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Anand Kumar @ Niraj vs The State Of Bihar on 10 September, 2018

Patna High Court CR. APP (SJ) No.717 of 2015 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.717 of 2015
Arising Out of PS.Case No. -369 Year- 2005 Thana -M UZAFFARPUR TOWN District-
MUZAFFARPUR

1. Mala, wife of Sanjay Kumar

2. Sanjay Kumar, son of Shyam Nandan Prasad Sinha

3. Prakash Kumar @ Dhiraj, Son of Jivachh Prasad, All are residents of village –
New Area Sikandarpur, P.S. – Town, District : – Muzaffarpur.

…. …. Appellant/s
Versus

1. The State of Bihar.

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 748 of 2015
Arising Out of PS.Case No. -369 Year- 2005 Thana -M UZAFFARPUR TOWN District-

MUZAFFARPUR

1. Manju Devi @ Manju Sinha, Wife of Jiwachh Prasad

2. Jiwachh Prasad, Son of Late Chanderdeo Prasad, Both are resident of Mohalla –
New Area Sikandarpur, P.S. Town, District – Muzaffarpur

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 768 of 2015
Arising Out of PS.Case No. -369 Year- 2005 Thana -M UZAFFARPUR TOWN District-

MUZAFFARPUR

1. Anand Kumar @ Niraj, Son of Jiwachh Prasad, resident of Mohalla:- New Area
Sikandarpur, P.S.- Town, District:- Muzaffarpur.

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s

Appearance :

(In CR. APP (SJ) No.717 of 2015)
For the Appellant/s : Mr. Yugal Kishore-Advocate
For the Respondent/s : Mr. S. B. Verma-A.P.P.

(In CR. APP (SJ) No.748 of 2015)
Patna High Court CR. APP (SJ) No.717 of 2015 2

For the Appellant/s : Mr. Yugal Kishore-Advocate
For the Respondent/s : Mr. S. A. Ahmad-A.P.P.

(In CR. APP (SJ) No.768 of 2015)
For the Appellant/s : Mr. Yugal Kishore-Advocate
For the Respondent/s : Mr. Sujeet Kumar Singh-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 10-09-2018

Cr. Appeal (S.J.) No.717 of 2015, wherein Mala, Sanjay

Kumar and Prakash Kumar @ Dhiraj are the appellants, Cr. Appeal

(S.J.) No.748 of 2015, wherein Manju Devi @ Manju Sinha and

Jiwachh Prasad are the appellants and Cr. Appeal (S.J.) No.768 of

2015 wherein Anand Kumar @ Niraj is the appellant commonly

originate against the judgment of conviction dated 09.10.2015 and

order of sentence 10.10.2015 passed by the 2nd Additional Sessions

Judge, Muzaffarpur in Sessions Trial No.731 of 2006 as well as

Sessions Trial No.549 of 2007 (amalgamated) whereby and

whereunder all the appellants have been found guilty for an offence

punishable under Section 304B of the I.P.C. and sentenced to undergo

R.I. for ten years, under Section 498A I.P.C., under Section 120B of

the I.P.C. for which, no separate sentence has been inflicted and

further, directing that the period having undergone during course of

trial will be set off as provided under Section 428 of the Cr.P.C. on

account thereof, have been heard together and are being decided by a

common judgment.

2. Before coming to mainstream, it is apparent from the
Patna High Court CR. APP (SJ) No.717 of 2015 3

record that Sessions Trial No.731 of 2006 commenced only against

the appellant/ accused Sanjay Kumar wherein charge was framed on

18.07.2007 and PW-1, Seema Srivastava was examined on

03.09.2007. After submission of supplementary chargesheet, Sessions

Trial No.549 of 2007 commenced against the accused/ appellants

Manju Devi @ Manju Sinha, Mala, Prakash Kumar @ Dhiraj,

Jiwachh Prasad, Anand Kumar @ Niraj wherein charge was framed

on 10.12.2007 and then thereafter, both the Sessions Trial have been

directed to amalgamate and then thereafter, Seema Srivastava has

been re-examined as PW-1. In the aforesaid background, procedure

adopted by the learned lower Court happens to be irregular, however,

did not cause prejudice on account of re-examining Seema Srivastava

as PW-1, even after amalgamation.

3. Sanjiv Kumar (PW-6) filed Complaint Case No.2607

on 17.10.2005, against all the accused/ appellants showing the date of

occurrence 05.09.2005, place of occurrence to be house of the accused

with an allegation that his sister Nitu Kumari was married with Anand

Kumar @ Niraj on 29.04.2005 at Vishwanath Chaudhary, Vivah

Bhawan, Banaras Bank Chowk. During course of negotiation of

marriage, father of Anand Kumar had demanded dowry and the

details thereof, have been incorporated on a paper in his handwriting,

which was handed over to him (list attached). As per list, he had

handed over the articles costing Rs.5,00,000/-. After marriage, his
Patna High Court CR. APP (SJ) No.717 of 2015 4

sister had gone to her sasural on 30.04.2005 and stayed there. After

staying for a week, the accused persons began to torment her as,

according to them, the articles were not at all given as per list. So,

directed her to bring Rs. One Lac from her Naihar, otherwise it will

not be good for her. Whenever complainant and his family members

visited the place of his sister, they were humiliated and further, there

was persisted demand of Rs.One Lac. Complainant and his family

members shown their inability to pay the amount on account of their

poor financial condition. The torturous conduct of the accused persons

was being communicated by his sister through letter and further, she

had shown apprehension of her life in case of non-fulfilment of

demand. On 05.09.2005, they heard rumour with regard to her death,

whereupon he had gone to sasural of his sister where people have said

that dead body has been taken away to Sikandarpur for funeral.

