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Nasruddin Mian @ Lalu @ Nasiruddin … vs The State Of Bihar on 21 June, 2021

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IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE No.1 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj

The State of Bihar
… … Petitioner
Versus
Nasruddin Mian @ Lalu @ Nasiruddin Ahmad Son of Late Maqsood Alam @
Wakil Ahmad Resident of Village- Haradiyan, P.S.- Thawe, District-
Gopalganj (Bihar.).
… … Respondent

with
CRIMINAL APPEAL (DB) No. 425 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj

Nasruddin Mian @ Lalu @ Nasiruddin Ahmad Son of Late Maqsood Alam @
Wakil Ahmad Resident of Village- Haradiyan, P.S.- Thawe, District-
Gopalganj (Bihar.).
… … Appellant
Versus
The State of Bihar
… … Respondent

with
CRIMINAL APPEAL (DB) No. 499 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj

Salamu Nesha @ Salamun Nesa Wife of Masiruddin Ahmad Resident of
Village – Hardiya, P.S.- Thawe, Distt – Gopalganj.
… … Appellant
Versus
The State of Bihar
… … Respondent
Appearance :
(In DEATH REFERENCE No. 1 of 2019)
For the Petitioner : Mr.
For the Respondent : Ms.Anukriti Jaipuriyar, Amicus Curiae
(In CRIMINAL APPEAL (DB) No. 425 of 2019)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr.Anuj Kumar, Advocate
For the Respondent : Dr.Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 499 of 2019)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr.Shafiur Rahman, Advocate
For the Respondent : Mr.Dilip Kumar Sinha, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
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CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date: – 21-06-2021

The appellants in these appeals challenge the common

judgment of conviction dated 26.03.2019 and order of sentence

dated 29.03.2019 passed by the learned Sessions Judge, Gopalganj

in Sessions Trial No. 122 of 2008. By the aforesaid judgment dated

26.03.2019, the appellants have been convicted for the offences

punishable under Sections 498-A, 304-B, 302 and 201/34 of the

Indian Penal Code (for short ‘IPC’). Consequent upon conviction,

vide aforesaid order dated 29.03.2019, the appellants have been

sentenced to undergo Rigorous Imprisonment (for short ‘R.I.’) for

seven years along with a fine of Rs.25,000/- each for the offence

punishable under Section 201/34 of the IPC and in default of

payment of fine to undergo further imprisonment for a period of six

months each and R.I. for three years along with a fine of

Rs.25,000/- each for the offence punishable under Section 498-A of

the IPC and in default of payment of fine to undergo further

imprisonment for a period of six months each. The appellant

Salamu Nesha @ Salamun Nesha (Cr.Appeal (DB) No. 499 of

2019) has been further sentenced to undergo R.I. for life along with

a fine of Rs.50,000/- for the offence punishable under Section 302

of the IPC and in default of payment of fine to undergo further
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imprisonment for a period of one year. The appellant Nasruddin

Mian @ Lalu @ Nasiruddin Ahmad (Cr.Appeal (DB) No. 425 of

2019) has further been sentenced to undergo death for the offence

punishable under Section 302 of the IPC with a fine of Rs.50,000/-.

It has been directed by the Trial Court that all the sentences shall

run concurrently. The Trial Court has held that since the appellants

have been convicted for the offence punishable under Section 302

of the IPC, no separate sentence is being prescribed for the offence

punishable under Section 304-B of the IPC.

2. After passing the impugned judgment and order, the

Trial Court made a reference under Section 366 of the Code of

Criminal Procedure (for short ‘Cr.P.C’) for confirmation of death

sentence awarded to the convict Nasruddin Mian @ Lalu @

Nasiruddin Ahmad, which has been registered as Death Reference

No.1 of 2019.

3. The respective appeals preferred by the appellants and

the reference made by the trial Court have been heard together and

are being disposed of by a common judgment.

4. The sessions trial in which the impugned judgment

and order were passed relates to the First information Report (for

short ‘FIR’) that had been registered at 12:30 PM on 21.03.2007 in

Manjhagarh (Thawe) Police Station under Section 154 of the Cr.P.C
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in respect of an incident that had occurred on 17.03.2007 at village

Haradiyan, P.S.- Thawe, District- Gopalganj situated at a distance of

9 kilometers from the police station.

