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Chandra Sekhar Prasad @ … vs State Of Bihar on 31 January, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.132 of 2009

Chandra Sekhar Prasad @ Chandrakher Prasad, son of Narayan Mahto,
resident of village-Ajaypur (Rampur Ka Tola), P.S.-Chandi, District-Nalanda.

… … Appellant/s
Versus
The State of Bihar … … Respondent/s

with
Criminal Appeal (SJ) No. 155 of 2009

1. Narayan Mahto, son of late Karu Mahto.

2. Keshri Devi, wife of Sri Narayan Mahto.

Both residents of village- Ajaypur (Rampur Ka Tola), P.S.-Chandi,
District-Nalanda.

… … Appellant/s
Versus
The State of Bihar … … Respondent/s

Appearance :

(In Criminal Appeal (SJ) No. 132 of 2009)
For the Appellant/s : Mr. Sanjay Kumar, Amicus Curiae
For the State : Mr. Parmeshwar Mehta, A.P.P.

(In Criminal Appeal (SJ) No. 155 of 2009)
For the Appellant/s : Mr. Sanjay Kumar, Amicus Curiae
For the State : Mr. Parmeshwar Mehta, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date : 31-01-2019

1. Appellants Chandra Shekhar Prasad (Cr. Appeal (SJ)

No.132 of 2009), Narayan Mahto and Keshari Devi (Cr. Appeal

(SJ) No.155 of 2009) have been found guilty for an offence

punishable under Section 304B/34 of the IPC and have been

sentenced to undergo R.I. for ten years vide judgment of

conviction dated 22.12.2008 and order of sentence dated

23.12.2008 passed by the Additional Sessions Judge,IInd, Hilsa,

Nalanda in Sessions Trial No.703/2006, on account thereof, heard

analogously and are decided by a common judgment.
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2. Jadunandan Prasad filed written report on 02-01-

2006 disclosing therein that he had married his daughter Manju

Kumari in the year 2002 with Chandra Shekhar Prasad, son of

Narayan Mahto of village-Ajaypur (Rampur Ka Tola). At the time

of marriage, he had paid Rs.65,000/- in cash and articles

comprising of Rs.50,000/-. After marriage, he retained his

daughter at his place and her Gauna was effected after a year as

per prevailing custom. At the time of Gauna also, he had gifted the

articles according to his means. After staying for sometime by his

daughter at her Sasural, he visisted and during course of meeting

his daughter disclosed that her husband Chandra Shekhar Prasad,

mother-in-law Keshari Devi, father-in-law Narayan Mahto are

coercing her in routine manner, to bring Rs.50,000/- as his father is

in service over which, replied that her father has got no money in

order to fulfill their demand. Thereafter, he met with his son-in-

law, Samdhi and Samdhin and requested them not to torture her on

the pretext of non-fulfillment of demand of dowry but, they did not

pay heed to it. That being so, Manju continued to face torture and

cruelty at their end. Lastly, he brought his daughter at his house

where, his daughter had elaborately detailed the activities of her

husband, father-in-law, mother-in-law extorted over her in order to

procure dowry. After sometime, his son-in-law came at his place
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and asked for Bidai which they accepted but, begged not to torture

her on the pretext of dowry. After sometime, his daughter again

informed with regard to her miseries whereupon, he had gone

there. After conversation with his daughter he was known to the

fact that her mother-in-law was insisting upon to procure

Rs.50,000/- for doing business as, her husband was unemployed

otherwise, she has threatened that her husband will be remarried

after eliminating her. Lastly, he took her to his place. While staying

at his place, she had disclosed that in case their demand is not

fulfilled then in that circumstance, she will not be allowed to

survive. Subsequently thereof, Bidai was effected and during

course of her stay at her Sasural two days thereafter he received an

information that she has been murdered whereupon, rushed to the

place. After arrival, they have not seen the dead body whereupon

began to search and during course thereof, came to know that dead

body has been taken away by the police. Accordingly, came to

police station found the dead body having mark over her neck.

3. Chandi P.S. Case No.3/2006 was registered on the

basis of the written report followed with an investigation as well as

submission of charge sheet, facilitating the trial meeting with the

ultimate result, subject matter of instant appeal.
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4. Defence case as has been pleaded under Section 313

Cr.P.C. as well as suggested during course of cross-examination is

that of complete denial. It has further been pleaded that deceased

being a short tampered lady committed suicide on trivial domestic

issue. However, nothing has been adduced in defence.

5. Altogether seven PWs have been examined on

behalf of prosecution who are PW.1-Dharamshila Devi, PW.2-

Lalmohan Kumar, PW.3-Jadunandan Prasad, PW.4-Kameshwar

Prasad, PW.5-Ramdeo Prasad, PW.6-Gopalji Singh and PW.7-Dr.

Mithilesh Kumar.

6. Side by side has also exhibited Ext.1-Written Report,

Ext.2-Endorsement over written report, Ext.3-Formal FIR, Ext.4-

Postmortem Report. As stated above, nothing has been adduced in

defence.

7. The learned Amicus Curiae while challenging the

finding recorded by the learned lower court has submitted that

from the facts available on the record, no offence under Section

304B of the IPC is found duly substantiated whereupon, the

finding recorded by the learned lower court is not at all legally

sustainable. Furthermore, it has also been submitted that PW.1

mother, PW.2 brother and PW.3 father are inconsistent to each

other to such extent that the story of demand of dowry vanishes
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whereupon, no conviction could be recorded under section 304B

of the IPC. That being so, the judgment of conviction and sentence

recorded by the learned lower court is fit to be set aside.

8. On the other hand, the learned Additional Public

Prosecutor submitted that on account of faulty investigation at the

end of the I.O. due to his in competency, did not make the trial

stifle. Furthermore, it has also been submitted that PW.1, PW.2 and

PW.3 are family members who have occasion to perceive the event

which deceased confronted while staying at her Sasural

corroborated by PW.4 as well as PW.5. That being so, the

prosecution case is found duly substantiated whereupon judgment

impugned is fit to be confirmed.

9. For attracting an offence of dowry death, the

following ingredients are required to be fulfilled at the end of the

prosecution:

(a) death should be within seven years of marriage.

(b) The death should be due to burn, injury or

otherwise than normal circumstance.

(c) There should be demand of dowry and for that,

soon before her death, deceased was subjected to

torture and

(d) By her husband or relative of the husband.