Informant rushed to the cremation ground and found dead body of his

sister completely burnt. Seeing the situation, his mental condition

imbalanced. Even then, he tried to know about the actual affair and

during course thereof, so many kinds of explanation has been given

creating suspicion. Then thereafter, he returned back. After gathering

information during the intermediary period, he came to know that his

sister has been murdered on account of non-fulfilment of demand of

dowry. It has further been disclosed that in the night of 04.09.2005,

she was brutally assaulted and murdered by administering poison and
Patna High Court CR. APP (SJ) No.717 of 2015 5

then thereafter, burnt the dead body without informing them. It has

also been disclosed that delay has been caused on account of

collection of information. It has further been disclosed that during the

intervening period, police was also informed, but failed to register a

case. The accused persons also made offer, so that case should not be

instituted.

4. The learned Magistrate referred the same to the

concerned police station for registration and investigation of a case as

provided under Section 156(3) of the Cr.P.C. as a result of which,

Town P. S. Case No.369 of 2005 was registered followed with an

investigation. It is evident from the record that after concluding

investigation, chargesheet was submitted at two stages and the

subsequent eventuality having cropped up on that very score, had

already been referred at an earlier part.

5. Defence case, as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial. It has also been pleaded that the

deceased was suffering from ailment since before her marriage and for

that, she was being treated by the informant himself. Few days prior

to her death, she was taken away by the informant to his house where

husband Anand Kumar had visited on 03.09.2005, after coming to

know about ailment of the deceased. Then, he along with informant

took the deceased to the local doctor, Dr. Y. K. Singh, who had
Patna High Court CR. APP (SJ) No.717 of 2015 6

examined the deceased and prescribed medicine. As the medicine did

not respond properly on account thereof, she was again taken to Dr.

Y. K. Singh and as per instruction, deceased was admitted at Prashant

Memorial Charitable Hospital on 04.09.2005 by the informant himself

where during course of treatment, she died on 05.09.2005 at 7.10

A.M. Informant is the person, who received dead body and funeral

taken place as per inspection of the informant. It has also been

pleaded that just after funeral, the informant, his father, his brother-in-

law (Bahnoi), along with some anti-social elements came and

advanced illegal demand with a threatening that if their undue demand

is not being honoured, then in that circumstance, they will be

implicated in a false dowry death case. They have again visited their

place on 08.09.2005 and during course thereof, they have abused,

assaulted as well as also snatched away Rs.1500/- and for that,

Complaint Case No.2292 of 2005, was filed on 09.09.2005 by

Prakash, wherein cognizance had already been taken. After coming to

know about the same, this case has been filed in retaliation on an

advice of an advocate. In order to substantiate the same, apart from

oral evidence, documentary evidence has also been made an exhibit.

6. In order to substantiate its case, prosecution had

examined altogether seven PWs, who are PW-1, Seema Srivastava,

PW-2, Sanjay Kumar Tulsyan, PW-3, Dinesh Kumar, PW-4, Sanjay

Kumar, PW-5, Suresh Kumar, PW-6, Sanjiv Kumar and PW-7, Md.
Patna High Court CR. APP (SJ) No.717 of 2015 7

Murtuja. Prosecution had also exhibited, Exhibit-1 series, letter in the

pen of deceased, Exhibit-2, list allegedly in the pen of appellant

Jiwachh Prasad, Exhibit-3, passbook of Postal Department, Exhibit-4,

Complaint petition, Exhibit-5, protest petition, Exhibit-6, formal

F.I.R., Exhibit-7, copy of Complaint petition (basis of F.I.R.), Exhibit-

8, certified copy of F.I.R. of Town P.S. Case No.125 of 2010. On the

other hand, defence also examined three DWs, who are DW-1, Dr.

Binod Kumar Mehta, DW-2, Kaushal Kishore Sharma and DW-3,

Ram Padarath as well as had also exhibited, Exhibit-A, copy of

admission form, Exhibit-A/1, photo copy of prescription issued by Dr.

Ramji Prasad, Exhibit-2, not levelled, Exhibit-A/3, duly filled up

admission form, Exhibit-B, photo copy of treatment chart, Exhibit-

B/1, copy of progress report, Exhibit-C, death certificate issued by

Prashant Memorial Hospital, Exhibit-C/1, death report, Exhibit-D,

admission entry in register, Exhibit-D/1, discharge entry in the

register, Exhibit-E, copy of Complaint Case No.2292 of 2005,

Exhibit-E/1, order of cognizance. Exhibit-X, X/1 and X/2 have been

marked for identification.

7. Learned counsel for the appellants submits that the

judgment impugned happens to be capricious, perverse in the

background of non-appreciation of relevant materials in its right

perspective. While elaborating the submission, it has been submitted

that there are three kinds of evidence available on the record,
Patna High Court CR. APP (SJ) No.717 of 2015 8

dismantling, fake structure formulated by the prosecution. The first

one is the deceased was at her Naihar since before her death. She had

fallen ill and after coming to know about the same, husband Anand

Kumar had gone to the place and then, he along with informant took

the deceased to the clinic of Dr. Y. K. Singh, who had examined her,

prescribed medicine, but did not respond well and so, they re-visited

on the following day on which, the Dr. Y. K. Singh instructed them to

admit, whereupon deceased was taken to Prashant Memorial

Charitable Hospital where she was admitted by the informant himself,

treatment commenced and during course thereof, she died on

05.09.2005. The dead body was received by the informant himself and

then thereafter, as per Hindu custom funeral was to be carried by the

husband, which was done in presence of informant as well as his other

family members. All the relevant documents relating to admission,

treatment, death certificate receiving of dead body have been

exhibited and on that very score, DW-1 and DW-2 have been

examined.

