Patna High Court CR. APP (SJ) No.261 of 2015 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.261 of 2015
Arising Out of PS.Case No. -52 Year- 2010 Thana -BIRAUL District- DARBHANGA
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Manjula Devi, wife of Shyam Jha, resident of village – Jagdishpur ( Kahuwa ), P.S.
Biraul, District – Darbhanga
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
with
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Criminal Appeal (SJ) No. 516 of 2015
Arising Out of PS.Case No. -52 Year- 2010 Thana -BIRAUL District- DARBHANGA
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Guddu Jha, son of Shyam Jha, resident of village – Jagdishpur ( Kahuwa ), P.S.
Biraul, District – Darbhanga
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
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Appearance :
(In CR. APP (SJ) No.261 of 2015)
For the Appellant/s : Mr. Ramchandra Sahay-Advocate
For the Respondent/s : Mr. Bipin Kumar-A.P.P.
(In CR. APP (SJ) No.516 of 2015)
For the Appellant/s : Mr. Ramchandra Sahay-Advocate
For the Respondent/s : Mr. Abhay Kumar-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 2-03-2017
Cr. Appeal (S.J.) No.261 of 2015 wherein Manjula Devi
is the appellant while in Cr. Appeal (S.J.) No.516 of 2015 wherein
Guddu Jha is the appellant commonly originate against the judgment
of conviction dated 20.11.2014 and order of sentence dated
Patna High Court CR. APP (SJ) No.261 of 2015 2
22.11.2014 passed by the Additional Sessions Judge-1st, Benipur,
Darbhanga in Sessions Trial No.422 of 2010 as well as Sessions Trial
No.241 of 2011 convicting both the appellants for an offence
punishable under Section 304B/34 of the I.P.C. and sentenced each of
them to undergo rigorous imprisonment for 10 years with a further
direction of set off against the period having undergone during trial in
terms of Section 428 of the Cr.P.C. whereupon have been heard
together and are being disposed of by a common judgment.
2. PW-6, Shiv Narayan Chaudhary, father of the
deceased Kiran Devi had recorded his fard-bayan on 12.04.2010 at
about 6.00 p.m. at Primary Health Centre, Biraul alleging inter alia
that on the same day at about 11.00 a.m. while he was at his village,
one of the villagers was telephoned from Kahua, Jagdishpur
disclosing the fact that daughter of Shiv Narayan Chaudhary died. He
was immediately informed whereupon rushed to the place of his
daughter Kiran Devi lying at village-Kahua Jagdishpur where he
found outer door bolted from outside. After opening of the door, they
gone inside the house and in Eastern room, his daughter Kiran Devi
was found lying on the ground by the side of a bed in burnt condition.
On query, she disclosed that her husband Guddu Jha has sprinkled
kerosene oil and during course thereof, her mother-in-law and Nanand
Leela Devi caught hold and further, assaulted. Then thereafter, her
Patna High Court CR. APP (SJ) No.261 of 2015 3
mother-in-law lighted match and threw it on her body. At that very
time, Bhulla Jha, Shyam Jha, Bhagwan Jha were provoking that she
be eliminated and further, they are ready to face consequence. The
motive for occurrence has been disclosed as about six years ago at the
time of marriage of Kiran Devi, Rs.30,000/- remained due in lieu of
dowry and for that, Guddu Jha, Shyam Jha, wife of Shyam Jha,
daughter of Shyam Jha were persistently demanding which, on
account of poverty, he found unable to pay and for that, Bhulla Jha
and Bhagwan Jha scolded him. Furthermore, deceased Kiran Devi
was regularly tortured in order to facilitate early procurement of the
same. It has also been disclosed that deceased had begotten two
siblings, Nitu Kumari aged about 3 years and a son aged about six
months.
3. On the basis of the aforesaid fard-bayan, Biraul P. S.
Case No.52 of 2010 was registered whereupon investigation
commenced and concluded by way of submission of chargesheet in
two stages as per presence of respective accused whereupon two
separate Sessions Trial, as indicated above, were registered which
during course of trial, got amalgamated and concluded whereunder
appellants found guilty and convicted while remaining got acquitted
whereupon there two appeals arise, the subject matter of adjudication.
4. The defence, as is evident from mode of cross-
Patna High Court CR. APP (SJ) No.261 of 2015 4
examination as well as statement recorded under Section 313 of the
Cr.P.C. is of complete denial of the occurrence. Furthermore, it has
also been pleaded that there was congenial, harmonious relationship
prevailing amongst the appellants as well as deceased and so, there
was no occasion for the appellants to advance demand of Rs.30,000/-,
which never oriented right from negotiation. Apart from this, it has
also been pleaded that the reason best known to the deceased, she
committed suicide by setting fire after locking the door from inside
while her husband Guddu (appellant) had gone to visit Darbhanga for
his treatment, father-in-law (since acquitted) had gone to participate in
a Panchayati, mother-in-law (appellant) had gone to the place of DW-
1 Ghurni Devi along with a kid and after seeing smoke coming out
from the house, the villagers rushed to rescue the deceased and for
that, after opening door, they gone inside, but till then, deceased was
already dead. On that very score, one DW has also been examined.
5. In order to substantiate its case, prosecution had
examined altogether ten (10) P.Ws. out of whom, PW-1 Dinanand
Mishra, PW-2 Ram Kumar Yadav, PW-3 Binod Kumar Mishra, PW-
4 Dr. Ramanand Chaudhary, PW-5 Hari Narayan Chaudhary, PW-6
Shiv Narayan Chaudhary, PW-7 Bindeshwar Chaudhary, PW-8 Kedar
Mishra, PW-9 Daisundar Devi and PW-10 Ahmad Hussain Khan, the
I.O. The prosecution had also exhibited the documents as Exhibit-1
Patna High Court CR. APP (SJ) No.261 of 2015 5
post mortem report, Exhibit-2 signature of PW-5 on inquest report,
Exhibit-2/1 inquest report, Exhibit-3 fard-bayan, Exhibit-4 case diary
Para-1 to 45. Though, defence had not exhibited any kind of
document, but as pointed out, had examined one DW namely Ghurni
Devi.
6. Whenever there happens to be prosecution under
Section 304B of the I.P.C., the mandate of law requires the
prosecution to substantiate:-
(a) That the deceased died on account of burnt or
bodily injury otherwise than under a normal circumstance.
(b) The aforesaid death had occurred within seven
years of marriage.
(c) Deceased was subjected to cruelty or
harassment by her husband or any relative of the husband.
(d) She has been treated with cruelty or harassment
for or in connection with demand of dowry.
(e) Such cruelty or harassment is shown to have
meted out to the woman soon before her death.
The only confusion relates with soon before her death
and for that, it has consistently been held that no straight jacket
formula could be prescribed there for and will vary as per facts of
individual case. In case, there happens to be consistent and conclusive
evidence of the prosecution on that very score, then in that event,
Patna High Court CR. APP (SJ) No.261 of 2015 6
there would be presumption of dowry death in terms of Section 113B
of the Evidence Act even then, the accused will have an opportunity
to rebut the aforesaid presumption being rebuttable.