5. The FIR was registered on the basis of duly signed

typed report of one Abdul Jabbar, father of the deceased Sanjeeda

Khatoon. In his report submitted to the S.H.O. of Thawe Police

Station, he has stated that his daughter Sanjeeda Khatoon, aged 23

years, was married to Nasruddin Mian @ Lalu @ Nasiruddin

Ahmad on 10.08.2003. Though he gave clothes and ornaments as

gift at the time of marriage as per his capacity, the accused persons

made a demand for motorcycle. However, on assurance of

providing motorcycle after some time, the bidagari of his daughter

was performed. He alleged that Nasruddin Ahmad along with his

Deyadin (sister-in-law) Salamu Nesha and his father Maqsood

Alam subjected the deceased to cruelty for a Hero Honda

Motorcycle as dowry. He states that in the evening of 20.03.2007,

he came to know that the aforesaid accused persons have killed his

daughter on 17.03.2007 by administering poison in her food

because of non-fulfillment of demand of motorcycle and buried her

body without informing him or his family members.

6. On receipt of the aforesaid report, the S.H.O., Thawe

Police Station Ashutosh Kumar forwarded it to the S.H.O. of
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Manjhagarh Police Station for instituting a case pursuant to which

Bipin Kumar Thakur, S.H.O. of Manjhagarh Police Station (not

examined) registered Manjhagarh (Thawe) P.S. Case No. 47 of

2007 on 21.03.2007 at 12:30 PM under Sections 304-B and 201/34

of the IPC against the appellants and father-in-law of the deceased,

namely, Maqsood Alam and handed over the investigation to

Ashutosh Kumar, S.H.O., Thawe.

7. It would be evident from the record that in the present

case the Investigating Officer (for short “I.O.”) submitted charge-

sheet no. 92 of 2007 dated 20.11.2007 only against the accused

Nasruddin under Sections 498-A, 306 and 201/34 of the IPC and

kept the investigation open against the other two accused persons.

8. Subsequently, on 30.11.2007, though the I.O.

submitted supplementary charge-sheet no.94 of 2007 against the

accused Salamu Nesha under Sections 498-A, 306 and 201/34 of

the IPC, the accused Maqsood Alam having been found innocent

during investigation was not sent up for trial.

9. Upon receipt of the police report, the learned Chief

Judicial Magistrate, Gopalganj took cognizance of the offences vide

order dated 15.01.2008 and, after complying with the provisions

prescribed under Section 207 of the Cr.P.C, he committed the case
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of the accused Nasruddin Ahmad and Salamu Nesha for trial to the

Court of Session.

10. It would further be evident from the record that after

commitment of the case, originally charge was framed against the

two sent up accused vide order dated 22.08.2008 under Sections

498-A, 306 and 201/34 of the IPC to which they pleaded not guilty.

Thereafter, the prosecution witnesses were examined between

24.10.2008 and 29.07.2016 and, vide order dated 01.09.2016, the

prosecution evidence was closed.

11. After closure of the prosecution evidence, statements

of the appellants were recorded under Section 313 of the Cr.P.C on

the same day, i.e. on 01.09.2016 in which they pleaded their

innocence and asserted that they have been falsely implicated in

this case.

12. Thereafter, the sole defence witness Sahjad Gulrej

(D.W.1) was examined, cross-examined and discharged on

11.01.2017. Vide order dated 24.01.2017, the defence evidence was

closed and the case was fixed for argument.

13. It was at this stage that the informant of the case filed

an application under Section 216 of the Cr.P.C on 09.03.2017 for

addition of charge under Sections 304-B and 302 of the IPC to the

original charge framed against the accused persons earlier on
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22.08.2008. A reply to the application filed under Section 216 of

the Cr.P.C was filed on behalf of the accused persons on

18.03.2017.

14. After hearing the parties on the application filed

under Section 216 of the Cr.P.C, the Trial Court passed its order on

08.05.2017 whereby it altered the charge to Sections 304-B, 302

and 201/34 of the IPC in place of original charge under Sections

498-A, 306 and 201/34 of the IPC and fixed the case on 23.05.2017

for explaining the altered charge to the accused persons.