8. The second phase happens to be just after funeral. The

informant advanced an illegal demand with a threatening that in case

of non-fulfilment of demand, accused persons will be falsely

implicated in the case of dowry death. Again visited place on

08.09.2005 along with his brother-in-law, father, his henchmen,

advanced illegal demand, threatened and during course thereof,
Patna High Court CR. APP (SJ) No.717 of 2015 9

abused, assaulted and snatched away Rs.1500/-, for that a Complaint

Case was instituted on 09.09.2005, wherein cognizance had already

been taken. After coming to know about the same, it has been

admitted by the prosecution that they took advice and then, as per

instruction, got this case filed. So, this case has been filed with false

and frivolous allegation as a counter blast.

9. It has also been submitted that there happens to be

inordinate delay in institution of this case without any explanation and

so, the unexplained delay is caused severe dent in the prosecution

case, as all the witnesses have admitted their presence at funeral

ground. So, had there been any kind of suspicion, then in that

circumstance, any of them would have taken care to inform the police,

but they did not, as they were knowing since before regarding death of

deceased due to ailment in their presence at reputed nursing home as

well as dead body was received by the informant himself.

10. Then, coming to merit of the case, it has been

submitted that after going through the evidences of the witnesses, it is

apparent that they are not at all consistent over their status, whereupon

their testimony became unreliable. Furthermore, their unethical

approach clearly suggest that neither there was demand nor victim

was ever tortured, nay they visited the place of the accused/

appellants. Therefore, their testimony became unworthy of credence.

Apart from the fact that there happens to be material development in
Patna High Court CR. APP (SJ) No.717 of 2015 10

their testimony adversely affecting reliability. So, the cumulative

effect did not justify the finding recorded by the learned lower Court,

whereupon is fit to be set aside.

11. On the other hand, learned Additional Public

Prosecutor counter-meeting with the submission made on behalf of

appellants has submitted that death is admitted one. If the defence

fails in order to substantiate that deceased died while she was staying

at her Naihar due to ailment and for that, she was admitted at Prashant

Memorial Charitable Hospital by the informant himself, then it will be

presumed that deceased died while staying at her sasural and the

ultimate conclusion would be that, she died at her sasural and in the

aforesaid background, it was incumbent upon to meet with the

allegation that she was being vexed for fulfilment of demand of

dowry, which lastly cost her life. Be that as it may, from the record, it

is evident that prosecution has succeeded in proving its case in the

background of the fact that the list having prepared by the accused

Jiwachh Prasad of the items, articles, which was to be offered at the

end of the prosecution as dowry and further, subsequent conduct of

the appellants inflicting torture upon the deceased to meet with the

demand of Rs. One Lac is found properly established. Furthermore, it

has been submitted that certainly, there happens to be delay in

launching of the prosecution, but the reason therefor has been

divulged right from the initial stage, which happens to be probable
Patna High Court CR. APP (SJ) No.717 of 2015 11

one as informant and his family members suffered from agony as well

as became aghast with the situation.

12. It has further been submitted that filing of Complaint

Case at the end of the appellants is indicative of the fact that after

coming to know about the actual affair leading to death of the

deceased would ultimately drag them before the Court of justice and

only to make out a defence case, they have filed the same. Otherwise,

there was no occasion to name the father of the deceased as one of the

accused, who was blind.

13. It has also been submitted that status of DW-1, DW-

2 and DW-3 are of formal in nature. Not only this, they have merely

exhibited the documents having in pen of others. None of the doctor

has been examined in order to suggest that the condition of the victim

was deteriorating, critical. The documents have been prepared later on

and on account thereof, there happens to be over handwriting. It has

further been submitted that whether the relevant form contains the

signature of the informant could be seen after comparing the signature

available on the complaint petition, vakalatnama. So, after proper

scrutiny of the documents at the end of the rival party suggest that the

documents prepared at the end of the defence are forged and

fabricated and further, presence of complaint petition is an additional

circumstance, whereupon the finding recorded by the learned lower

Court did not require interference.

Patna High Court CR. APP (SJ) No.717 of 2015 12

14. PW-6 is the informant, who had deposed that he had

filed complaint petition before the Court of Chief Judicial Magistrate

on 17.10.2005, which was sent to the local police for registration and

investigation. Then had stated that Nitu Kumari was his sister, whose

marriage was solemnized with Anand Kumar @ Niraj on 29.04.2005.

Jiwachh Prasad happens to be her father-in-law. During course of

negotiation of marriage, Jiwachh Prasad had given a list of articles,

which was to be given at the time of marriage as dowry in his pen and

handwriting. Photo copy thereof, was filed along with complaint

petition. A copy thereof, was also placed before the police (original

filed and exhibited). Then had stated that as per list, he had handed

over cash as well as articles appertaining to Rs. Five lacs. After

marriage, his sister had gone to her sasural where after staying for a

week, her sasuralwala began to torture her on the plea that as per list,

articles have not been given and so, the remaining articles along with

Rs. One Lac be procured from Naihar. So that they should purchase

the articles according to their own choice. His sister had informed,

whereupon he had gone to meet with his sister. During course thereof,

a demand of Rs. One Lac was made and further, threatened that in

case of non-fulfilment, he will have to face dire consequence. His

sister had also disclosed that her mother-in-law, father-in-law,

husband, Dewar, sister-in-law and Nandosi are insisting upon to

procure and for that, she was being tortured. He had consoled his
Patna High Court CR. APP (SJ) No.717 of 2015 13