7. In Sher Singh alias Partapa v. State of Haryana
reported in 2015 CRI.L.J. 1118 wherein the Hon’ble Apex Court had
extempore discussed the aim and ambition of the bill and further,
held:-
“10. It is already empirically evident that the
prosecution, ubiquitously and in dereliction of duty,
in the case of an abnormal death if a young bride
confines its charges to Section 304B because the
obligation to provide proof becomes least
burdensome for it; this is the significance that
attaches to a deeming provision. But, in any death
other than in normal circumstances, we see no
justification for not citing either Section 302 or
Section 306, as the circumstances of the case call
for. Otherwise, the death would logically fall in the
category of an accidental one. It is not sufficient to
include only Section 498A as the punishment is
relatively light. Homicidal death is chargeable and
punishable under Sections 302 and 304B if
circumstances prevail triggering these provisions.
11. Some doubts remain on the aspect of
Patna High Court CR. APP (SJ) No.261 of 2015 7presumption of innocence, deemed culpability and
burden of proof. One of our Learned Brothers has
in Pathan Hussain Basha v. State of Andhra
Pradesh (2012) 8 SCC 594, after extensively
extracting from the previous judgment authored by
him (but without indicating so) expressed two
opinions – (a) that Article 20 of the Constitution of
India contains a presumption of innocence in favour
of a suspect and, (b) that the concept of deeming
fiction is hardly applicable to criminal
jurisprudence. The logical consequence of both
these conclusions would lead to the striking down of
Section 8A of the Dowry Act, Section 113B of the
Evidence Act, and possibly Section 304B of the IPC,
but neither decision does so. So far as the first
conclusion is concerned, suffice it to reproduce
Article 20 of the Constitution:
20. Protection in respect of conviction for offences.-
(1) No person shall be convicted of any offence
except for violation of a law in force at the time of
the commission of the act charged as an offence,
nor be subjected to a penalty greater than that
which might have been inflicted under the law in
force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for
Patna High Court CR. APP (SJ) No.261 of 2015 8the same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself.
Even though there may not be any Constitutional
protection to the concept of presumption of
innocence, this is so deeply ingrained in all
Common Law legal systems so as to render it
ineradicable even in India, such that the departure
or deviation from this presumption demands
statutory sanction. This is what the trilogy of dowry
legislation has endeavoured to ordain.
12. In our opinion, it is beyond cavil that where the
same word is used in a section and/or in sundry
segments of a statute, it should be attributed the
same meaning, unless there are compelling reasons
to do otherwise. The obverse is where different
words are employed in close proximity, or in the
same section, or in the same enactment, the
assumption must be that the legislature intended
them to depict disparate situations, and delineate
dissimilar and diverse ramifications. Ergo,
ordinarily Parliament could not have proposed to
ordain that the prosecution should “prove” the
existence of a vital sequence of facts, despite having
employed the word “shown” in Section 304B. The
Patna High Court CR. APP (SJ) No.261 of 2015 9question is whether these two words can be
construed as synonymous. It seems to us that if the
prosecution is required to prove, which always
means beyond reasonable doubt, that a dowry death
has been committed, there is a risk that the purpose
postulated in the provision may be reduced to a
cipher. This method of statutory interpretation has
consistently been disapproved and deprecated
except in exceptional instances where the syntax
permits reading down or reading up of some words
of the subject provisions.
13. In Section 113A of the Evidence Act Parliament
has, in the case of a wife’s suicide, “presumed” the
guilt of the husband and the members of his family.
Significantly, in Section 113B which pointedly
refers to dowry deaths, Parliament has again
employed the word “presume”. However, in
substantially similar circumstances, in the event of
a wife’s unnatural death, Parliament has in Section
304B “deemed” the guilt of the husband and the
members of his family. The Concise Oxford
Dictionary defines the word “presume” as:
supposed to be true, take for granted; whereas
“deem” as: regard, consider; and whereas “show”
as: point out and prove. The Black’s Law
Patna High Court CR. APP (SJ) No.261 of 2015 10Dictionary (5th Edition) defines the word “show”
as- to make apparent or clear by the evidence, to
prove; “deemed” as- to hold, consider, adjudge,
believe, condemn, determine, construed as if true;
“presume” as- to believe or accept on probable
evidence; and “Presumption”, in Black’s, “is a rule
of law, statutory or judicial, by which finding of a
basic fact gives rise to existence of presumed fact,
until presumption is rebutted.” The Concise
Dictionary of Law, Oxford Paperbacks has this
comprehensive yet succinct definition of burden of
proof which is worthy of reproduction:
“Burden of Proof: The duty of a party to litigation
to prove a fact or facts in issue. Generally the
burden of proof falls upon the party who
substantially asserts the truth of a particular fact
(the prosecution or the plaintiff). A distinction is
drawn between the persuasive (or legal) burden,
which is carried by the party who as a matter of law
will lose the case if he fails to prove the fact in
issue; and the evidential burden (burden of
adducing evidence or burden of going forward),
which is the duty of showing that there is sufficient
evidence to raise an issue fit for the consideration
of the trier of fact as to the existence or non-
Patna High Court CR. APP (SJ) No.261 of 2015 11existence of a fact in issue. The normal rule is that a
defendant is presumed to be innocent until he is
proved guilty; it is therefore the duty of the
prosecution to prove its case by establishing both
the actus reus of the crime and the mens rea. It must
first satisfy the evidential burden to show that its
allegations have something to support them. If it
cannot satisfy this burden, the defence may submit
or the judge may direct that there is no case to
answer, and the judge must direct the jury to acquit.
The prosecution may sometimes rely on
presumptions of fact to satisfy the evidential burden
of proof (e.g. the fact that a woman was subjected
to violence during sexual intercourse will normally
raise a presumption to support a charge of rape and
prove that she did not consent). If, however, the
prosecution has established a basis for its case, it
must then continue to satisfy the persuasive burden
by proving its case beyond reasonable doubt (see
proof beyond reasonable doubt). It is the duty of the
judge to tell the jury clearly that the prosecution
must prove its case and that it must prove it beyond
reasonable doubt; if he does not give this clear
direction, the defendant is entitled to be acquitted.
There are some exceptions to the normal rule that
Patna High Court CR. APP (SJ) No.261 of 2015 12the burden of proof is upon the prosecution. The
main exceptions are as follows. (1) When the
defendant admits the elements of the crime (the
actus reus and mens rea) but pleads a special
defence, the evidential burden is upon him to prove
his defence. This may occur, the example, in a
prosecution for murder in which the defendant
raises a defence of self-defence. (2) When the
defendant pleads automatism, the evidential burden
is upon him. (3) When the defendant pleads
insanity, both the evidential and persuasive burden
rest upon him. In this case, however, it is sufficient
if he proves his case on a balance of probabilities
(i.e. he must persuade the jury that it is more likely
that he is telling the truth than not). (4) In some
cases statute expressly places a persuasive burden
on the defendant; for example, a person who carries
an offensive weapon in public is guilty of an offence
unless he proves that he had lawful authority or a
reasonable excuse for carrying it”.