15. Vide order dated 08.05.2017, the Trial Court held that

the accused persons would be at liberty to cross-examine the

witnesses after alteration of charge in terms of Section 217 of the

Cr.P.C.

16. The aforesaid order dated 08.05.2017 passed by the

Trial Court reads as under: –

“IN THE COURT OF ADDL. SESSIONS JUDGE V,
GOPALGANJ, BIHAR
Sessions Trial No.122 of 2008
ORDER

08-05-2017
Today case record is fixed for order on the petition
filed on behalf of the prosecution, dated 09.03.2017, u/s
216
Cr.P.C to alter the charge and its rejoinder of dated
18.03.2017.

Heard both parties and perused the record. On
perusal of record, it transpires that in the instant case,
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previously the charge was framed u/s 498(A)/306/201/34
of
I.P.C; against the accused persons who are facing trial
for the alleged offences. Further on perusal of the
petition, filed on behalf of the prosecution u/s 216
Cr.P.C,
it transpires that the death of victim was caused due to
administering poison in her meal at her bridle home by
accused persons, which is also evident from viscera
report, and it is also evident that prior to death, the victim
was subjected to cruelty for the demand of Hero Honda
motorcycle and due to non fulfillment of such dowry, she
was subjected to cruelty soon before her death and she
was died due to administering poison in her meal. Further
the ld. Lawyer for the prosecution has also given his
emphasis on Sec. 113 B of the Indian Evidence Act,
which deals with the presumption as to dowry death.

Contrary to this, the ld. Lawyer for the defense has
voluntarily denied the factum of dowry death of victim
caused by accused persons by administering poison in her
meal and also denied the factum of demand of dowry and
subjected to cruelty soon before her death.

Heard both the parties and perused the case record.
On perusal of the same, it transpires that the death of
victim was caused due to poisoning which is an admitted
fact; vide Ext. 2, i.e the P.M. report and Ext. 5, i.e the
viscera report. Further on bare perusal of F.I.R, it
transpires that the accused persons were demanding
motorcycle and due to that the victim was subjected to
cruelty and she was administering poison in her meal
soon before her death. Considering the fact and
circumstances of the case, in my considered view, the
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instant case comes under the purview of Sec. 304B read
with Sec. 302 and Sec. 201 of the
I.P.C and hence the
petition filed on behalf of the prosecution u/s 216
Cr.P.C
of dated 9.3.2017 is hereby allowed to alter the charges
u/s 304B/302/201/34
I.P.C in place of Sec.

498A/306/201/34 I.P.C.

Dated 23.05.2017 is fixed for charge. Accused
persons are directed to remain present physically on the
date fixed for framing of altered charges.

Further the accused persons will have liberty to
cross examine witnesses after alteration of charge u/s 217
Cr.P.C.

(dictated)
Addl. Sessions Judge V”

17. In view of the order dated 08.05.2017, the Trial Court

explained the altered charge under Sections 302, 304-B and 201/34

of the IPC to the accused persons to which they pleaded not guilty.

18. Further, on 23.05.2017, an application was filed on

behalf of the defence that since charge has been altered after

closure of the prosecution evidence, it is expedient that the

witnesses examined on behalf of the prosecution be recalled. The

said application of the defence was allowed vide order dated

23.05.2017 itself and the office was directed to issue summons to

all the prosecution witnesses.

19. Pursuant to the summons issued vide order dated

23.05.2017, the prosecution produced Md. Mustafa (P.W.1), Md.
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Habib (P.W.3), Abdul Jabbar (P.W.4) and Jamda Khatoon (P.W.5)

for further cross-examination.

20. After production of the aforesaid four witnesses on

recall, an application was filed on behalf of the prosecution to close

the prosecution evidence, which was allowed by the Trial Court

vide order dated 6/7.08.2017.

21. The record reveals that after closure of the

prosecution evidence pursuant to alteration of charge, the

statements of the accused persons were once again recorded under

Section 313 of the Cr.P.C on 21.08.2017 wherein they pleaded their

innocence.

22. However, the prosecution filed another application on

03.07.2018 stating therein that the statements of the accused

persons recorded under Section 313 of the Cr.P.C on 21.08.2017

are not as per the evidence led on behalf of the prosecution. Hence,

a request was made to record their statements once again under

Section 313 of the Cr.P.C for the purpose of enabling them to

explain the circumstances appearing in evidence against them.