sister as well as also disclosed inability to fulfil their demand to the

accused persons. His sister used to intimate through letter, which was

also placed before the police. His sister had disclosed to him to pay

Rs.One Lac otherwise she apprehended some untoward incidence. He

had further stated that accused Jiwachh Prasad happens to be an

employee of Postal Department. By tendering R. D. Passbook, he had

stated that maturity amount got transferred by Jiwachh Prasad in his

own account on the basis of an endorsement having in his pen

(Exhibited). Then had tendered the cash memo regarding purchase of

suit, cloth and ornaments at the time of marriage. Identified his

signature over complaint petition. Then had stated that on 05.09.2005,

he got information with regard to murder of his sister, whereupon his

elder sister, Seema Srivastava, first of all, reached followed by him,

his two brother-in-laws and two friends. She disclosed that dead body

has been taken to Sikandarpur. She was not at all allowed to see the

dead body nor they have disclosed the cause of death. Accused

persons after locking the house, fled away. He also went to

Sikandarpur where 4-5 accused persons were present. They have burnt

the dead body. Seeing them, they moved hither and thither. On query,

they escaped there from. Later on, they came to know that in the night

of 04.09.2005, his sister was brutally assaulted and then, by

administering poison, accused persons caused her murder and without

giving any information, burnt the dead body. Subsequently thereof,
Patna High Court CR. APP (SJ) No.717 of 2015 14

the accused persons began to offer. They also got the police in their

collusion as a result of which, police had not registered case. Lastly,

he filed a complaint petition. He had also stated that police had not

recorded their statement correctly, whereupon they have made

complaint before the Superior Police Officials before whom, they

have also given their statement. He had filed protest petition

(Exhibited). He had further stated that his parents are old, infirm on

account thereof, they are unable to come to Court. He had further

stated that accused persons are threatening. They have also instituted

false case. Identified the accused. During cross-examination at Para-

14, he had admitted presence of case having instituted by accused

Prakash Kumar against him and others on 09.09.2005 before the Chief

Judicial Magistrate, which is still pending. He had also stated that

whatever allegation has been attributed in the aforesaid complaint

petition, happens to be false. Then had denied the suggestion that they

have demanded Rs. Two Lacs and for that, they have assaulted the

family members of sasuralwala of his sister. He had further stated that

Punit Lal Yadav, is an Advocate on his behalf in that case, who also

happens to be Additional Public Prosecutor and this case has been

allotted to his file. In Para-15, he had stated that he has got no

information with regard to treatment of his sister at Prashant

Memorial Charitable Hospital before her death. He had further stated

that he was not knowing the fact that his sister died at Prashant
Patna High Court CR. APP (SJ) No.717 of 2015 15

Memorial Charitable Hospital. Then had stated that funeral of Nitu

Kumari was not at all held as per rituals. He had further stated that

none of his family members had participated during course of her

funeral. Accused persons done funeral at Sikandarpur. Only accused

persons were present. When he reached, dead body was completely

burnt. As soon as he reached, accused persons fled away. They have

not extinguished the fire. At that very time, his two brother-in-laws

and friends Sandeep Tulsiyan and Dinesh Kumar were present. At

Para-16, he had stated that they have not informed the police from the

funeral place. None of his family members had gone to police station.

On 7th day, they have gone to police station for recording the case, but

police officials chased them. Then thereafter, he became engaged in

his business. Then thereafter, they traced about institution of a case

filed by Prakash Kumar. Thereafter, they have gone to the office of an

advocate where he had disclosed regarding the occurrence, whereupon

learned advocate prepared the complaint. In Para-18, he had stated

that at the time of incident, his mobile became dead, it was active

three months after the marriage. Then had stated that for the last one

year, his mobile is active. Then had stated that he had stated before

the police that he used to talk with Nitu Kumari over mobile. In Para-

19, he had stated that he came to know regarding the occurrence from

a student, but he is not knowing his name as well as whereabouts.

Then had denied to have stated before the police that in the morning
Patna High Court CR. APP (SJ) No.717 of 2015 16

on 05.09.2005, the sasuralwala of Nitu Kumari had sent a student to

inform that Nitu Kumari has died and on account thereof, they all

have been called. Then had stated that when he came at his house at

about 9.00 A.M., then his mother disclosed the same. In Para-20, he

had stated that after getting information, he informed his brother-in-

law at 11.15 A.M. Then again stated that first of all, he received

information from his sister Seema Srivastava with regard to death of

his sister, then he instructed his friend Sandeep to collect necessary

information from the accused persons. His friend has also disclosed

them that dead body should not be burnt as they are coming. Then had

shown ignorance at which time, he came to funeral place. At that very

time, 4-5 persons were there engaged in burning the dead body. Then

had denied that he had made statement before the police that when he

reached, he had seen 30-40 persons engaged in burning the dead body.

At Para-21, he said that he had stated before the police that father of

brother-in-law namely Jiwachh Prasad had informed that Nitu Kumari

is not well. She was shown to the doctor, but she died. He had

admitted to have stated before the police that on query, he came to

know that accused persons were torturing her as well as were

assaulting her. This information, he received from the resident of new

area Sikandarpur. In Para-22, he had stated that list was handed over

by Jiwachh Prasad having signature of Prakash, his another son, there

are so many cutting over the same. Then had denied the suggestion
Patna High Court CR. APP (SJ) No.717 of 2015 17