14. As is already noted above, Section 113B of the
Evidence Act and Section 304B of the IPC were
introduced into their respective statutes
simultaneously and, therefore, it must ordinarily be
assumed that Parliament intentionally used the
Patna High Court CR. APP (SJ) No.261 of 2015 13word ‘deemed’ in Section 304B to distinguish this
provision from the others. In actuality, however, it
is well nigh impossible to give a sensible and
legally acceptable meaning to these provisions,
unless the word ‘shown’ is used as synonymous to
‘prove’ and the word ‘presume’ as freely
interchangeable with the word ‘deemed’. In the
realm of civil and fiscal law, it is not difficult to
import the ordinary meaning of the word ‘deem’ to
denote a set of circumstances which call to be
construed contrary to what they actually are. In
criminal legislation, however, it is unpalatable to
adopt this approach by rote. We have the high
authority of the Constitution Bench of this Court
both in State of Travancore-Cochin v. Shanmugha
Vilas Cashewnut Factory AIR 1953 SC 333 and
State of Tamil Nadu v. Arooran Sugars Limited
(1997) 1 SCC 326, requiring the Court to ascertain
the purpose behind the statutory fiction brought
about by the use of the word ‘deemed’ so as to give
full effect to the legislation and carry it to its logical
conclusion. We may add that it is generally posited
that there are rebuttable as well as irrebuttable
presumptions, the latter oftentimes assuming an
artificiality as actuality by means of a deeming
provision. It is abhorrent to criminal jurisprudence
Patna High Court CR. APP (SJ) No.261 of 2015 14to adjudicate a person guilty of an offence even
though he had neither intention to commit it nor
active participation in its commission. It is after
deep cogitation that we consider it imperative to
construe the word ‘shown’ in Section 304B of the
IPC as to, in fact, connote ‘prove’. In other words, it
is for the prosecution to prove that a ‘dowry death’
has occurred, namely, (i) that the death of a woman
has been caused in abnormal circumstances by her
having been burned or having been bodily injured,
(ii) within seven years of a marriage, (iii) and that
she was subjected to cruelty or harassment by her
husband or any relative of her husband, (iv) in
connection with any demand for dowry and (v) that
the cruelty or harassment meted out to her
continued to have a causal connection or a live link
with the demand of dowry. We are aware that the
word ‘soon’ finds place in Section 304B; but we
would prefer to interpret its use not in terms of days
or months or years, but as necessarily indicating
that the demand for dowry should not be stale or an
aberration of the past, but should be the continuing
cause for the death under Section 304B or the
suicide under Section 306 of the IPC. Once the
presence of these concomitants are established or
shown or proved by the prosecution, even by
Patna High Court CR. APP (SJ) No.261 of 2015 15preponderance of possibility, the initial
presumption of innocence is replaced by an
assumption of guilt of the accused, thereupon
transferring the heavy burden of proof upon him
and requiring him to produce evidence dislodging
his guilt, beyond reasonable doubt. It seems to us
that what Parliament intended by using the word
‘deemed’ was that only preponderance of evidence
would be insufficient to discharge the husband or
his family members of their guilt. This
interpretation provides the accused a chance of
proving their innocence. This is also the postulation
of Section 101 of the Evidence Act. The purpose of
Section 113B of the Evidence Act and Section 304B
of the IPC, in our opinion, is to counter what is
commonly encountered – the lack or the absence of
evidence in the case of suicide or death of a woman
within seven years of marriage. If the word “shown”
has to be given its ordinary meaning then it would
only require the prosecution to merely present its
evidence in Court, not necessarily through oral
deposition, and thereupon make the accused lead
detailed evidence to be followed by that of the
prosecution. This procedure is unknown to Common
Law systems, and beyond the contemplation of the
Cr.P.C.
Patna High Court CR. APP (SJ) No.261 of 2015 16
15. The width and amplitude of a provision deeming
the guilt of a person in a legal system founded on a
Constitution needs to be briefly reflected on. The
Constitution is the grundnorm on which the legal
framework has to be erected and its plinth cannot
be weakened for fear of the entire structure falling
to the ground. If the Constitution expressly affirms
or prohibits particular state of affairs, all statutory
provisions which are incongruent thereto must be
held as ultra vires and, therefore, must not be
adhered to. We have already noted that Article 20
of our Constitution while not affirming the
presumption of innocence does not prohibit it,
thereby, leaving it to Parliament to ignore it
whenever found by it to be necessary or expedient.
A percutaneous scrutiny reveals that some legal
principles such as presumption of innocence can be
found across a much wider legal system,
ubiquitously in the Common Law system, and
restrictively in the Civil Law system. It seems to us
that the presumption of innocence is one such legal
principle which strides the legal framework of
several countries owing allegiance to the Common
Law; even International Law bestows its
imprimatur thereto. Article 11.1 of the Universal
Declaration of Human Rights, 1948 states –
Patna High Court CR. APP (SJ) No.261 of 2015 17“Everyone charged with a penal offence has the
right to be presumed innocent until proved guilty
according to law in a public trial at which he has
had all the guarantees necessary for his defence.”
Article 14(3)(g) of the International Covenant on
Civil and Political Rights, 1966, assures as a
minimum guarantee that everyone has a right not to
be compelled to testify against himself or to confess
guilt. Article 6 of the European Convention for the
Protection of Human Rights and Fundamental
Freedoms, firstly, promises the right to a fair trial
and secondly, assures that anyone charged with a
criminal offence shall be presumed innocent until
proved guilty according to law. We may
immediately emphasise that the tenet of presumed
innocence will always give way to explicit
legislation to the contrary. The presumption of
innocence has also been recognised in certain
circumstances to constitute a basic human right.
Parliament, however, has been tasked with the
responsibility of locating myriad competing, if not
conflicting, societal interests. It is quite apparent
that troubled by the exponential increase in the
incidents of bride burning, Parliament thought it
prudent, expedient and imperative to shift the
burden of proof in contradistinction to the onus of
Patna High Court CR. APP (SJ) No.261 of 2015 18proof on to the husband and his relatives in the
cases where it has been shown that a dowry death
has occurred. The inroad into or dilution of the
presumption of innocence of an accused has, even
de hors statutory sanction, been recognised by
Courts in those cases where death occurs in a home
where only the other spouse is present; as also
where an individual is last seen with the deceased.
The deeming provision in Section 304B is,
therefore, neither a novelty in nor an anathema to
our criminal law jurisprudence.[See Mir
Mohammad Omar and Subramaniam v. State of
Tamil Nadu (2009) 14 SCC 415.