23. The Trial Court, vide order dated 19.07.2018 allowed

the aforesaid application dated 03.07.2018 filed on behalf of the

prosecution and adjourned the case to 30.07.2018 for recording

fresh statements of the appellants under Section 313 of the Cr.P.C.
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24. It would further appear from the record that on

30.07.2018 the statements of the accused persons were recorded for

the fourth time in the trial under Section 313 of the Cr.P.C. The

appellants once again pleaded their innocence.

25. Having discussed the manner in which the trial

proceeded before the court below, let me look at the evidence

recorded during trial.

26. The prosecution examined, in all, 12 witnesses in

order to prove the charge against the accused persons. They are Md.

Mustafa (P.W.1), Md. Majummil Hussain (P.W.2), Md. Habib

(P.W.3), Abdul Jabbar (P.W.4), Jamda Khatoon (P.W.5), Saukat Ali

(P.W.6), Dr.Jamsedh Ahmad (P.W.7), Ashutosh Kumar (P.W.8), Md.

Ayub (P.W.9), Ramakant Giri (P.W.10) and Pawan Kumar Singh

(P.W.11). It would be pertinent to note here that the evidence of

Pawan Kumar Singh (P.W.11) was recorded on two different dates,

i.e. on 05.07.2013 and 29.07.2016 and while recording his evidence

on 29.07.2016, the Trial Court treated him as P.W.12.

27. The prosecution has also proved the following

documents during trial: –

(i) Signature of informant on typed report Exhibit-1
(ii) Post-mortem report Exhibit-2
(iii) Signature of I.O. on the forwarding Exhibit-3
note of the typed report the informant
(iv) Pagination on FIR by Bipin Kumar Exhibit-3/1

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Thakur, S.H.O. Manjhagarh

(v) Signature of the informant on the Exbihit-3/2
typed report

(vi) Signature of Bipin Kumar Thakur at Exhibit-4
the bottom of the formal FIR

(vii) Viscera Report Exhibit-5

(viii) Typed report Exhibit-6

(ix) Protest Petition Exhibit-7

(x) Signature of the I.O. on inquest report Exhibit-8

28. On behalf of the defence, one Sahjad Gulrej, nephew

of accused Salamu Nesha was examined during trial on 11.01.2017.

29. Md. Mustafa (P.W.1) states in his deposition that the

daughter of Abdul Jabbar, namely, Sanjeeda Khatoon was married

to Nasruddin five years ago. He states that the occurrence took

place about one and a half years ago. At that time, he was at

Purnea. He came to know through his co-villagers that Sanjeeda

was being subjected to cruelty in her sasural for demand of dowry.

Her husband and his relatives killed her by administering poison in

the food and buried her body. The family members of the deceased

complained to the police where after the police exhumed her body

and sent it for post-mortem examination.

30. In cross-examination, Md. Mustafa states that

whatever he has stated is based on information he received from

other people. He states that Sanjeeda was blessed with two children

out of the wedlock. She died three and a half years after her

marriage. He admits that he had never visited the sasural of
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Sanjeeda. He further admits that the financial condition of her

father is very weak. He also admits that prior to the marriage of

Sanjeeda, Nasruddin was already married. When his attention was

drawn to his statement made under Section 161 of the Cr.P.C

before the police, he admits that he had stated that Sanjeeda was

first taken to Gopalganj Sadar Hospital for treatment and when her

condition deteriorated, she was taken to Gorakhpur for better

treatment, but on way she died. He also admits that he had stated

before the police that after Sanjeeda died, her husband and in-laws

brought her body to Haradiyan from Gorakhpur and buried it in

Qabristan after Janaza prayer.

31. Md. Majummil Hussain (P.W.2) states in his

deposition that Sanjeeda was married to Nasruddin about five years

ago. She was not happy in her sasural. Her husband and in-laws

used to demand motorcycle. He came to know about her death

from others on 20.03.2007. He was told that her husband, father-in-

law and sister-in-law killed her by administering poison in the

food. Since the information of her death was received after three

days, he could not participate in her Janaza.