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If, the prosecution succeeds in substantiating the aforesaid

ingredients then, in that circumstance, there would be presumption

of dowry death in accordance with Section 113B of the Evidence

Act though re-buttable. That means to say, accused has got an

option to rebut the allegation whatsoever been attributed against

him if, so desires. Furthermore, by a catena of judicial

pronouncement it has been settled at rest that even the death being

a suicide would not cast any kind of deficiency over the

prosecution case in case, the remaining ingredients are fulfilled as

the law itself speaks, “otherwise than normal circumstance”.

10. In Jagjit Singh v. State of Punjab reported in AIR

2018 SC 5719, it has been held:

“24. A reading of Section 304-B of the IPC along with
Section 113-B of the Evidence Act would establish that
once the prosecution shows that soon before the death of
the wife, she has been subjected to cruelty or
harassment for or in connection with any demand for
dowry, the court shall presume that such person caused
the dowry death within the meaning of Section 304-B
IPC. The words ‘shall presume’ in Section 113-B of the
Evidence Act, while it mandates that the Court is duty
bound to proceed on the basis that the person has caused
the dowry death, the presumption is rebuttable and it is
open to the relative to prove that the ingredients of
Section 304-B IPC are not satisfied. See in this regard,
the following statement of law contained in the case of
G.V. Siddaramesh v. State of Karnataka 2010 (3) SCC
152:

“26. Section 113-B of the Evidence Act raises a
presumption against the accused and reads:

“113-B. Presumption as to dowry death – When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman had been subjected by such person to
cruelty or harassment for, or in connection with, any
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demand for dowry, the court shall presume that such
person had caused the dowry death.

Explanation. – For the purposes of this section, ‘dowry
death’ shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860).”

A reading of Section 113-B of the Evidence Act
shows that there must be material to show that soon
before the death of woman, such woman was subjected
to cruelty or harassment for or in connection with
demand of dowry, then only a presumption can be
drawn that a person has committed the dowry death of a
woman. It is then up to the appellant to discharge this
presumption.”

25. We may also notice the statement of law
contained in the decision of this Court in the case of
Ashok Kumar v. State of Haryana reported in 2010
(12)SCC 350 which reads as under:

“24. Of course, deemed fiction would introduce a
rebuttable presumption and the husband and his
relatives may, by leading their defence and proving that
the ingredients of Section 304-B were not satisfied,
rebut the same. While referring to raising of
presumption under Section 304-B of the Code, this
Court, in Kaliyaperumal v. State of T.N.;(2004) 9 SCC
157: 2004 SCC (Cri) 1417, stated the following
ingredients which should be satisfied: (SCC p. 162, para

4)
“(1) The question before the court must be whether
the accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if
the accused is being tried for the offence under Section
304-B IPC).

(2) The woman was subjected to cruelty or harassment
by her husband or his relatives.

(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her
death.”

11. PW.7 is the doctor who had conducted postmortem

on 02.01.2006 over the dead body of Manju Devi and found the

following:-

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(i) Black bruise right side upper part of the leg 1″ x
3/4″

(ii) Red swellen left side of neck and cheek 4″ x 3″
On dissection of neck, the doctor has found
subcuteneous heamatoma right side of neck,
subcutaneous heamatoma left side of neck over right
side area and gave his opinion about the case of
death, asphyxia due to throatling.

12. During course of cross-examination this witness at

para-6 has categorically stated that it is not a case of suicide.

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

evident that date of marriage has not been controverted. That

means to say marriage in the year 2002 is not under controversy

and in likewise manner the date of the death which happens to be

within seven years of her marriage. Moreover, from the evidence

of doctor, death by strangulation, means by having application of

external force is found substantiated.

14. Now the remaining two ingredients are to be seen

along with whether the appellants have been able to rebut the

presumption as required under Section 113B of the Evidence Act?

15. PW.1 is the mother who has deposed that her

daughter Manju Kumari was married in the year 2002 with

Chandra Shekhar Prasad. Her daughter had gone to her Sasural and

after staying for sometime returned back. While staying her place
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she had disclosed that her husband, mother-in-law and father-in-

law are insisting upon to procure Rs.50,000/- in lieu of dowry and

for that, they are even physically assaulting her. At the time of

marriage she gave cash appertaining to Rs.65000/- as well as

articles costing of Rs.50,000/-. Then she stated that her son-in-law

came and took his daughter on Bidai. She was again tortured for

procurement of Rs.50,000/-. They came to know about the same

on a disclosure made by her daughter who was taken a back to her

place. Subsequently, when her son-in-law came asking for Bidai,

she had requested him not to torture her for dowry. Later on, Bidai

was effected. And then, they came to know regarding murder of

her daughter whereupon, all of them rushed to Sasural of her

daughter. They have gone to Chandi P.S. where her dead body was

lying having black spot over her neck. Identified the accused.

During cross-examination at para-2 she has stated that for the first

time she had gone to the Sasural of her daughter after her

marriage. In para-3 she has stated that her other son-in-law Ajay

Kumar was the middle man during course of negotiation and all

articles cash passed through him. At para-4 she has stated that at

the time of marriage, there was no dispute. Marriage was

solemnized in congenial atmosphere. At para-9 she has stated that

after Vidai, her daughter stayed at her Sasural for fifteen days and
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during midst thereof, wife of Bindeshwar Ram had gone with

Daura (gift items sent to Sasural of the girl during her stay). Her

husband had accompanied her. They have gone on Chauthari

(fourth day of marriage). She has further stated that she had

conversation with maid servant. In para-10 she has stated that maid

servant had disclosed that Chandra Shekhar Prasad (son-in-law)

took out pistol and pointed out at her daughter. Then again said

maid servant alone had gone to Sasural of her daughter. In para-12

she has stated that in presence of maid servant, her son-in-law had

not committed any sin. In para-13, she has stated that her daughter

Manju has disclosed that her husband had pointed out pistol at her.

In para-14 she has stated that her husband returned back from

Sasural of her daughter after 2-4 days. He returned alone. Her

husband had not disclosed anything to her. He had not

complained. In para-15, she has stated that ten days thereafter her

husband revisited the Sasural of her daughter for Bidai. He had

gone alone. On the following day, he returned back with daughter.

When her daughter came then she had disclosed that her husband

had pointed out pistol at her. Her husband had not disclosed with

regard to any kind of tension so perceived by him. At that very

time, all things were smoothly sailing. Her daughter had not

disclosed anything else than pointing out pistol and for that no
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cause was disclosed. Paragraph 17 to 23 are over the same. In

para-24 she has stated that about an year Chandra Shekhar came

with vehicle for Bidai. Ruksaddi was effected. Till then, the

situation was cordial. At that very time, none had accompanied her.