that this list happens to be forged and fabricated. Then had stated that

none of the letter written by his sister, there happens to be description

of torture, demand or physical assault. Then had denied the suggestion

that the relevant parts of the letter wherein she had praised her

sasuralwala has been withheld. In Para-23, he had admitted that he

had not mentioned in the complaint petition with regard to passbook

and further, containing endorsement of Jiwachh Prasad in a red ink,

but he had stated before the police. Then relevant part on that very

context has been confronted in a way whether the same has been

incorporated in the complaint or not or made statement to that extent

before the police, whereupon he had shown ignorance. In Para-24, he

had accepted that neither the aforesaid passbook contains the

signature of Jiwachh Prasad nor happens to be in his pen rather a

separate chit of paper was prepared by him, which was attached there

with. Para-25 happens to be cross-examination with regard to

purchase of ornaments from different place. In Para-26, he had stated

that he is unable to file any paper relating to transfer of amount from

his passbook to the account of Jiwachh Prasad. In Para-27, he had

stated that his sister had informed him regarding torture. He had

further stated that during course of statement before the police, he had

stated that as per demand, they have given the articles. He had further

stated that he had incorporated in the complaint petition as well as had

also made statement before the police that his sister was insisting, if
Patna High Court CR. APP (SJ) No.717 of 2015 18

you want to see her alive, then in that circumstance, give Rs.One Lac,

otherwise misfortune will occur with her. Then had stated that other

two passbooks, he is unable to file as they both have been given to

Jiwachh Prasad. In Para-28, he had stated that he had not mentioned

in the complaint petition nor he had stated before the police that

Jiwachh Prasad after making endorsement over his passbook, got the

amount transferred. He had stated that he received the money. Then

had further admitted that he had not mentioned in the complaint nor

stated during course of further statement that receipt happens to be in

pen of accused persons. Then had stated that he had stated before the

police that first of all his elder sister Seema Srivastava arrived

followed by him as well as his two brother-in-laws and two friends.

He had talked with his sister in the midst of way, who disclosed that

dead body has been taken to Sikandarpur and the accused persons

have not allowed her to see the dead body nor they have disclosed the

cause of death. Then had said that he had not mentioned the same in

the complaint petition nor stated to the police. In Para-29, he had

stated that he had mentioned the fact in the complaint petition that he

received information regarding death of his sister on 05.09.2005. He

had further stated that he is not remembering whether he had

incorporated the fact in the complaint petition that accused persons

were threatening. He had further stated that his father happens to be

aged about 70-75 years, his mother happens to be 60 years. He had
Patna High Court CR. APP (SJ) No.717 of 2015 19

talked with him. Then had denied the suggestion that as this case has

been falsely instituted on account thereof, his parents are not inclined

to depose. In Para-30, he had stated with regard to presence of clinic

of Dr. Y. K. Singh at a distance of half kilometer from his house. He

had also shown presence of other doctors in the mohalla. In Para-32,

he had stated that he is unable to produce print out of talk having in

between him as well as his sister over mobile. Then had denied the

suggestion to have stated before the police that 30-40 persons were

engaged in funeral. He had further stated that he had not fainted

seeing the dead body of his sister under fire. He had further stated that

he had informed his brother-in-law, sister with regard to death. When

he reached Sikandarpur, at that very time dead body was burning.

Then, his attention has been drawn relating to his statement before the

D.I.G. He had further stated at Para-33 that dead body was burnt at a

distance of 1 ½ – 2 kilometers from his house. Then had shown the

distance of the Town Police Station from the place to be 3-4

kilometers. So many pay booths were there, but he had not informed

the police. In Para-36, he had stated that deceased was not suffering

from any kind of ailment since before. Then had denied the

suggestion that his sister was suffering from ailment since the time of

her childhood and he used to see her. He had denied the suggestion

that on 15.08.2005, he took his sister to his house for treatment. He

had denied the suggestion that on 03.09.2005, his brother-in-law had
Patna High Court CR. APP (SJ) No.717 of 2015 20

come to his place to see his wife. He had denied the suggestion that

they have taken the deceased Nitu Kumari at the clinic of Dr. Y. K.

Singh where sline was given, but in the morning of 04.09.2005,

condition of his sister deteriorated, whereupon he along with mother

and sister shifted Nitu Kumari to Prashant Memorial Nursing Home,

but in the morning of 05.09.2005, during course of treatment, Nitu

died. In Para-37, he had stated that they became nervous on account of

murder of his sister. Then the documents were shown relating to Nitu

(deceased), was placed before him, whereupon he denied the

suggestion that Nitu was admitted by him at Prashant Memorial

Hospital. He disowned his signature, also disowned that he is not

known as Sanjeev Verma rather he is Sanjeev Kumar. Then had

disowned his signature over format of form of receiving of dead body.

Then had denied that his signatures are all over the documents, but he

malafidely disowned the same. Then had denied the suggestion that as

per their desire, his brother-in-law had lit fire (Mukhagini) and during

course of funeral, they all have participated. Then had denied the

suggestion that subsequently thereof, they illegally advanced money

and to facilitate the same, they took help of anti-social elements, who

assaulted the family members and for that, case was instituted by

Prakash Kumar and after coming to know about the same, this case

has been instituted putting false and frivolous allegation.

15. PW-1, is the elder sister of the deceased as well as
Patna High Court CR. APP (SJ) No.717 of 2015 21

informant, who during her examination-in-chief, had reiterated the

statement made by the informant. Then had stated that on 05.09.2005,

she had received an information from an unknown person with regard

to killing of her sister at her sasural as well as taking the dead body to

burning place for funeral, whereupon she rushed to the sasural of her

sister. She had seen preparation was going on to carry the dead body

to funeral place. She resisted, but the accused persons, flouted the

same. She also requested that dead body be shown to her, which the

accused persons also declined. She was ousted on account of protest.