16. It has already been pointed out that both in
Pathan Hussain Basha as well as in Ashok Kumar
v. State of Haryana 2010 (12) SCC 350, authored
by our same learned Brother, the use of word
“shown” in Section 304B has palpably not been
given due weightage inasmuch as it has been freely
substituted by the word “proved”. To the contrary in
Nallam Veera Stayanandam v. Public Prosecutor
2004 (10) SCC 769, it has been opined that “it is for
the defence in this case to satisfy the Court that
irrespective of the prosecution case in regard to
dowry demand and harassment, the death of the
Patna High Court CR. APP (SJ) No.261 of 2015 19deceased has not occurred because of that and that
the same resulted from a cause totally alien to such
dowry demand or harassment.
17. Keeping in perspective that Parliament has
employed the amorphous pronoun/noun “it” (which
we think should be construed as an allusion to the
prosecution), followed by the word “shown” in
Section 304B, the proper manner of interpreting the
Section is that “shown” has to be read up to mean
“prove” and the word “deemed” has to be read
down to mean “presumed”. Neither life nor liberty
can be emasculated without providing the
individual an opportunity to disclose extenuating or
exonerating circumstances. It was for this reason
that this Court struck down the mandatory death
sentence in Section 303 IPC in its stellar decision in
Mithu vs. State of Punjab, AIR 1983 SC 473.
Therefore, the burden of proof weighs on the
husband to prove his innocence by dislodging his
deemed culpability, and that this has to be preceded
only by the prosecution proving the presence of
three factors, viz. (i) the death of a woman in
abnormal circumstances (ii) within seven years of
her marriage, and (iii) and that the death had a live
link with cruelty connected with any demand of
Patna High Court CR. APP (SJ) No.261 of 2015 20dowry. The other facet is that the husband has
indeed a heavy burden cast on his shoulders in that
his deemed culpability would have to be displaced
and overturned beyond reasonable doubt. This
emerges clearly as the manner in which Parliament
sought to combat the scourge and evil of rampant
bride burning or dowry deaths, to which manner we
unreservedly subscribe. In order to avoid prolixity
we shall record that our understanding of the law
finds support in an extremely extensive and erudite
judgment of this Court in P.N. Krishna Lal v.
Government of Kerala, 1995 Supp (2) SCC 187, in
which decisions spanning the globe have been
mentioned and discussed. It is also important to
highlight that Section 304B does not require the
accused to give evidence against himself but casts
the onerous burden to dislodge his deemed guilt
beyond reasonable doubt. In our opinion, it would
not be appropriate to lessen the husband’s onus to
that of preponderance of probability as that would
annihilate the deemed guilt expressed in Section
304B, and such a curial interpretation would defeat
and neutralise the intentions and purposes of
Parliament. A scenario which readily comes to
mind is where dowry demands have indubitably
been made by the accused husband, where in an
Patna High Court CR. APP (SJ) No.261 of 2015 21agitated state of mind, the wife had decided to leave
her matrimonial home, and where while travelling
by bus to her parents’ home she sustained fatal burn
injuries in an accident/collision which that bus
encountered. Surely, if the husband proved that he
played no role whatsoever in the accident, he could
not be deemed to have caused his wife’s death. It
needs to be immediately clarified that if the wife
had taken her life by jumping in front of a bus or
before a train, the husband would have no defence.
Examples can be legion, and hence we shall abjure
from going any further. All that needs to be said is
that if the husband proves facts which portray,
beyond reasonable doubt, that he could not have
caused the death of his wife by burns or bodily
injury or not involved in any manner in her death in
abnormal circumstances, he would not be culpable
under Section 304B.”
8. This case, as stated hereinabove, has some sort of
peculiarity in the background of examination of DW, who during
course of her evidence admitted death of deceased by fire, though
suicidal in nature, however, proper appreciation will be at the relevant
stage of judgment, save and except acknowledging that whenever
defence witness is examined, then in that event, the divulgence of fact
Patna High Court CR. APP (SJ) No.261 of 2015 22
coming out from his evidence can go against accused as has been held
by the Apex Court in Ashok Kumar vs. State of Haryana reported in
(2010) 12 SCC 350.
9. From the evidence of DW-1, it is apparent that though
she had not disclosed the time span over marriage, but had admitted
that deceased died of burnt at her sasural and for that, she explained it
as suicide. In the aforesaid background, when the evidence of PW-4
Dr. Ramanand Chaudhary is taken up, it is apparent that deceased
died of burnt injury. He further perceived following ante mortem
injuries:-
Scalp, eyebrow and pubic hairs were singed.
Kerosene oil like smell perceived, in the smell of the body of
deceased. Dermoepidermat burn wound was seen over the face,
neck, front and back portion of trunk. Upper limbs, both lower
limbs including both sole of feets and genetalia. Black soots were
seen over burnt portion of the body.
On dissection-The mucosa of respiratory passage
was congested, All internal organs in general liver, spleen and
both kidneys were found congested. Both lungs were congested.
Right chamber of heart was full and left empty. Urinary bladder
was empty, uterus was non-pregnant. Stomach was empty. The
brain and its meninges was congested.
Opinion- The above noted burn injuries were ante
mortem in nature. Death resulted from hypovolemic shock, due to
Patna High Court CR. APP (SJ) No.261 of 2015 23above mentioned injuries caused by flame fire. Time elapsed since
death was 18 to 24 Hrs. from the time of P. M. Examination.
And further, kerosene oil happens to be source of
ignition, therefore, death by burnt is found out of controversy.
10. With regard to other ingredients, the time span should
be within seven years of marriage. It is apparent that right from fard-
bayan, there happens to be disclosure at the end of the informant, PW-
6, father of deceased that death occurred within six years of her
marriage and is found intact even during course of evidence which
PW-5 in Para-4 of his examination-in-chief had reiterated and stood
firm during course of cross-examination at Para-11, apart from being
substantiated by other PWs. Therefore, this issue also found duly
proved.
11. Now, the cumulative aspect happens to be regarding
demand of dowry and further, subject of cruelty or harassment to the
deceased soon before her death. On the above score, two kinds of
evidence have been adduced. The first one relates with oral dying
declaration having made by the deceased and the second one direct
evidence by the PWs on this score.
12. Now, coming to reliability of oral dying declaration,
it is evident that all the material witnesses have stated that when they
reached at the house of deceased, the main door was found closed
Patna High Court CR. APP (SJ) No.261 of 2015 24
from outside, whereupon was opened. During said course, heard
sound of groaning of deceased whereupon they gone near her,
enquired whereupon deceased disclosed that in the background of
persistent demand of dowry appertaining to Rs.30,000/-, which
remained due, the husband sprinkled kerosene oil and then, mother-in-
law set fire, and at that very time, Bhulla and Bhagwan enticed them.