Her daughter remained there for 2-3 months during midst thereof,

neither letter nor phone was received at her end. However, her

husband had gone there. He made night halt and on the following

day, he returned back. He had not disclosed anything to her and so,

she presume that all was well. In para-25 she has stated that her

daughter was literate. She was inter pass. She used to post letter

but the letters have been misplaced, destroyed during the

intervening period. In para-26 she has stated that she received two

letters after coming of her husband from her Sasural. In para-27

she has stated that about a month thereafter her husband had gone

to the Sasural of her daughter. After returning therefrom, he had

stated that there is no good news as, daughter used to weep. Her

husband had accompanied the daughter. Her husband disclosed

that son-in-law use to assault her. Her daughter had disclosed to

the father that he (husband) used to demand money but for that,

she was tortured. In para-28 she had stated that her husband again

had gone to the place of her daughter where he was disclosed by

her daughter regarding demand of money and assault having over
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her in order to procure the same. Then, her husband took the

daughter along with him. After arrival of her daughter, she had

talked with her and during course thereof, she had disclosed that

her Sasuralwala was demanding money and for that, they used to

assault her. She had shown apprehension that in case of non

payment of the money, they will murder her. She had not disclosed

this event to her debar. Her daughter had disclosed the same in her

presence as well as in presence of her husband. At that very time,

no outsider was present. In para-29 she had stated that to preserve

the prestige of the family, she had not disclosed the event to the

friends of her husband. In para-30 she had stated that 1-2 months

thereafter when her son-in-law came for Bidai, she had requested

him not to torture her for the dowry. At that very time, she had not

called Ajay but, later on her husband had gone to him for getting

the matter properly resolved. In para-31 she had stated that even

after her request to her son-in-law not to torture her daughter, her

son-in-law did not pay heed to it and on account thereof, tension

continued. She had further stated that she is not remembering how

much amount was paid to him at the time of Bidai. Her son-in-law

returned back unhappyly. In para-32 she had stated that she had

sent her husband to the place of her daughter. At an earlier

occasion, Ajay used to visit but, due to differences he declined and
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so, her husband used to go alone. Her husband stayed for a night

and on the following day, he returned back. Her husband had

talked with father-in-law of her daughter namely Narayan Mahto

in order to sort out the solution but, failed which was reported to

her by her husband after returning therefrom. In para-34 she had

stated that for a year or two forbidden to go at the Sasural. They

have also not taken any effort. In para-35 she had stated that after

‘Chhath’ her son-in-law came for Bidai. They have allowed the

same. At that very time her son-in-law had come alone. At that

very time, none from her family had accompanied him. At that

very time, her son-in-law had assured that he will keep his wife

properly. Subsequently, her son-in-law advanced demand of

Rs.50,000/-. On court question she disclosed that when she said

that she has got no money, her son-in-law kept silence. However,

Bidai was effected. In para-36, 37 there happens to be cross-

examination over demand of Rs.50,000/- at the end of her son-in-

law. Her son-in-law had stated that any how he will take

Rs.50,000/-. In para-38 she had stated that from the approach of

her son-in-law they became apprehensive in the background of the

fact that they have perceived continuous danger over the life of her

daughter. In para-39 she had stated that her daughter was not

inclined to go with her husband but, her son-in-law insisted. Then
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had stated at para-45 that after departure of her daughter, her

husband had not visited her place. In para-47 she had stated that

she is unable to disclose how they have received information but,

one person had come from Salempur. In para-48 she had stated

that she had not met with Ajay another son-in-law before going to

Sasural of her daughter. In para-49 she had stated that Salempur

has wrongly been mentioned rather the person was sent by Ajay

belong to village Rampur. Then again stated that she is unable to

disclose who sent the person from Sasural of her daughter but, one

person has came therefrom. In para-50 she had stated that after

receiving information, she along with her husband, son, villagers

have gone firstly to the Sasural of her daughter where they came to

know that dead body has been taken away by the police, gone to

police station where seen the dead body. At that very time

Chowkidar and person of the village were present. Then had

denied the suggestion that her daughter had got no differences with

her Sasuralwala nor her Sasuralwala ever demanded dowry nor she

was tortured for the same. She had denied the suggestion that her

daughter was a short tampered lady whereupon, died on her own.

She had further denied the suggestion that she had died on account

of her own in the background of the fact that her Sasuralwala had
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tried to pacify her on account of quarreling with her Gotini. Then

had denied the suggestion that she had deposed falsely.

16. PW.2 is the brother of the deceased who had

deposed that deceased died at her Sasural lying at village Rampur

Tola Ajaypur. Her marriage was solemnized with Chandra Shekhar

Prasad in the year 2002 and thereafter, had gone to her Sasural and

began to reside during course thereof, she died. She was throttled

to death by her husband and in-laws on account of non-fulfillment

of demand of dowry which they were insisting upon since before.

Identified. During cross-examination he had stated at para-3 that

he had gone to Sasural of his sister only twice. The first one at the

time of Chheka and the second one, after her death along with his

other family members as well as villagers. At para-4 he had stated

that when he had gone to the Sasural of his sister after her death,

none was present. House was locked. In para-5 he had stated that

they met with the neighbours but, unable to disclose their names.

During conversation with them, they came to know that the dead

body has been taken away to police station. In para-6 he had stated

that during course of conversation they came to know that after

death of deceased at her Sasural, her dead body has been taken to

police station. In para-7 he had stated that they, after coming to

know about the same left the place. In para-8 he had disclosed that
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house of his another brother-in-law lies in the nearby village. He

had not accompanied them. In para-8 (renumbered ought to have

been 9) he had stated that when they reached at the police station,

they found the dead body. They have seen Narayan Mahto,

Chowkidar and some of the villagers of Sasural of the deceased.

They have stayed for an hour and during course thereof, police

inquired from them. During course thereof, he had stated before

police that the dead body belongs to his sister who has been

murdered for dowry. In para-9 he had stated that he had stated

before the police that his brother-in-law, parents of his brother-in-

law caused murder by strangulation. In para-10 he had stated that

information with regard to death of his sister was conveyed by a

person. He had not met with him. His father had disclosed. Then

thereafter, his father directed to be ready so that they should go to

Sasural of the deceased. At that very time, none of his family

members had disclosed regarding the information received by

them relating to death of the deceased. Again said that he is unable

to say who had disclosed him regarding death of the deceased.