Then thereafter, the accused persons took away the dead body. She

returned back to her house, informed her relatives and then, reached at

funeral place where dead body of her sister was under fire. On query,

she came to know that accused persons had killed after administering

poison as well as also inflicted physical torture. At Para-10, she had

stated that at the time of occurrence, she had not basic telephone

connection nor mobile, however, his brother had mobile. She had

admitted that accused Prakash had already instituted a case against her

husband, brother and father. Then thereafter, they have gone to

lawyer, who advised to institute a case for murder of Nitu, whereupon

this case has been instituted. At Para-16, she had stated that at the

time of receiving information, she was preparing to go to school. She

had gone to the house of accused alone. Apart from accused, 5-7

mohalla people were there. She remained for half an hour. Dead body
Patna High Court CR. APP (SJ) No.717 of 2015 22

of her sister was inside the house, whereupon she could not see the

dead body as was not allowed by the accused persons to visit. Again

corrected that the dead body was kept within the campus of houses of

accused persons. Then had stated that she remained for half an hour at

the gate. Then thereafter, she returned back. She had gone to the place

of her brother along with her husband and then, directly to the funeral

place. They have not thought to inform the police. They remained at

the funeral place for about 45 minutes. Even thereafter, they have not

gone to the place. Then there happens to be suggestion as well as

contradiction under Paras-21, 22, 23.

16. PW-2 is the friend of informant, who had deposed

that on 05.09.2005, informant had telephonically informed him to

come at once at his house, whereupon he rushed. After reaching there,

he came to know that his sister Nitu Kumari has been murdered by her

sasuralwala due to non-fulfilment of dowry. He was in possession of

mobile. Through his mobile Sanjiv had instructed the sasuralwala of

Nitu to wait for their arrival and then thereafter, dead body would be

cremated. Sanjiv had also inquired about the cause of death,

whereupon her sasuralwala made evasive reply. He had also

accompanied Sanjiv to the sasural of Nitu where house was locked.

None was present. On query, they came to know that they (accused

persons) taken away the dead body to somewhere, whereupon they

began to search and during course thereof, they have gone to
Patna High Court CR. APP (SJ) No.717 of 2015 23

cremation ground where they have seen the accused persons. Sanjiv

had asked for cause of death, whereupon accused persons failed to

disclose and then after sprinkling kerosene oil over the dead body, lit

fire. In Para-6, he had stated that he is unable to supplement his plea

by documentary evidence that Sanjiv telephonically informed. At

Para-8, there happens to be the contradiction. In Para-9, he had stated

that after telephonically informed to the sasuralwala of Nitu, he along

with Sanjiv had gone over scooter. None was present and so, they

have directly gone to the cremation ground. They remained there.

After completion of funeral, they have gone to the place of informant.

Sanjiv was weeping. Who had informed Sanjiv with regard to death of

Nitu, he had got no information. He also stated that he, Sanjiv along

with some known persons were present there, but he is unable to

disclose their name. He had further stated that accused persons have

threatened of dire consequences, in case, case is instituted at his end.

He had advised Sanjiv to institute a case, but he was very much afraid.

17. PW-3 is another friend, who had deposed that Sanjiv

Kumar had disclosed that sasuralwala of Nitu had demanded Rs.One

Lac and for that, she was being tortured. He also came to know that in

the aforesaid background, she has been done to death. At Para-5, he

had stated that on the alleged date and time of occurrence, he had not

met with informant or accused persons. In Para-6, he had stated that

one day after the occurrence, he was informed by Sanjiv that his sister
Patna High Court CR. APP (SJ) No.717 of 2015 24

is no more. He could not know whether Sanjiv had instituted a case or

not. He had not advised him.

18. PW-4 is Sanjay Kumar, brother-in-law of the

informant. During his examination-in-chief, he had deposed over

negotiation, marriage, demand of dowry. Then had stated that on the

alleged date his Sadhu Suresh Kumar informed him that as Nitu has

died on account thereof, come immediately. He came to his sasural

where came across the news that his brother-in-law (Sala), informant

had gone to the house of Nitu, whereupon he had also gone there,

none was present. Then had disclosed that they have gone to

Sikandarpur along with the dead body. On query, he came across the

news that Nitu died on previous night. During cross-examination at

Para-8, he had stated that whenever he had gone to the place of his

Sali, they were humiliated. In Para-12, he had stated that he after

receiving information came along with his wife over motorcycle to his

sasural where leaving his wife, he had gone to the place of his Sali

and there from to Sikandarpur cremation place where informant,

Seema Kumari, Sadhu Suresh Kumar, friend of Sala Sandip Tulsyan

and others were present. Jiwachh Babu, Anand Kumar, Dhiraj Kumar

@ Prakash Kumar were also present. He remained there for half an

hour. The body was already burnt. In Para-13, he had stated that all

the family members were present at the Sikandarpur two hours since

before his arrival. He carried his brother-in-law (Sala) on rickshaw as
Patna High Court CR. APP (SJ) No.717 of 2015 25

he became unconscious. At Paras-15, 16, 17, there happens to be

contradiction.

19. PW-5 is another brother-in-law of informant as well

as husband of PW-1, who during his examination-in-chief, had

reiterated the version of the informant regarding negotiation, demand

and torture having been at the end of the sasuralwala of Nitu

(deceased). Then had stated that on 05.09.2005, his wife received an

information from an unknown person regarding death of Nitu,

whereupon his wife had gone to her Naihar. He after locking, also

came to his sasural where all the family members were weeping, his

wife was not present as she had gone to sasural of Nitu. The accused

persons have not allowed her to see the dead body. He had also gone

to the sasural of Nitu, house was locked. Neighbours have disclosed

that dead body had taken to funeral ground, whereupon they have

gone. They have seen the accused persons engaged in sprinkling

kerosene oil. They began to cry, whereupon accused persons fled

away. His wife had also gone to the funeral ground. During cross-

examination at Paras-9, 10, there happens to be cross-examination

over demand, purchase of motorcycle, television etc. At Para-15, he

had stated that after talking with his wife at his sasural, he had gone to

funeral ground. They remained at funeral ground for an hour as before

there arrival, half of the dead body had burnt. After one hour of their

arrival, accused persons left. In Para-16, he had stated that none at
Patna High Court CR. APP (SJ) No.717 of 2015 26

their side became unconscious. Town Police Station is at the distance

of three kilometers from funeral place while Ahiyapur Police Station

is at the distance of two kilometer. They have not informed the police.