During cross-examination, as is evident, PW-1 was not all cross-
examined on the score whether deceased was dead since before their
arrival, or deceased was not at all in a position to make any kind of
disclosure. However, from Para-5, he had stated that he came to know
on the disclosure having made before him. PW-2, in likewise manner,
also not been cross-examined on the physical mental condition of the
deceased as well as she was dead since before their arrival, or was not
in a position to make any statement. PW-3 also not been cross-
examined to that effect. However, at Para-16, he had stated with
regard to physical condition of the deceased on their arrival. PW-5,
under Para-13, had stated regarding physical condition of the deceased
whom they had seen after entrance in the house, but again, defence
did not dare to test his status over dying declaration. PW-6 also not
specifically been cross-examined and in similarity, PW-7 and PW-8,
have also been cross-examined. Furthermore, as is evident that by
way of cross-examination, the defence drew attention of each of the
Patna High Court CR. APP (SJ) No.261 of 2015 25
PW on substantial part of their evidence, but the same has not been
confronted to PW-10, the I.O. and that being so, it could very well be
said that no material development have been found in the evidence of
each PWs. Apart from this, as stated above, PW-4, doctor has not
been cross-examined to suggest that there was no possibility of
deceased being in position to make dying declaration.
13. Coming on the score of admissibility, acceptability
of oral dying declaration that has been subject of minute scrutiny in
Vijay Pal vs. State (GNCT) of Delhi reported in 2015 CRI.L.J. 2041,
it has been held:-
“15. The submission of the learned counsel for the
appellant is that the oral dying declaration lacks
intrinsic truth and it does not deserve acceptance.
At this juncture we think it appropriate to refer to
certain authorities how an oral dying declaration is
to be scrutinized.
16. In the case of Laxman v. State of
Maharashtra[(2002) 6 SCC 710], the Constitution
Bench has held thus:
“The juristic theory regarding acceptability of a
dying declaration is that such declaration is made
in extremity, when the party is at the point of death
and when every hope of this world is gone, when
Patna High Court CR. APP (SJ) No.261 of 2015 26every motive to falsehood is silenced, and the man
is induced by the most powerful consideration to
speak only the truth. Notwithstanding the same,
great caution must be exercised in considering the
weight to be given to this species of evidence on
account of the existence of many circumstances
which may affect their truth. The situation in which
a man is on the deathbed is so solemn and serene, is
the reason in law to accept the veracity of his
statement. It is for this reason the requirements of
oath and cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the courts insist that the dying
declaration should be of such a nature as to inspire
full confidence of the court in its truthfulness and
correctness. The court, however, has always to be
on guard to see that the statement of the deceased
was not as a result of either tutoring or prompting
or a product of imagination. The court also must
further decide that the deceased was in a fit state of
mind and had the opportunity to observe and
identify the assailant. Normally, therefore, the court
in order to satisfy whether the deceased was in a fit
mental condition to make the dying declaration
looks up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit and
Patna High Court CR. APP (SJ) No.261 of 2015 27conscious state to make the declaration, the medical
opinion will not prevail, nor can it be said that
since there is no certification of the doctor as to the
fitness of the mind of the declarant, the dying
declaration is not acceptable. A dying declaration
can be oral or in writing and any adequate method
of communication whether by words or by signs or
otherwise will suffice provided the indication is
positive and definite.”
17. The aforesaid judgment makes it absolutely
clear that the dying declaration can be oral or in
writing and any adequate method of communication
whether by words or by signs or otherwise will
suffice, provided the communication is positive and
definite. There cannot be any cavil over the
proposition that a dying declaration cannot be
mechanically relied upon. In fact, it is the duty of
the Court to examine a dying declaration with
studied scrutiny to find out whether the same is
voluntary, truthful and made in a conscious state of
mind and further it is without any influence.
18. At this juncture, we may quote a passage from
Babulal v. State of M.P.[(2003) 12 SCC 490]
wherein the value of dying declaration in evidence
has been stated:-
Patna High Court CR. APP (SJ) No.261 of 2015 28
“7. … A person who is facing imminent death, with
even a shadow of continuing in this world
practically non-existent, every motive of falsehood
is obliterated. The mind gets altered by most
powerful ethical reasons to speak only the truth.
Great solemnity and sanctity is attached to the
words of a dying person because a person on the
verge of death is not likely to tell lies or to concoct
a case so as to implicate an innocent person. The
maxim is “a man will not meet his Maker with a lie
in his mouth” (nemo moriturus praesumitur
mentiri). Mathew Arnold said, “truth sits on the lips
of a dying man”. The general principle on which the
species of evidence is admitted is that they are
declarations made in extremity, when the party is at
the point of death, and when every hope of this
world is gone, when every motive to falsehood is
silenced and mind induced by the most powerful
consideration to speak the truth; situation so
solemn that law considers the same as creating an
obligation equal to that which is imposed by a
positive oath administered in a court of justice.”
19. Dealing with the oral dying declaration, a two-
Judge Bench in Prakash V. State of M.P.[(1992) 4
SCC 225] has stated thus:
Patna High Court CR. APP (SJ) No.261 of 2015 29
“11. … In the ordinary course, the members of the
family including the father were expected to ask the
victim the names of the assailants at the first
opportunity and if the victim was in a position to
communicate, it is reasonably expected that he
would give the names of the assailants if he had
recognised the assailants. In the instant case there
is no occasion to hold that the deceased was not in
a position to identify the assailants because it is
nobody’s case that the deceased did not know the
accused persons. It is therefore quite likely that on
being asked the deceased would name the
assailants. In the facts and circumstances of the
case the High Court has accepted the dying
declaration and we do not think that such a finding
is perverse and requires to be interfered with.”
20. Thus, the law is quite clear that if the dying
declaration is absolutely credible and nothing is
brought on record that the deceased was in such a
condition, he or she could not have made a dying
declaration to a witness, there is no justification to
discard the same. In the instant case, PW-1 had
immediately rushed to the house of the deceased
and she had told him that her husband had poured
kerosene on her. The plea taken by the appellant
that he has been falsely implicated because his
Patna High Court CR. APP (SJ) No.261 of 2015 30money was deposited with the in-laws and they
were not inclined to return, does not also really
breathe the truth, for there is even no suggestion to
that effect.
21. It is contended by the learned counsel for the
appellant when the deceased sustained 100% burn
injuries, she could not have made any statement to
her brother. In this regard, we may profitably refer
to the decision in Mafabhai Nagarbhai Raval v.
State of Gujarat[(1992) 4 SCC 69] wherein it has
been held a person suffering 99% burn injuries
could be deemed capable enough for the purpose of
making a dying declaration. The Court in the said
case opined that unless there existed some inherent
and apparent defect, the trial Court should not have
substituted its opinion for that of the doctor. In the
light of the facts of the case, the dying declaration
was found to be worthy of reliance.
22. In State of Madhya Pradesh v. Dal Singh and
Others[(2013)14 SCC 159], a two-Judge Bench
placed reliance on the dying declaration of the
deceased who had suffered 100% burn injuries on
the ground that the dying declaration was found to
be credible.”