Again para-9 (again wrongly mentioned) he had stated that before

going to police station, they have not informed their relative. He

had informed his uncle after approaching the police station. In

para-12 he had stated that the person who had come to inform
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them had not accompanied them. Then at para-14 had denied the

suggestion that on the alleged date he was not present in the

village. In para-15 he had stated that during midst of their presence

at police station his cousin brother Bhupendra had come to police

station. His another brother-in-law Ajay Kumar had not come.

Then thereafter dead body was sent to postmortem. Funeral was

effected at Bakhtiyarpur. In para-17 he had stated that Narayan

was arrested at the police station itself. In para-18 he had stated

that he had not seen the occurrence. He had not met with anybody

who had claimed to be an eyewitness to occurrence. He had further

stated that he is unable to disclose name of anybody who could

have disclosed that his brother-in-law along with his parents

caused murder by throttling. In para-19 he had stated that he could

not met with anybody who could have enlightened over the issue.

In para-23 he had stated that his sister used to talk with him. In

para-24 he had stated that his father used to visit at the Sasural of

his sister but he is unaware with the fact whether villagers have

accompanied him for the purpose of compromise/resolving. He

had gone to the Sasural of his sister. His sister had not written any

letter to him. He is unaware with the fact whether his sister had

written letter at the house. Then there happens to be cross-

examination at para-26, 27, 28 (again wrongly mentioned) with
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regard to cause of death of his eldest sister. At para-29 denied

suggestion that his sister was not tortured by anybody nor there

was demand of dowry. He had also denied the suggestion that

deceased died on her own and for that, the demand of dowry and

torture having on that very score at the end of the accused was not

the reason.

17. PW.3 has stated that 02-01-2003 is the date of

occurrence. His daughter Manju was married with Shekhar Prasad

of village-Ajaypur in the year 2002 as per Hindu rights and

custom. At the time of marriage he had given Rs.65,000/- in cash

as dowry and the articles appertaining to Rs.50,000/-. Ruksaddi

was effected one year thereafter. While she was staying at her

Sasural, he used to visit at her place and during course thereof, he

came to know that her Sasuralwala were torturing her for getting

the demand of dowry duly fulfilled. The accused were actively

indulged in such illegal activity which, his daughter used to say.

Accused persons were demanding Rs.50,000/- in lieu of dowry.

Times without number he tried to resolve but, the accused persons

did not pay heed and lastly, caused murder of his daughter at her

Sasural. After getting information, he rushed. He first of all gone

to the Sasural of his daughter where he came to know that his

daughter has been murdered by way of throttling on 01.01.2006.
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He was also informed that dead body of his daughter has been

taken to police station. Accordingly, they came to police station.

They have seen the dead body of his daughter having mark over

her neck and after seeing thereof, they inferred that his daughter

has been murdered by way of throttling. Thereafter, he instituted

the case (exhibited). Identified the accused. During cross-

examination at para-4 he had stated that he happens to be three

brothers. Indradeo is a teacher, Krishnandan is living away. In

para-5, 6, 7, 8 there happens to be cross-examination relating his

family affair as well as cause of death of his eldest daughter. In

para-9 he had stated that at the time of negotiation of marriage

they were informed that Chandra Shekhar is a B.A. Pass and is

doing service at Dhanbad but, those things have been found to be

false. In para-11 he had stated that now they have come to know

that Chandra Shekhar is 8-9th Class passed having two bigha land.

Before marriage, he had not inquired from Chandra Shekhar. In

para-12 he had stated that Ajay Kumar, his another son-in-law had

participated during course of Chheka as well as marriage. In para-

13 he had stated that his son-in-law Ajay Kumar had not gone to

the Sasural of Manju after marriage. In para-15 he had stated that

he had visited place of deceased 5-7 times. He had also visited

after marriage and before Ruksaddi. On that very score, he has
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been cross-examined furthermore, whereupon, shown his inability

to disclose exact date of his going to the place of deceased. In

para-16 he had stated that he had not instructed his son-in-law

Ajay Kumar to go to Sasural of deceased in order to inquire about

her welfare. In para-17 he had stated that after Ruksaddi and

before his arrival at the Sasural of deceased, Narayan Mahto

visited his place only once. He had also stated that before going to

Sasural of the deceased, no letter was ever received at the end of

the deceased. He had not talked over telephone with the deceased

or her Sasuralwala. He had further stated that for the first time

when he had gone to Sasural of the deceased, he arrived at evening

hour, stayed at night and, on the following day, he returned back.

At that very occasion all things were normal. None came from her

Sasural. On the other hand, he used to visit her place. None other

ofhis family had gone. He frequently visited to the place of his

daughter at an interval of 2-3 months. On his second visit, his

daughter had disclosed that she is being tortured by her

Sasuralwala. She had also disclosed that her Sasuralwala were

torturing her for fulfillment of demand of dowry. At the second

occasion also he reached at evening night stayed and on the

following day he returned back. At that very time, he requested her

Sasuralwala not to torture her but he had not disclosed it to Ajay or
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anybody else. In para-19 he had stated that he had not contacted

with the persons who had helped during course of negotiation. In

para-20 he had stated that after returning back to his house, he had

disclosed the same to the family members including, his remaining

two brothers. However, he had not disclosed the same to his well

wishers. In para-21 he had stated that even after his request at the

second time, the accused persons have not acceded on the other

hand threatened that his daughter will be murdered. He had not

informed any authority, as he, taken the same in casual manner. He

had disclosed the same to his family members. In para-22 he had

stated that at third occasion when he visited the place of his

daughter, he accompanied her to his place. He had gone there after

a gap of 2-3 months. He took his daughter with the consent of her

Sasuralwala. She remained at his place for a month then thereafter,

his son-in-law came and accompanied his daughter. He had come

alone over a vehicle and took away her daughter. His son-in-law

stayed for a day. In para-24 he had stated that his daughter

(deceased) had disclosed regarding demand by her Sasuralwala.

None other had disclosed the same. In para-25 he had stated that

he used to discuss the issue at his house with other family

members but, he had not taken an outsider to Sasural of his

daughter for getting the matter properly resolved. He even had not
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accompanied his brothers. He on his own took the initiative and

for that, he used to visit Sasural of his daughter. In para-26 he had

stated that he had not talked with Raghubir Mahto for redressal of

the problem who happened to be full brother of his Samdhi. In

para-27 he had stated that he had perceived harmonious

relationship amongst Radhubeer Mahto with his Samdhi. He had

also stated that he used to talk with his Samdhin. They even talked

over demand. In para-28 he had stated Sasuralwala of his daughter

were persistently demanding Rs.50,000/- but for what he is not

knowing. He had further stated that there was pressure over him

relating to aforesaid demand. In para-31 he had stated that his

daughter had come to his place several times after marriage.