In Para-17, he had admitted presence of case instituted by Prakash

Kumar prior to institution of this case. Then had denied the

suggestion. In Paras-19, 20, 21, there happens to be contradiction. In

Para-24, he had admitted that the residence of the Superintendent of

Police lies adjacent to the funeral place. At Para-25, he had stated that

they have not informed the police as accused persons have disclosed

regarding death of deceased due to illness. When they have demanded

the document from the accused persons, they failed to produce the

same and on account thereof, this case has been instituted.

20. PW-7 is the Investigating Officer, who had stated that

after institution of the case, investigation was entrusted to him. During

course of investigation, he had recorded further statement of the

informant, visited the house of the accused persons, place of

occurrence and detailed the same. It has also been disclosed by the

I.O. that accused persons were residing at the ground floor while at

upper floor, it was let on tenancy. Then had disclosed the boundary of

the P.O. Then had stated that on 21.10.2005, informant had produced

photo copy of a list allegedly in the pen of accused Jiwachh Prasad.

On the same day, photo copy of letter having in pen of deceased was

also produced. He had gone to funeral ground and inquired from the
Patna High Court CR. APP (SJ) No.717 of 2015 27

employee, recorded statement of the witnesses, arrested the accused

and then, submitted chargesheet. During cross-examination at Paras-

17, 18, 19, 20, there happens to be contradiction relating to Seema

Srivastava. At Paras-24, 25, 26, 27, 28, 29, there happens to be

contradiction relating to Sandip. At Paras-30, 31, 32, 33, 34, 35, 36,

37, 38 relating to Sanjay. At Para-39, 40, 41, 42, 43 relating to Suresh.

In Paras-44, 45, 46, 47, 48 relating to informant. He had further stated

at Para-57 that during course of investigation, he could not gather

information regarding the death of deceased at Prashant Memorial

Hospial during course of treatment.

21. Defence had also examined three DWs, out of whom,

DW-1 is Dr. Binod Kumar Mehta, who had claimed himself to be

Director of Prashant Memorial Charitable Hospital and under such

status, he had exhibited relevant documents. DW-2, who claimed

himself to be employee of Prashant Memorial Hospital and in that

capacity, he had exhibited certain documents while DW-3 happens to

be advocate clerk, who had exhibited complaint petition.

22. Through these three witnesses, bunch of documents

have been exhibited, some of which are photo copies without having

attestation, comparing and the source. In likewise manner, Complaint

Petition of Case No.2292 of 2005 had also been exhibited.

23. From the material available on the record, it is
Patna High Court CR. APP (SJ) No.717 of 2015 28

apparent that present case has been instituted after an inordinate delay

taking shelter of Section 156(3) of the Cr.P.C. All the witnesses as is

evident, except PW-3, have claimed their presence at the funeral

place. They have claimed that in their presence after sprinkling

kerosene oil, dead body was burnt. From their evidences, it is also

clear that one police station Ahiyapur lies at a distance of two

kilometer while Town P. S. at a distance of three kilometer. Even then

seeing the abnormal activity of the accused, tried to burn the dead

body by sprinkling kerosene oil, none of them cared to inform the

police rather they were silent spectator for hours together and after

completion of cremation, they left the place. It is further evident that

some sort of allegation has been attributed that after few days, they

have approached the police station wherefrom they were chased away.

However, during course of examination of the I.O., nothing has been

suggested. From the evidence of PW-1, PW-2, it is evident that

informant had mobile, was a medicine trader and so, must be of

Average Intelligence Quotient and further, when informant had called

PW-2, over mobile, then in that circumstance, might have informed

the police through mobile. Not only this, it has also come in the

evidence of PW-5 that the residence of S.P. lies adjacent to the place

where cremation was done. So, at least one should have rushed to the

place of S.P. on account of faced with sewel. Contrary to it, it is also

apparent that after having been noticed relating to a case filed by
Patna High Court CR. APP (SJ) No.717 of 2015 29

accused Prakash Kumar, they gone to take legal advice from an

advocate where they were advised to file murder case, whereupon

complaint has been filed.

24. Then, there happens to be another circumstance,

whether death had occurred at the place of informant or at the place of

accused. Although, DW-1 had not examined the deceased and further,

had not deposed that the concerned doctor, who had examined the

deceased was not available on account of reasons whatever been

enumerated under Section 32(1) of the Evidence Act. That being so,

the documents whatever been at his end, happens to be inadmissible

in the eye of law, whereupon the alleged prescription in the pen of

Ramji Prasad is found not at all admissible. In likewise manner, the

evidence of DW-2 happens to be. So, the document whatever been,

save and except the status of the Complaint Petition No.2292 of 2005,

which has been admitted at the end of the prosecution party. That

being so, death of deceased at Prashant Memorial Charitable Hospital

is found suspicious one and in likewise manner, presence of accused/

husband at the place of prosecution party where deceased was taken

away, her ailment as well as having being treated by Dr. Y. K. Singh

in absence of relevant prescription as well as non-examination of

doctor. In the aforesaid situation, presence of deceased at her sasural

is found out of controversy and further, the death during course of her
Patna High Court CR. APP (SJ) No.717 of 2015 30

stay at sasural.