14. At the present juncture, deficiency persisting on
Patna High Court CR. APP (SJ) No.261 of 2015 31
record, though not raised on behalf of appellants, have been perceived
which relates with manner of recording of statement of appellants
under Section 313 Cr.P.C. From plain reading of the same, it is
evident that learned trial Court confronted the incriminating
circumstances in generic way, however failed to confront with the
event of dying declaration. However, the impact of such omission on
trial, has been taken into consideration by the Apex Court in Nar
Singh vs. State of Haryana reported in 2015 CRI.L.J. 576,
whereunder it has been held:-
“16. Undoubtedly, the importance of a statement
under Section 313 Cr.P.C., insofar as the accused is
concerned, can hardly be minimised. The statutory
provision is based on the rules of natural justice for
an accused, who must be made aware of the
circumstances being put against him so that he can
give a proper explanation to meet that case. If an
objection as to Section 313 Cr.P.C. statement is
taken at the earliest stage, the Court can make good
the defect and record additional statement of the
accused as that would be in the interest of all. When
objections as to defective Section 313 Cr.P.C.
statement is raised in the appellate court, then
difficulty arises for the prosecution as well as the
accused. When the trial court is required to act in
Patna High Court CR. APP (SJ) No.261 of 2015 32accordance with the mandatory provisions of
Section 313 Cr.P.C., failure on the part of the trial
court to comply with the mandate of the law, in our
view, cannot automatically enure to the benefit of
the accused. Any omission on the part of the Court
to question the accused on any incriminating
circumstance would not ipso facto vitiate the trial,
unless some material prejudice is shown to have
been caused to the accused. Insofar as non-
compliance of mandatory provisions of Section 313
Cr.P.C., it is an error essentially committed by the
learned Sessions Judge. Since justice suffers in the
hands of the Court, the same has to be corrected or
rectified in the appeal.
17. So far as Section 313 Cr.P.C. is concerned,
undoubtedly, the attention of the accused must
specifically be brought to inculpable pieces of
evidence to give him an opportunity to offer an
explanation, if he chooses to do so. A three-Judge
Bench of this Court in Wasim Khan v. The State of
Uttar Pradesh, AIR 1956 SC 400; and Bhoor
Singh Anr. v. State of Punjab, AIR 1974 SC
1256 held that every error or omission in
compliance of the provisions of Section 342 of the
old Cr.P.C. does not necessarily vitiate trial. The
accused must show that some prejudice has been
Patna High Court CR. APP (SJ) No.261 of 2015 33caused or was likely to have been caused to him.
18. Observing that omission to put any material
circumstance to the accused does not ipso facto
vitiate the trial and that the accused must show
prejudice and that miscarriage of justice had been
sustained by him, this Court in Santosh Kumar
Singh v. State through CBI, 2010(4)
R.C.R.(Criminal) 593 : 2010(5) Recent Apex
Judgments (R.A.J.) 518 : (2010) 9 SCC 747 (Para
92), has held as under:
“… the facts of each case have to be
examined but the broad principle is that all
incriminating material circumstances must
be put to an accused while recording his
statement under Section 313 of the Code,
but if any material circumstance has been
left out that would not ipso facto result in
the exclusion of that evidence from
consideration unless it could further be
shown by the accused that prejudice and
miscarriage of justice had been sustained by
him…”
19. In Paramjeet Singh alias Pamma v. State of
Uttarakhand (supra), this Court has held as
under:-
Patna High Court CR. APP (SJ) No.261 of 2015 34
“Thus, it is evident from the above that the
provisions of Section 313 Cr.P.C. make it
obligatory for the court to question the
accused on the evidence and circumstances
against him so as to offer the accused an
opportunity to explain the same. But, it
would not be enough for the accused to
show that he has not been questioned or
examined on a particular circumstance,
instead, he must show that such non-
examination has actually and materially
prejudiced him and has resulted in the
failure of justice. In other words, in the
event of any inadvertent omission on the
part of the court to question the accused on
an incriminating circumstance cannot ipso
facto vitiate the trial unless it is shown that
some material prejudice was caused to the
accused by the omission of the court.”
20. The question whether a trial is vitiated or not
depends upon the degree of the error and the
accused must show that non-compliance of Section
313 Cr.P.C. has materially prejudiced him or is
likely to cause prejudice to him. Merely because of
defective questioning under Section 313 Cr.P.C., it
cannot be inferred that any prejudice had been
Patna High Court CR. APP (SJ) No.261 of 2015 35caused to the accused, even assuming that some
incriminating circumstances in the prosecution case
had been left out. When prejudice to the accused is
alleged, it has to be shown that accused has
suffered some disability or detriment in relation to
the safeguard given to him under Section 313
Cr.P.C. Such prejudice should also demonstrate
that it has occasioned failure of justice to the
accused. The burden is upon the accused to prove
that prejudice has been caused to him or in the facts
and circumstances of the case, such prejudice may
be implicit and the Court may draw an inference of
such prejudice. Facts of each case have to be
examined to determine whether actually any
prejudice has been caused to the appellant due to
omission of some incriminating circumstances
being put to the accused.
21. We may refer to few judgments of this Court
where this Court has held that omission to put the
question under Section 313 Cr.P.C. has caused
prejudice to the accused vitiating the conviction. In
State of Punjab v. Hari Singh Ors. (2009) 4
SCC 200, question regarding conscious possession
of narcotics was not put to the accused when he was
examined under Section 313 Cr.P.C. Finding that
question relating to conscious possession of
Patna High Court CR. APP (SJ) No.261 of 2015 36contraband was not put to the accused, this Court
held that the effect of such omission vitally affected
the prosecution case and this Court affirmed the
acquittal. In Kuldip Singh Ors. v. State of Delhi
2004(1) R.C.R.(Criminal) 292 : (2003) 12 SCC
528, this Court held that when important
incriminating circumstance was not put to the
accused during his examination under Section 313
Cr.P.C., prosecution cannot place reliance on the
said piece of evidence.
22. We may also refer to other set of decisions
where in the facts and circumstances of the case,
this Court held that no prejudice or miscarriage of
justice has been occasioned to the accused. In
Santosh Kumar Singh v. State thr. CBI (supra), it
was held that on the core issues pertaining to the
helmet and the ligature marks on the neck which
were put to the doctor, the defence counsel had
raised comprehensive arguments before the trial
court and also before the High Court and the
defence was, therefore, alive to the circumstances
against the appellant and that no prejudice or
miscarriage of justice had been occasioned. In
Alister Anthony Pareira v. State of Maharashtra
2012(1) R.C.R.(Criminal) 524 : 2012(1) Recent
Apex Judgments 43 : (2012) 2 SCC 648, in the
Patna High Court CR. APP (SJ) No.261 of 2015 37facts and circumstances, it was held that by not
putting to the appellant expressly the chemical
analyser’s report and the evidence of the doctor, no
prejudice can be said to have been caused to the
appellant and he had full opportunity to say what he
wanted to say with regard to the prosecution
evidence and that the High Court rightly rejected
the contention of the appellant-accused in that
regard.
23. When such objection as to omission to put the
question under Section 313 Cr.P.C. is raised by the
accused in the appellate court and prejudice is also
shown to have been caused to the accused, then
what are the courses available to the appellate
court? The appellate court may examine the convict
or call upon the counsel for the accused to show
what explanation the accused has as regards the
circumstances established against him but not put
to him under Section 313 Cr.P.C. and the said
answer can be taken into consideration.