Usually Chandra Shekhar used to take Bidai. In para-32 he had

stated that after visiting his house at third occasion, his daughter

began to complain against her Sasuralwala over demand of dowry

and torture therefor. She remained alive for three years, thereafter.

In para-33 he had stated that his son-in-law is a farmer but

occasionally goes outside in search of his livelihood. Whenever

they demanded money, he used to pay even part thereof. Then at

para-36, 37 there happens to be cross-examination with regard to

his first daughter (since deceased). In para-39 he had stated that

when they arrived at the place of his daughter, they met with
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several villagers but, is unable to disclose their names. However,

Raghubeer was certainly not. In para-40 he had stated that when he

reached at the place of his daughter, he came to know that dead

body has been taken to the police station. They also came to know

that deceased has been murdered by pressing her neck with lathi

but, he had not mentioned the name of the person in his written

report who had disclosed the same. Then had denied the

suggestion that deceased committed suicide after having been

humiliated as, she had asked curse against her Dayadin which was

disclosed by the villager. He also denied suggestion that neither

there was demand of dowry nor, deceased was tortured for the

same. He had denied the suggestion that none of the villagers had

disclosed regarding murder by way of throttling. He had further

denied the suggestion that neither Ajay nor his brother have

suggested to institute a case and on account thereof, they have

been left out to be a witness.

18. PW.4, PW.5 are not the family members of the

informant rather they happens to be friend of PW.3. They have

disclosed that they were informed by the informant (PW.3) that

deceased was done to death at her Sasural by her in-laws within

three years of her marriage on account of non-fulfillment of

demand of dowry to a tune of Rs.50,000/- and for that, she was
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being tortured. They have also stated that they have accompanied

the informant PW.3 to the police station where they have seen dead

body of the deceased having mark over her neck. During cross-

examination, PW.3 at para-9 had disclosed regarding death of

eldest daughter of the informant out of burn but, shown his

unawareness whether case for the same was instituted or not. In

para-11 he had stated that when they reached at the police station,

one person from the village of Ajaypur was there. In para-13 he

had stated that one person came and informed regarding death of

Manju but he is unable to disclose his identity. In para-12 he had

stated that they reached at the police station. Ajay, one of the son-

in-law of the informant was present there. PW.5 during cross-

examination had stated that he had also gone to the Sasural of

deceased on the relevant day where, they came to know that dead

body has been taken away to the police station. Accordingly, they

have gone to police station. They have found one Chowkidar and

Narayan Mahto along with 10-15 persons. The villagers were

saying that deceased has been murdered by the Sasuralwala. But,

he is unable to disclose their identity. In para-3 he had stated that

informant Jadunandan Prasad had previously said to him that

Sasuralwala of Manju is demanding Rs.50,000/- and for that,

deceased was being tortured. At that very time Ramashish, Sanjay
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and others were present. He had further stated at para-5 that some

body of village Ajaypur had informed regarding the misfortune

over which, they have gone there. He had further stated that only

Jadunandan Prasad informed him regarding demand of

Rs.50,000/-. In para-6 he had stated that he met with police at the

police station. They remained there for two hours and then gone to

Biharsharif as dead body was sent to postmortem. Accused

Narayan Mahto was arrested at the spot. Then had denied the

suggestion that neither there was demand nor deceased was done

to death for the same. In para-8 he had stated that another son of

the informant was also present at the police station.

19. PW.6 is the I.O. He had stated that on 02-01-2006 he

was officer-in-charge of Chandi P.S. On that day chowkidar along

with a villager brought a dead body over cot accompanied by

Jadunandan Prasad who had filed written report scribed by the

Dafadar Kamal Kishore Sharma on his dictation having his

endorsement (exhibited). Then had exhibited formal FIR. Took up

investigation. Prepared the inquest report (exhibited) sent the dead

body for postmortem recorded further statement of the informant

statement of other witnesses, gone to the place of occurrence and

visited the house of the deceased /accused persons. Detailed the

same. Shown the boundary. Recorded statement of the co-villager.
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Procured postmortem report and then, after completing

investigation, submitted charge sheet. In para-5 of his cross-

examination he had stated that when the dead body of deceased

was brought at the police station, at that time so many co-villagers

including Chowkidar have come including father-in-law of the

deceased namely Narayan Mahato. The prosecution party

(informant, his wife, his son) along with Kameshwar and Ramdeo

have also accompanied. On query, he came to know that they were

coming from the P.O. village. Written report was not scribed in his

presence. He had further stated that he had not recorded statement

of the inquest witness. In para-8 he had stated that he had not

mentioned at whose instance he had visited the place of

occurrence. He had not mentioned who had assisted during course

of inspection of the P.O. Then had stated that witness Dinesh

Prasad and Leela Devi (not examined) had stated before him that

how the deceased died in night, they were not knowing. In para-9

he had stated that during course of inspection of the P.O. he had

not found any incriminating material with regard to commission of

murder. He had received postmortem report on 28.03.2006. Then

had denied the suggestion that during course of investigation he

had found sufficient evidence with regard to innocence of the
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accused persons but, on account of direction of the superior

officials, he had submitted charge sheet.

20. From the evidence as discussed herein above, it is

evident that death of deceased Manju within seven years of

marriage at her place (Sasural) is not at all controverted. In

likewise manner, the finding of the doctor, PW.7 has not been

challenged who, after conducting postmortem, had found the death

caused by throttling. As per Modi jurisprudence, throttling always

happens to be on account of inflicting external force and further,

had ruled out to be a case of suicide. Though, in order to

appreciate the ingredients of section 304B of the IPC, the same

happens to be immaterial but, it is now conclusively proved that

deceased died of throttling, and so it was certainly homicidal. The

remaining ingredients that means to say there was demand of

dowry and soon before her death deceased was was tortured with

regard to demand of dowry by her husband or relative of the

husband, the nature of the evidence suggest that it happens to be

some sort of deficient one because of the fact that PW.2, the

brother had not corroborated the same while PW.1 the mother did

not find enough to substantiate in a manner as required because of

the fact that she had not categorically stated that either deceased or

her husband, PW.3/informant elaborately discussed with her with
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regard to demand of dowry by the Sasuralwala and further,

tortured having inflicted on that very score. Though, PW.3 had

stated and was also been cross-examined on that very score but,

his answer to the effect that he had not talked with anybody

including his family members is a circumstance that goes against

the prosecution more particularly being inconsistent with the

evidence of PW.4 as well as PW.5, the friends of PW.3 who have

disclosed that they have come to know with regard to demand of

Rs.50,000/- as dowry, torture as well as causing murder of the

deceased on that very pretext, from PW.3 the informant.

