doctor who has first examined her (deceased) has also not been

examined and only the Doctor, who has conducted the post mortem,

has been examined. Had he been examined in this case the defence

would have got a chance to cross examine him about the mental state

of affairs of the deceased whether she was conscious or unconscious

or whether she has been able to speak as the prosecution evidence is

contradictory to each other, hence aforesaid question remained

unanswered.

17. Learned trial court relying upon the evidence of torture

has taken aid of Section 113A of Indian Evidence Act and considering

the definition of cruelty under Section 498A IPC has concluded that

there shall be presumption against the appellants and on the basis of

aforesaid presumption and as defence case that she died while

preparing food does not appear to be probable and relying on a

decision of Hon’ble Apex Court in the case of Pawan Kumar vs. State

of Haryana : 2001(1) P.C.C.R. 284 paragraphs 8 to 10 has convicted

the appellant. I am well aware to the settled principle of law as laid
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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down by Hon’ble Apex Court in the above decision but every case has

its own fact and for raising of presumption under Section 113 A the

prosecution has to prove the evidence of cruelty beyond all shadow of

reasonable doubts and only then the question of presumption shall

arise.

18. In the present case prosecution evidence is that the

deceased was tortured as appellants were interested in marrying the

younger son of Ram Anugrah Singh with the younger daughter of

informant and as deceased was resisting the same, due to that she used

to be tortured and evidence of PWs 3 and 5 disclosed that she

disclosed in the brake van of train that she was not provided food and

not allowed even to prepare of food and used to be assaulted by

father-in-law, mother-in-law, husband and sister-in-law, the

appellants, and as such she herself set her on fire. The evidence is

general in nature and all the family members have been named as the

persons who used to assault and not provided food to her but it

appears from perusal of the order sheet of learned trial court that at the

time of occurrence the present appellant Punam Kumari was 17 years

of age and in such a situation relying on the evidence that she has also

assaulted mainly in absence of any specific allegation against her of

torture and assault really does not inspire confidence, as she was a

teenage girl at that time and as to why she would be interested in
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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marriage of his brother with informant, remained unanswered. In such

view of the matter, only on the fact and general allegation against the

appellant, who was aged 17 years at the time of occurrence,

considering that she has also subjected to cruelty and was responsible

for committing suicide does not inspire confidence.

19. Learned trial court has also considered the story that she

suffered burn injuries while she was preparing food is not at all

believable and he has also taken advantage taking into consideration

all the above facts on defence explanation as not probable has also

considered the same as one of the circumstances. However, once from

the above discussion, the dying declaration is itself doubtful and

evidence of cruelty against the appellant Punam Kumari does not

inspire confidence apart from the other infirmities discussed above as

such merely on the ground of defence explanation is not probable and

for that the conviction cannot be sustained.

20. In view of entire discussions made above, it appears that

learned trial court has not considered all the above aspects of the

matter and also not considered the inconsistencies and infirmities, as

stated above and convicted the appellant under Section 306 IPC,

rather in the above facts and circumstances, as discussed above, the

appellant ought to have entitled to benefit of doubt.

21. Accordingly, the appeal is allowed. The impugned
Patna High Court CR. APP (SJ) No.63 of 2003 dt.16-08-2018

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judgment and order are set aside with respect to the appellant Punam

Kumari. As the appellant is on bail, she is directed to be discharged

from the liabilities of her bail bonds.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE 07.08.2018
Uploading Date 16.08.2018
Transmission 18.08.2018
Date

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