24. In Shivaji Sahabrao Bobade Anr. v. State of
Maharashtra (1973) 2 SCC 793, this Court
considered the fallout of the omission to put a
question to the accused on vital circumstance
appearing against him and this Court has held that
the appellate court can question the counsel for the
Patna High Court CR. APP (SJ) No.261 of 2015 38accused as regards the circumstance omitted to be
put to the accused and in para 16 it was held as
under:-
“…. It is trite law, nevertheless fundamental,
that the prisoner’s attention should be
drawn to every inculpatory material so as to
enable him to explain it. This is the basic
fairness of a criminal trial and failures in
this area may gravely imperil the validity of
the trial itself, if consequential miscarriage
of justice has flowed. However, where such
an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice
occasioned by such defect must be
established by the accused. In the event of
evidentiary material not being put to the
accused, the Court must ordinarily eschew
such material from consideration. It is also
open to the appellate Court to call upon the
counsel for the accused to show what
explanation the accused has as regards the
circumstances established against him but
not put to him and if the accused is unable
to offer the appellate Court any plausible or
reasonable explanation of such
circumstances, the Court may assume that
Patna High Court CR. APP (SJ) No.261 of 2015 39no acceptable answer exists and that even if
the accused had been questioned at the
proper time in the trial Court he would not
have been able to furnish any good ground
to get out of the circumstances on which the
trial Court had relied for its conviction. In
such a case, the Court proceeds on the
footing that though a grave irregularity has
occurred as regards compliance with
Section 342, Cr.P.C., the omission has not
been shown to have caused prejudice to the
accused….” (underlining added)
25. The same view was reiterated by this Court in
State (Delhi Administration) v. Dharampal,
2001(4) R.C.R.(Criminal) 550 : (2001) 10 SCC
372, wherein this Court has held as under:-
“Thus it is to be seen that where an
omission, to bring the attention of the
accused to an inculpatory material has
occurred that does not ipso facto vitiate the
proceedings. The accused must show that
failure of justice was occasioned by such
omission. Further, in the event of an
inculpatory material not having been put to
the accused, the appellate Court can always
make good that lapse by calling upon the
Patna High Court CR. APP (SJ) No.261 of 2015 40counsel for the accused to show what
explanation the accused has as regards the
circumstances established against the
accused but not put to him.
This being the law, in our view, both the
Sessions Judge and the High Court were
wrong in concluding that the omission to put
the contents of the certificate of the
Director, Central Food Laboratory, could
only result in the accused being acquitted.
The accused had to show that some
prejudice was caused to him by the report
not being put to him. Even otherwise, it was
the duty of the Sessions Judge and/or the
High Court, if they found that some vital
circumstance had not been put to the
accused, to put those questions to the
counsel for the accused and get the answers
of the accused. If the accused could not give
any plausible or reasonable explanation, it
would have to be assumed that there was no
explanation. Both the Sessions Judge and
the High Court have overlooked this
position of law and failed to perform their
duties and thereby wrongly acquitted the
accused.”
Patna High Court CR. APP (SJ) No.261 of 2015 41
26. This Court has thus widened the scope of the
provisions concerning the examination of the
accused after closing prosecution evidence and the
explanation offered by the counsel of the accused at
the appeal stage was held to be a sufficient
substitute for the answers given by the accused
himself.
27. The point then arising for our consideration is,
if all relevant questions were not put to accused by
the trial court as mandated under Section 313
Cr.P.C. and where the accused has also shown that
prejudice has been caused to him or where
prejudice is implicit, whether the appellate court is
having the power to remand the case for re-
decision from the stage of recording of statement
under Section 313 Cr.P.C. Section 386 Cr.P.C.
deals with power of the appellate court. As per sub-
clause (b) (i) of Section 386 Cr.P.C., the appellate
court is having power to order retrial of the case by
a court of competent jurisdiction subordinate to
such appellate court. Hence, if all the relevant
questions were not put to accused by the trial court
and when the accused has shown that prejudice was
caused to him, the appellate court is having power
to remand the case to examine the accused again
under Section 313 Cr.P.C. and may direct
Patna High Court CR. APP (SJ) No.261 of 2015 42remanding the case again for re-trial of the case
from that stage of recording of statement under
Section 313 Cr.P.C. and the same cannot be said to
be amounting to filling up lacuna in the prosecution
case.
28. In Asraf Ali v. State of Assam 2008(3)
R.C.R.(Criminal) 835 : 2008(4) Recent Apex
Judgments (R.A.J.) 570 : (2008) 16 SCC 328, this
Court has examined the scope and object of
examination of accused under Section 313 Cr.P.C.
and in para (24) it was observed that in certain
cases when there is perfunctory examination under
Section 313 of the Code, the matter could be
remitted to the trial court with a direction to retry
from the stage at which the prosecution was closed.
29. In Ganeshmal Jashraj v. Government of
Gujarat Anr., (1980) 1 SCC 363, after closure of
evidence of the prosecution and examination of
accused under Section 313 Cr.P.C. was completed,
the accused admitted his guilt presumably as a
result of plea bargaining and the accused was
convicted. Pointing out that the approach of the
trial court was influenced by the admission of guilt
made by the accused and that conviction of the
accused cannot be sustained, this Court has
remanded case to trial court to proceed afresh from
Patna High Court CR. APP (SJ) No.261 of 2015 43the stage of examination under Section 313 Cr.P.C.
30. Whenever a plea of omission to put a question
to the accused on vital piece of evidence is raised in
the appellate court, courses available to the
appellate court can be briefly summarised as under
:-
(i) Whenever a plea of non-compliance of
Section 313 Cr.P.C. is raised, it is within the
powers of the appellate court to examine
and further examine the convict or the
counsel appearing for the accused and the
said answers shall be taken into
consideration for deciding the matter. If the
accused is unable to offer the appellate
court any reasonable explanation of such
circumstance, the court may assume that the
accused has no acceptable explanation to
offer;
(ii) In the facts and circumstances of the
case, if the appellate court comes to the
conclusion that no prejudice was caused or
no failure of justice was occasioned, the
appellate court will hear and decide the
matter upon merits.
(iii) If the appellate court is of the opinion
that non-compliance with the provisions of
Patna High Court CR. APP (SJ) No.261 of 2015 44Section 313 Cr.P.C. has occasioned or is
likely to have occasioned prejudice to the
accused, the appellate court may direct
retrial from the stage of recording the
statements of the accused from the point
where the irregularity occurred, that is,
from the stage of questioning the accused
under Section 313 Cr.P.C. and the trial
Judge may be directed to examine the
accused afresh and defence witness if any
and dispose of the matter afresh;
(iv) The appellate court may decline to remit
the matter to the trial court for retrial on
account of long time already spent in the
trial of the case and the period of sentence
already undergone by the convict and in the
facts and circumstances of the case, may
decide the appeal on its own merits, keeping
in view the prejudice caused to the
accused.”