25. Delay in institution of the case play vital role, more

particularly, when it is found not at all explained. In Ram Jag and

others v. the State of U.P. reported in A.I.R. 1974 SC 606, it has been

held:-

“11. According to the prosecution the occurrence took

place at about 4 p. m. and since the First Information

Report was lodged at about 12-30 at night at the Tarabganj

police station which is at a distance of about 4 miles from

the scene of occurrence, the learned Sessions Judge held

that there was undue delay in lodging the Report and that

the delay was not satisfactorily explained. It is true that

witnesses cannot be called upon to explain every hour’s

delay and a commonsense view has to be taken in

ascertaining whether the First Information Report was,

lodged after an undue delay so as to afford enough scope

for manipulating evidence. Whether the delay is so long as

to throw a cloud of suspicion on the seeds of the

prosecution must depend upon a variety of factors which

would vary from case to case. Even a long delay in filing

report of an occurrence can be condoned if the witnesses

on whose evidence the prosecution relies have no motive

for implicating the accused. On the other hand, prompt

filing of the report is not an unmistakable guarantee of the

truthfulness of the version of the prosecution.”

Patna High Court CR. APP (SJ) No.717 of 2015 31

26. From the evidence available on the record, it is

apparent that there has been inordinate delay in institution of the case.

There also happens to be inordinate delay in recording statement of

the witnesses. In Harbeer Singh vs. Sheeshpal and others reported in

2017 CRI.L.J. 169, it has been held:-

“16. As regards the incident of murder of the deceased, the

prosecution has produced six eye-witnesses to the same.

The argument raised against the reliance upon the

testimony of these witnesses pertains to the delay in the

recording of their statements by the police under Section

161 of Cr.P.C. In the present case, the date of occurrence

was 21.12.1993 but the statements of PW1 and PW5 were

recorded after two days of incident, i.e., on 23.12.1993.

The evidence of PW6 was recorded on 26.12.1993 while

the evidence of PW11 was recorded after 10 days of

incident, i.e., on 31.12.1993. Further, it is well-settled law

that delay in recording the statement of the witnesses does

not necessarily discredit their testimony. The Court may

rely on such testimony if they are cogent and credible and

the delay is explained to the satisfaction of the Court. [See

Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106;

Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi

(Minor) Vs. Mam Raj Ors., (2004) 13 SCC 279 and

Sidhartha Vashisht @ Manu Sharma vs. State (NCT of

Delhi), (2010) 6 SCC 1].

Patna High Court CR. APP (SJ) No.717 of 2015 32

17. However, Ganesh Bhavan Patel Vs. State Of

Maharashtra, (1978) 4 SCC 371, is an authority for the

proposition that delay in recording of statements of the

prosecution witnesses under Section 161 Cr.P.C., although

those witnesses were or could be available for examination

when the Investigating Officer visited the scene of

occurrence or soon thereafter, would cast a doubt upon the

prosecution case. [See also Balakrushna Swain Vs. State

Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State

of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs.

State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason

to interfere with the observations of the High Court on the

point of delay and its corresponding impact on the

prosecution case.”

27. From the evidence of PWs, it is apparent that there

happens to be material development from initial version recorded

under Section 161 Cr.P.C. supported by the evidence of I.O. In

Yogesh Singh vs. Mahabeer Singh and others reported in 2017

CRI.L.J. 291, it has been held:-

Discrepancies in Evidence

29. It is well settled in law that the minor discrepancies are

not to be given undue emphasis and the evidence is to be

considered from the point of view of trustworthiness. The

test is whether the same inspires confidence in the mind of

the Court. If the evidence is incredible and cannot be
Patna High Court CR. APP (SJ) No.717 of 2015 33

accepted by the test of prudence, then it may create a dent

in the prosecution version. If an omission or discrepancy

goes to the root of the matter and ushers in incongruities,

the defence can take advantage of such inconsistencies. It

needs no special emphasis to state that every omission

cannot take place of a material omission and, therefore,

minor contradictions, inconsistencies or insignificant

embellishments do not affect the core of the prosecution

case and should not be taken to be a ground to reject the

prosecution evidence. The omission should create a serious

doubt about the truthfulness or creditworthiness of a

witness. It is only the serious contradictions and omissions

which materially affect the case of the prosecution but not

every contradiction or omission. (See Rammi @

Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela

Ram (dead) through Duli Chand Vs. State of Haryana and

Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv

Kumar Singh Ors., (2004) 9 SCC 186; Vijay @ Chinee

Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath

Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC

124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7

SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas

and Anr., (2013) 12 SCC 796).

28. At the present moment, one has to see whether the

direction given by the Apex Court in Rajbir alias Raju and another

vs. State of Haryana reported in (2010)15 SCC 116, is found
Patna High Court CR. APP (SJ) No.717 of 2015 34

applicable. Aforesaid direction has been issued in the Year 2010,

while the occurrence as alleged happens to be of the Year 2005. As

the direction could not be treated retrospective in nature. That being

so, the present appeal is found out of its purview. Moreover, the

nature of evidence also did not attract further scrutiny over the same.

29. Although, the death of deceased is found within

seven years of marriage. The plea of the prosecution that she was

murdered and further, before her death, there was demand of dowry to

a tune of Rs.One Lac and for that, soon before her death, she was

subjected to torture. From the oral as well as documentary evidence, it

is not at all found duly substantiated, on the other hand, the letters

(Exhibit-1 series) suggest otherwise. That being so, the judgment of

conviction and sentence recorded by the learned lower Court is not at

all found maintainable. Accordingly, the same is set aside. Appeal is

allowed. Appellants are on bail, hence are discharged from its

liability.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE 31.07.2018
Uploading Date 10.09.2018
Transmission 10.09.2018
Date

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