32. In cross-examination, he states that he is not aware as

to whether Sanjeeda was provided treatment at Gopalganj prior to

her death. He admits that he had never met Sanjeeda after she was
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married to Nasruddin. He also admits that Sanjeeda was having two

children, one daughter (six months old) and one son (two years

old). He admits that since the financial condition of the informant

was not good, he had married his daughter to the son of his khalera

brother (mausera bhai), who was already married from before. He

admits that Sanjeeda’s parents had not disclosed anything to him.

He states that he does not remember as to who told him about the

death of Sanjeeda.

33. Md. Habib (P.W.3) states in his deposition that he

came to know from others about the death of Sanjeeda. He states

that he was told that her death was caused by her husband, father-

in-law and sister-in-law by administering poison in her food.

34. In cross-examination, he states that Md. Sattar is his

samdhi. He admits that he was not present at the time of marriage

of Sanjeeda. He further admits that after the marriage of Sanjeeda,

he never met her. He states that father of Nasruddin, Md. Saddique

and Md. Jabbar are khalera brothers (mausera bhai). He admits

that he could not participate in the burial rituals of Sanjeeda. He

states that when the body of the deceased was exhumed, he was

present at the Qabristan.

35. In further cross-examination, after recall due to

alteration of charge, he states that he does not know the reason as
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to why Sanjeeda was killed by administering poison. He further

admits that he has no personal knowledge about poisoning the

victim to death and he came to know about it from his co-villagers.

He also admits that he had never seen the accused persons

subjecting her to cruelty.

36. Abdul Jabbar (P.W.4) states in his deposition that

he is the informant of the case. On 20.03.2007, he got information

that his daughter has been killed by administering poison. On such

information, he went to the sasural of his daughter along with his

brother Abdul Sattar (not examined). On reaching Haradiyan, he

came to know that his daughter was killed by Nasruddin, Maqsood

Alam and Salamu Nesha three days ago by administering poison

and her body was buried on the same day without informing him.

He further states that the husband and father-in-law of the deceased

always used to demand motorcycle. He states that his daughter was

married on 10.08.2003. He proved his signature on the typed report

submitted to the police, which was marked as Exhibit-1. He states

that the police had exhumed the body of his daughter from

Qabristan and sent it for post-mortem examination.

37. In cross-examination, he admits that the accused

persons are his old relatives. He states that his cousin (mamera

bhai) Ekramul Haque (not examined) was the mediator in the
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marriage. He admits that he knew that his son-in-law was already

married earlier. He admits that his daughter and son-in-law always

used to visit his house and he also used to visit their house quite

frequently. He admits that his wife and another daughter had also

visited the matrimonial home of Sanjeeda when mother of

Nasruddin had died. He admits that his son-in-law runs a

readymade garment shop at Gopalganj where he frequently used to

visit. He states that he came to know about the death of his

daughter from his cousin Ekramul Haque, whose house is situated

at a distance of 50 yards from the house of Nasruddin. He states

that when he reached Haradiyan, both the children of his deceased

daughter were playing with their grandfather on a cot. He denies

the defence suggestion that he had been informed about the death

of his daughter and he along with his wife and daughter had

participated in her burial rites. He was shown a photograph and

was asked to identify the persons present therein to which he

replied that he is unable to identify them. Immediately thereafter,

he says that the photograph does not contain picture of his wife and

daughter. He denies the defence suggestion that he has lodged the

case because the accused persons failed to pay him Rs.5,00,000/-

and transfer a piece of plot demanded by him after the death of his

daughter.

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38. On recall, after alteration of charge, in further cross-

examination, he states that he has four daughters and had

knowingly married one of his daughters to Nasruddin, who was

already married from before, as he had no money. He states that at

the time of marriage, he had promised to give motorcycle after

some time. He admits that he had visited the matrimonial home of

his daughter about ten days prior to her death. He further admits

that after the marriage of his daughter and before her death no

panchayati had taken place. He also admits that before the death of

the deceased he had not lodged any complaint to the police or

before the court. He denies the defence suggestion that after the

death of his daughter he along with other family members had gone

to Haradiyan and participated in her burial rites and three days

thereafter lodged the case in order to extract money from the

accused persons. He also denies the defence suggestion that the

demand of dowry was never made by the accused persons.