Now, coming to the present case, it is apparent that
neither this point was raised at the end of appellants during course of
argument nor been able to show what kind of prejudice they faced on
account of such omission. Moreover, the appellants, as faced the trial
was very much aware with the nature of evidence having been
Patna High Court CR. APP (SJ) No.261 of 2015 45adduced on behalf of prosecution against them. Therefore, it could not
be said that such omission has any way caused prejudice to the
appellants.
15. Now, the second part of evidence having been
adduced on behalf of prosecution is coming out from the evidence of
PW-6, informant, father of the deceased. Right from fard-bayan, there
happens to be specific disclosure that on account of due amount of
dowry of Rs.30,000/-, deceased was frequently subjected to dowry
which, he during course of evidence also reiterated. No cross-
examination has been made on behalf of appellants in a way to
demolish such assertion.
16. In Gangabhavani vs. Rayapati Venkat Reddy
others reported in 2013 CRI.L.J. 4618, it has been held:-
“17. This Court in Laxmibai (Dead) Thr. L.Rs.
Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. Ors.,
AIR 2013 SC 1204 examined the effect of non- cross
examination of witness on a particular
fact/circumstance and held as under:
“31. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a
party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his
Patna High Court CR. APP (SJ) No.261 of 2015 46statement by drawing his attention to that part of it,
which has been objected to by the other party, as
being untrue. Without this, it is not possible to
impeach his credibility. Such a law has been
advanced in view of the statutory provisions
enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in evidence
by him during his initial examination in chief, and
the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which permits a
witness to be questioned, inter-alia, in order to test
his veracity. Thereafter, the unchallenged part of
his evidence is to be relied upon, for the reason that
it is impossible for the witness to explain or
elaborate upon any doubts as regards the same, in
the absence of questions put to him with respect to
the circumstances which indicate that the version of
events provided by him, is not fit to be believed, and
the witness himself, is unworthy of credit. Thus, if a
party intends to impeach a witness, he must provide
adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same
is essential to ensure fair play and fairness in
dealing with witnesses.” (Emphasis supplied)
(See also: Rohtash Kumar v. State of Haryana, JT
Patna High Court CR. APP (SJ) No.261 of 2015 472013 (8) SC 181; and Gian Chand Ors. v. State
of Haryana, JT 2013 (10) SC 515).
18. Thus, it becomes crystal clear that the defence
cannot rely on nor can the court base its finding on
a particular fact or issue on which the witness has
not made any statement in his examination-in- chief
and the defence has not cross examined him on the
said aspect of the matter.”
17. It has been submitted on behalf of learned counsel for
the appellants that the evidence of all the witnesses is fit to be brushed
aside on account of being unreliable. In order to substantiate the same,
it has been submitted that in spite of claiming their presence, PW-1,
PW-2, PW-3 have not said a word against the appellants over demand
of dowry and further, torture having inflicted over the deceased since
before her death on that very score and so, the evidence of PW-5 as
well as PW-6 should not be accepted on that very score. Furthermore,
it has been argued that when there happens to be plausible explanation
at the end of the accused regarding death of the deceased, then in that
event, accepting the same, appellant should have been acquitted.
18. Furthermore, it has also been submitted that
unreliability of the witnesses is itself apparent from their conduct
which, after going through their evidences will suggest. The
prosecution took a novel method by making a disclosure that they
Patna High Court CR. APP (SJ) No.261 of 2015 48
reached at the appellants place till then, deceased was alive, who on
query, had disclosed the whole event which would not have been in
the background of the finding recorded by the doctor PW-4, found
hundred per cent ante mortem burn injuries. Furthermore, the
witnesses are inconsistent with regard to verbal narration of the so
alleged oral dying declaration as well as with regard to physical
condition of the deceased and that being so, the dying declaration
having at the end of the prosecution to be the major plank of evidence
is found non-recognizable in the eye of law. That being so, the
prosecution version should not have been relied upon.
19. It has also been submitted that from the evidence of
PW-10, the I.O., it is evident that apart from fallacious investigation
conducted by him, he going to camp of the prosecution, had tried to
give undue advantage and further, under such activity, he failed to
inspect the P.O. properly. Had there been a proper investigation, then
in that event, the objective finding would have suggested probability
of the defence case justifying the evidence of the defence witness
disclosing commission of suicide and further, at that very moment,
none of the family members were present and so, the finding of the
learned lower Court requires reappraisal.
20. It has also been submitted that once on the similar
kind of evidence, the other co-accused have already been acquitted,
Patna High Court CR. APP (SJ) No.261 of 2015 49
then in that event, appellants would not have been convicted. So, the
cumulative effect nullify the judgment impugned.
21. Per contra, it has been submitted on behalf of learned
Additional Public Prosecutor that death is no more under controversy,
death within seven years of marriage is also not been challenged, then
in that event, the other ancillary event as projected by the learned
counsel for the appellants would have no impact upon the fate of the
prosecution on account of consistent evidence on that very score. That
being so, the judgment of conviction and sentence recorded by the
learned lower Court is found maintainable.
22. Having minute observation of the evidence as
discussed above, it is evident that the death within span of seven years
from the date of marriage and demand of dowry followed with
treatment meted out to the deceased soon before death is found duly
substantiated. Furthermore, complicity of the appellants also found
duly proved.
23. In the aforesaid background, now, it could very well
be said that it happens to be a case of dowry death and on account
thereof, the appellants would have an opportunity to rebut which they
availed by way of examine one DW Ghurni Devi. When the evidence
of Ghurni Devi has been gone through, it is evident that the villagers,
after seeing smoke coming out from the house of the appellants,
Patna High Court CR. APP (SJ) No.261 of 2015 50
rushed. The door, which was closed from inside was broken and then,
villagers gone inside the house where they saw the victim dead on
account of being burnt. The aforesaid event though introduced but
found shaky one as from the evidence of PW-10, the I.O., it is
apparent that appellants have not cross-examined PW-10 on that very
score, even suggesting that he failed to inspect the door, the latches
affixed thereupon. Moreover, had there been it a case of suicide, then
in that event, having presence of dead body in static position lying on
the ground would not have been visualized. Not only this, some sort
of ancillary event would have also been visualized by way of burning
of thatched wall as well as presence of shadow of flame, the bed-
sheet, the bed also have been burnt which has not been found by the
I.O.
24. Acquittal of co-accused would not be a ground for
acquittal of other co-accused in case there happens to be substantial
evidence against him. Considering the present nature of the case in
consonance with the status of appellants and further, the crime having
been committed within four corner of the house as well as oral dying
declaration identifying the appellants to be perpetrator of the crime
did not justify the claim of the appellants to be treated at par with the
accused having been acquitted.
25. That being so, both the appeal san merit and are
Patna High Court CR. APP (SJ) No.261 of 2015 51
accordingly, dismissed. Appellants are under custody, which they
remain till saturation of the period of sentence.
(Aditya Kumar Trivedi, J)
Vikash/-
AFR/NAFR A.F.R. CAV DATE 21.02.2017 Uploading Date 02.03.2017 Transmission 02.03.2017 Date