Furthermore, the conduct of the I.O. is also not found above board.

However, it is settled at rest that prosecution case would not fail on

account of lapses at the end of the I.O.

21. Be that as it may, the Hon’ble Apex Court since

before was very much apprehensive with regard to paucity of

evidence as, the offences are being committed inside the house of

the accused and further, it happens to be difficult for the

prosecution to trace out the proper evidence with regard to torture

and cruelty meted out in day to day affair on account of non-

fulfillment of dowry and that being so, in a case Rajbir @ Raju

Anr. vs. State of Haryana reported in (2010) 15 SCC 116

directed all the trial courts in following way:
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“We further direct all trial Courts in India to ordinarily

add Section 302 to the charge of section 304B, so that

death sentences can be imposed in such heinous and

barbaric crimes against women. Copy of this order be

sent to Registrar Generals/Registrars of all High

Courts, which will circulate it to all trial Courts.”

22. The aforesaid view has further been tested by the

Apex Court in Jasvinder Saini Ors. vs. State (Govt. of NCT

of Delhi) reported in (2013) 7 SCC 256 and reaffirmed in

following way:

“14. Be that as it may the common thread
running through both the orders is that this
Court had in Rajbir’s case (supra) directed the
addition of a charge under Section 302 IPC to
every case in which the accused are charged
with Section 304-B. That was not, in our
opinion, the true purport of the order passed by
this Court. The direction was not meant to be
followed mechanically and without due regard
to the nature of the evidence available in the
case. All that this Court meant to say was that
in a case where a charge alleging dowry death
is framed, a charge under Section 302 can also
be framed if the evidence otherwise permits.
No other meaning could be deduced from the
order of this Court.

15. It is common ground that a charge under
Section 304B IPC is not a substitute for a charge
of murder punishable under Section 302. As in
the case of murder in every case under Section
304B also there is a death involved. The
question whether it is murder punishable under
Section 302 IPC or a dowry death punishable
under Section 304B IPC depends upon the fact
situation and the evidence in the case. If there
is evidence whether direct or circumstantial to
prima facie support a charge under Section 302
IPC the trial Court can and indeed ought to
frame a charge of murder punishable under
Section 302 IPC, which would then be the main
charge and not an alternative charge as is
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erroneously assumed in some quarters. If the
main charge of murder is not proved against the
accused at the trial, the Court can look into the
evidence to determine whether the alternative
charge of dowry death punishable under Section
304B is established. The ingredients
constituting the two offences are different,
thereby demanding appreciation of evidence
from the perspective relevant to such
ingredients. The trial Court in that view of the
matter acted mechanically for it framed an
additional charge under Section 302 IPC without
adverting to the evidence adduced in the case
and simply on the basis of the direction issued
in Rajbir’s case (supra). The High Court no
doubt made a half hearted attempt to justify the
framing of the charge independent of the
directions in Rajbir’s case (supra), but it would
have been more appropriate to remit the matter
back to the trial Court for fresh orders rather
than lending support to it in the manner done
by the High Court.

16. In the light of what we have said
above, the order passed by the trial Court and
so also that passed by the High Court are
clearly untenable and shall have to be set aside.
That would not, however, prevent the trial
Court from re-examining the question of
framing a charge under Section 302 IPC
against the appellant and passing an appropriate
order if upon a prima facie appraisal of the
evidence adduced before it, the trial Court
comes to the conclusion that there is any room
for doing so. The trial Court would in that
regard keep in view the decision of this Court
in Hasanbhai Valibhai Qureshi v. State of
Gujarat and Ors. (2004) 5 SCC 347 where this
Court has recognized the principle that in cases
where
“the trial Court (upon) a consideration of
broad probabilities of the case based upon total
effect of the evidence and documents produced,
is satisfied that any addition or alteration of the
charge is necessary, it is free to do so.

17. Reference may also be made to the
decisions of this Court in Ishwarchand
Amichand Govadia and Ors. v. State of
Maharashtra and Anr. (2006) 10 SCC 322 and
the decision of the Calcutta High Court in
Rajendra Singh Sethia v. State and Ors. 1989
Cri.L.J. 255 and that delivered by the
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Allahabad High Court in Shiv Nandan and Ors.

v. State of U.P. 2005 Cri. L.J 3047 which too
are to the same effect. In any such fresh
exercise which the trial Court may undertake, it
shall remain uninfluenced by the observations
made by the High Court on merits of the case
including those touching the probative value of
the autopsy surgeon’s opinion.

23. Again the same has been subject to subjugation in

Vijay Pal Singh Ors. vs. State of Uttarakhand reported in

(2014) 15 SCC 163:

“18. However, it is generally seen that in cases where
a married woman dies within seven years of marriage,
otherwise than under normal circumstances, no inquiry is
usually conducted to see whether there is evidence, direct or
circumstantial, as to whether the offence falls under Section
302 of IPC. Sometimes, Section 302 of IPC is put as an
alternate charge. In cases where there is evidence, direct or
circumstantial, to show that the offence falls under Section
302 of IPC, the trial court should frame the charge under
Section 302 of IPC even if the police has not expressed any
opinion in that regard in the report under Section 173(2) of the
Cr.PC. Section 304B of IPC can be put as an alternate charge
if the trial court so feels. In the course of trial, if the court
finds that there is no evidence, direct or circumstantial, and
proof beyond reasonable doubt is not available to establish
that the same is not homicide, in such a situation, if the
ingredients under Section 304B of IPC are available, the trial
court should proceed under the said provision. In Muthu Kutty
v. State (2005) 9 SCC 113, this Court addressed the issue and
held as follows:

“20. A reading of Section 304-B IPC and Section
113-B, Evidence Act together makes it clear that law
authorises a presumption that the husband or [pic]any
other relative of the husband has caused the death of a
woman if she happens to die in circumstances not
normal and that there was evidence to show that she
was treated with cruelty or harassed before her death in
connection with any demand for dowry. It, therefore,
follows that the husband or the relative, as the case
may be, need not be the actual or direct participant in
the commission of the offence of death. For those that
are direct participants in the commission of the offence
of death there are already provisions incorporated in
Sections 300, 302 and 304. The provisions contained in
Section 304-B IPC and Section 113-B of the Evidence
Act were incorporated on the anvil of the Dowry
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Prohibition (Amendment) Act, 1984, the main object of
which is to curb the evil of dowry in the society and to
make it severely punitive in nature and not to extricate
husbands or their relatives from the clutches of Section
302 IPC if they directly cause death. This conceptual
difference was not kept in view by the courts below.
But that cannot bring any relief if the conviction is
altered to Section 304 Part II. No prejudice is caused to
the accused- appellants as they were originally charged
for offence punishable under Section 302 IPC along
with Section 304-B IPC.”

