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 33accepted 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