19. In a recent decision, this Court in Jasvinder Saini and
others v. State (Government of NCT of Delhi )[(2013) 7 SCC 256],
observed thus:

“15. It is common ground that a charge under Section
304-B IPC is not a substitute for a charge of murder
punishable under Section 302. As in the case of murder
in every case under Section 304-B also there is a death
involved. The question whether it is murder punishable
under Section 302 IPC or a dowry death punishable
under Section 304-B IPC depends upon the fact
situation and the evidence in the case. If there is
evidence whether direct or circumstantial to prima
facie support a charge under Section 302 IPC the trial
court can and indeed ought to frame a charge of
murder punishable under Section 302 IPC, which would
then be the main charge and not an alternative charge
as is erroneously assumed in some quarters. If the main
charge of murder is not proved against the accused at
the trial, the court can look into the evidence to
determine whether the alternative charge of dowry
death punishable under Section 304-B is established.
The ingredients constituting the two offences are
different, thereby demanding appreciation of evidence
from the perspective relevant to such ingredients. The
trial court in that view of the matter acted
mechanically for it framed an additional charge under
Section 302 IPC without adverting to the evidence
adduced in the case and simply on the basis of the
direction issued in Rajbir case. The High Court no
doubt made a half-hearted attempt to justify the
framing of the charge independent of the directions in
Rajbir case, but it would have been more appropriate
to remit the matter back to the trial court for fresh
orders rather than lending support to it in the manner
done by the High Court.”

20. Though in the instant case the accused were
charged by the Sessions Court under Section 302 of
IPC, it is seen that the trial court has not made any
serious attempt to make an inquiry in that regard. If
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there is evidence available on homicide in a case of
dowry death, it is the duty of the investigating officer
to investigate the case under Section 302 of IPC and the
prosecution to proceed in that regard and the court to
approach the case in that perspective. Merely because
the victim is a married woman suffering an unnatural
death within seven years of marriage and there is
evidence that she was subjected to cruelty or
harassment on account of demand for dowry, the
prosecution and the court cannot close its eyes on the
culpable homicide and refrain from punishing its
author, if there is evidence in that regard, direct or
circumstantial.

21. In the instant case, the prosecution has not made any
attempt to explain the ante-mortem injuries which
conclusively point to the cause of death as asphyxia caused by
strangulation. Yet, no serious attempt, it is disturbing to note,
was done to connect the murder to its author(s).

22. No doubt, nothing prevents this Court from putting the
appellants on notice as to why the punishment should not be
appropriately enhanced but why we reluctantly decline to do
so, we shall explain in the later part of the judgment.

23. In two of the early decisions of this Court, after the
introduction of Section 304B of IPC, the ingredients of the
offence and the interplay of Section 304B of IPC with Sections
498A, 302, 306 of IPC have also been discussed. In State of
Punjab v. Iqbal Singh and others[3], the Court in paragraph-8
stated that:

“8. … The legislative intent is clear to curb the menace
of dowry deaths, etc., with a firm hand. We must keep
in mind this legislative intent. It must be remembered
that since crimes are generally committed in the
privacy of residential homes and in secrecy,
independent and direct evidence is not easy to get.

That is why the legislature has by introducing Sections
113-A and 113-B in the Evidence Act tried to
strengthen the prosecution hands by permitting a
presumption to be raised if certain foundational facts
are established and the unfortunate event has taken
place within seven years of marriage. This period of
seven years is considered to be the turbulent one after
which the legislature assumes that the couple would
have settled down in life. If a married women is
subjected to cruelty or harassment by her husband or
his family members Section 498-A, IPC would be
attracted. If such cruelty or harassment was inflicted
by the husband or his relative for, or in connection
with, any demand for dowry immediately preceding
death by burns and bodily injury or in abnormal
circumstances within seven years of marriage, such
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husband or relative is deemed to have caused her death
and is liable to be punished under Section 304-B, IPC.
When the question at issue is whether a person is
guilty of dowry death of a woman and the evidence
discloses that immediately before her death she was
subjected by such person to cruelty and/or harassment
for, or in connection with, any demand for dowry,
Section 113-B, Evidence Act provides that the court
shall presume that such person had caused the dowry
death. Of course if there is proof of the person having
intentionally caused her death that would attract
Section 302, IPC. Then we have a situation where the
husband or his relative by his wilful conduct creates a
situation which he knows will drive the woman to
commit suicide and she actually does so, the case
would squarely fall within the ambit of Section 306,
IPC. In such a case the conduct of the person would
tantamount to inciting or [pic]provoking or virtually
pushing the woman into a desperate situation of no
return which would compel her to put an end to her
miseries by committing suicide. …”

24. In Dinubhai Boghabhai Solanki vs. State of

Gujarat Ors. reported in (2018) 11 SCC 129, it has been held:

“33. We are not suggesting that Mr. Solanki and his
nephew are the persons responsible for the murder of
Amit Jethwa. That charge which is levelled against
them and other accused persons has to be proved in the
trial by cogent evidence. We are also mindful of the
principle that standard of proof that is required in such
criminal cases is that the guilt has to be proved beyond
reasonable doubt. However, at the same time, it is also
necessary to ensure that trial is conducted fairly where
witnesses are able to depose truthfully and fearlessly.
Old adage judicial doctrine, which is the bedrock of
criminal jurisprudence, still holds good, viz., the basic
assumption that an accused is innocent till the guilt is
proved by cogent evidence. It is also an acceptable
principle that guilt of an accused is to be proved beyond
reasonable doubt. Even in a case of a slight doubt about
the guilt of the under trial, he is entitled to benefit of
doubt. All these principles are premised on the doctrine
that ‘ten criminals may go unpunished but one innocent
person should not be convicted”. Emphasis here is on
ensuring that innocent person should not be convicted.

Convicting innocence leads to serious flaws in the
criminal justice system. That has remained one of the
fundamental reasons for loading the processual system
in criminal law with various safeguards that accused
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persons enjoy when they suffer trials. Conventional
criminology has leaned in favour of persons facing
trials, with the main objective that innocent persons
should not get punished.

34. At the same time, realisation is now dawning that
other side of the crime, namely, victim is also an
important stakeholder in the criminal justice and welfare
policies. The victim has, till recently, remained
forgotten actor in the crime scenario. It is for this reason
that “victim justice” has become equally important,
namely, to convict the person responsible for a crime.
This not only ensures justice to the victim, but to the
society at large as well. Therefore, traditional
criminology coupled with deviance theory, which had
ignored the victim and was offender focussed, has
received significant dent with focus shared by the
discipline by victimology as well. An interest in the
victims of the crime is more than evident now7.
Researchers point out at least three reasons for this
trend. First, lack of evidence that different sentences had
differing impact on offenders led policy-makers to
consider the possibility that crime might be reduced, or
at least constrained, through situational measures. This
in turn led to an emphasis on the immediate
circumstances surrounding the offence, of necessity
incorporating the role of the victim, best illustrated in a
number of studies carried out by the Home Office
(Clarke and Mayhew 1980). Second, and in complete
contrast, the developing impact of feminism in
sociology, and latterly criminology, has encouraged a
greater emphasis on women as victims, notably of rape
and domestic violence, and has more widely stimulated
an interest in the fear of crime. Finally, and perhaps
most significantly, criticism of official statistics has
resulted in a spawn of victim surveys, where sample
surveys of individuals or households have enabled
considerable data to be collated on the extent of crime
and the characteristics of victims, irrespective of
whether or not crimes become known to the police. It is
for this reason that in many recent judgments rendered
by this Court 8 , there is an emphasis on the need to
streamline the issues relating to crime victims.

35. There is a discernible paradigm shift in the criminal
justice system in India which keeps in mind the interests
of victims as well. Victim oriented policies are
introduced giving better role to the victims of crime in
criminal trials. It has led to adopting two pronged
strategy. On the one hand, law now recognises, with the
insertion of necessary statutory provisions, expanding
role of victim in the procedural justice. On the other
hand, substantive justice is also done to these victims by
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putting an obligation on the State (and even the culprit
of crime) by providing adequate compensation to the
victims9. The result is that private parties are now able
to assert “their claim for fair trail and, thus, an effective
‘say’ in criminal prosecution, not merely as a ‘witness’
but also as one impacted” .

36. That apart, it is in the larger interest of the society
that actual perpetrator of the crime gets convicted and is
suitably punished. Those persons who have committed
the crime, if allowed to go unpunished, this also leads to
weakening of the criminal justice system and the society
starts losing faith therein. Therefore, the first part of the
celebrated dictum “ten criminals may go unpunished but
one innocent should not be convicted” has not to be
taken routinely. No doubt, latter part of the aforesaid
phrase, i.e., “innocent person should not be convicted”
remains still valid. However, that does not mean that in
the process “ten persons may go unpunished” and law
becomes a mute spectator to this scenario, showing its
helplessness. In order to ensure that criminal justice
system is vibrant and effective, perpetrators of the crime
should not go unpunished and all efforts are to be made
to plug the loopholes which may give rise to the
aforesaid situation.

37. The position which emerges is that in a criminal
trial, on the one hand there are certain fundamental
presumptions in favour of the accused, which are aimed
at ensuring that innocent persons are not convicted.
And, on the other hand, it has also been realized that if
the criminal justice system has to be effective, crime
should not go unpunished and victims of crimes are also
well looked after. After all, the basic aim of any good
legal system is to do justice, which is to ensure that
injustice is also not meted out to any citizen. This calls
for balancing the interests of accused as well as victims,
which in turn depends on fair trial. For achieving this
fair trial which is the solemn function of the Court, role
of witnesses assumes great significance. This fair trial is
possible only when the witnesses are truthful as ‘they
are the eyes and ears’ of the Court.

38. We are conscious of the fact that while judging as to
whether a particular accused is guilty of an offence or
not, emotions have no role to play. Whereas, victims, or
family of victims, or witnesses, may become emotive in
their testimonies, in a given case, as far as the Court is
concerned, it has to evaluate the evidence which comes
before it dispassionately and objectively. At the same
time, it is also a fact that emotion pervades the law in
certain respects. Criminal trials are not allusive to the
fact that many a times crimes are committed in the ‘heat
Patna High Court CR. APP (SJ) No.132 of 2009 dt.14-01-2019
37/38

of passion’ or even categorized as ‘hate crimes’.
Emotions like anger, compassion, mercy, vengeance,
hatred get entries in criminal trials. However, insofar as
the Judge is concerned, most of these emotions may
become relevant only at the stage of punishment or
sentencing, once the guilt is established by credible
evidence, evaluated objectively by the Court11. The
aforesaid factors, then, become either
mitigating/extenuating circumstances or aggravating
circumstances. We make it clear that these factors have
not influenced us. We also expect that the trial court will
not go by such considerations insofar as first stage is
concerned, namely, evaluating the evidence to decide as
to whether accused persons are guilty of the offence or
not. That part is to be performed in a totally objective
manner. Reason is simple. The manner in which the
murder of Amit Jethwa is committed may be cruel or
ruthless. However, in the first instance it has to be
examined as to whether the accused persons are
responsible for the said murder or they (or some of
them) are innocent.”

25. From the lower court record, it is crystal clear that

no alternative charge under Section 302 IPC has been framed.

There happens to be complete absence of finding at the end of the

lower court whether after perusal of materials available in the case

diary no ingredient of Section 302 IPC is made out. That being so,

the lower court violated the direction of the Apex Court without

any cogent reason. That being so, miscarriage of justice is found.

Accordingly, the judgment impugned is set aside. Appeal is

allowed. Matter is remitted back to the lower court to proceed

afresh after framing alternative charge under section 302 IPC

along with other allied section. Appellants are on bail which is

hereby cancelled, directing them to surrender before the lower

court within fortnight, failing which the lower court will proceed
Patna High Court CR. APP (SJ) No.132 of 2009 dt.14-01-2019
38/38

against them in accordance with law. First and last page of the

judgment should be given to the learned Amicus Curiae for the

needful.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR AFR
CAV DATE 27.11.2018
Uploading Date 31.01.2019
Transmission Date 31.01.2019

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