39. Jamda Khatoon (P.W.5) states in her deposition that

her daughter Sanjeeda Khatoon was married to Nasruddin on

10.08.2003. At the time of marriage, Nasruddin and his father had

demanded Hero Honda motorcycle. As the demand was not

fulfilled, after persuasion, bidagri of her daughter was performed

and she was taken to her sasural. In her sasural, she was being
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subjected to cruelty for demand of dowry. Later on, they killed her

daughter by administering poison in her food and even without

informing about her death, her body was buried. After few days of

her death when information was received, her husband and his

younger brother Abdul Sattar went to her sasural and brought her

both children, who now live at her home.

40. In cross-examination, she states that her daughter

frequently used to come to her maternal home from sasural, but

mostly she used to live in her sasural after marriage. She states that

Sanjeeda was in her maike when her first child was born. She states

that since her son-in-law was having extra marital relationship with

his sister-in-law Salamu Nesha, her daughter was not happy in her

sasural. In this regard, her daughter had told her earlier. She further

states that she came to know after three days of her death that she

consumed poison. She expressed her ignorance about any medical

treatment given to Sanjeeda before her death. She admits that

maike of her mother-in-law is in Haradiyan. She also admits that

the grandfather of Nasruddin is agnate of her mother-in-law. She

was shown a photograph, but she expressed her inability to identify

the pictures therein. She denies the defence suggestion that she had

information about death of her daughter and had participated in her
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burial rituals and deliberately refused to identify the persons in the

photo, which was taken on that occasion.

41. In her cross-examination, on recall, she states that

once she had visited the sasural of Sanjeeda after three months of

her marriage. She admits that Sanjeeda did not make any complain

to her at that time.

42. Saukat Ali (P.W.6) is an advocate clerk. He states

that the formal FIR was drawn in the writing of the then S.H.O.

Bipin Kumar Thakur. He identifies his writing and signature on the

formal FIR, which was marked as Exhibit- 3/1.

43. In cross-examination, he states that the formal FIR

was not drawn in his presence.

44. Dr.Jamsedh Ahmad (P.W.7) was posted at Sadar

Hospital, Gopalganj on 21.03.2007 as Civil Assistant Surgeon. He

held the post-mortem examination on the body of the deceased at

4:45 PM on 21.03.2007 and found that the whole body was

decomposed and foul smell was emanating from it. He proved the

post-mortem report, which has been marked as Exhibit-2. A perusal

of the post-mortem report would indicate that the opinion regarding

cause of death was reserved pending forensic examination of

viscera.

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45. Ashutosh Kumar (P.W.8) states in his deposition

that on 21.03.2007 he was posted as S.H.O. of Thawe Police

Station. On that day, he received a typed report containing

signature of Abdul Jabbar, which was forwarded by him to the

S.H.O. of Manjhagarh Police Station for institution of FIR. He

identified his writing on the typed report, which was marked as

Exhibit-3. He proved the pagination done on the FIR by the S.H.O.

Manjhagarh, Bipin Kumar Thakur and signature of the informant

on the typed report, which were marked as Exhibits- 3/1 and 3/2

respectively. He also proved the signature of the S.H.O.

Manjhagarh Police Station on the formal FIR, which was marked

as Exhibit-4. He states that he inspected the place of occurrence

and recorded the subsequent statement of the informant and

witnesses, namely, Md. Muzammil Hussain, Md. Mustafa, Jayda

Khatoon, Md. Habib and Alamgir Ahmad. He exhumed the body of

the deceased Sanjeeda at Haradiyan from Qabristan in presence of

the B.D.O. and witnesses and prepared the inquest report. He sent

the body of the deceased Sanjeeda for post-mortem examination to

the Sadar Hospital, Gopalganj. He sent the viscera to the Forensic

Science Laboratory, Muzaffarpur through Constable Jitendra

Tiwary (not examined) after obtaining orders from the court of the

Chief Judicial Magistrate, Gopalganj. He submitted the charge-
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sheet against Nasruddin and kept the investigation open against

other accused persons. Subsequently, he submitted the

supplementary charge-sheet against Salamu Nesha. He states that

since the allegation against the accused Maqsood Alam was not

found true, he was not sent up for trial.

46. In cross-examination, the I.O. admits that on

21.03.2007 when he took up investigation, he recorded the

statement of the witnesses at the place of occurrence itself, He

admits that the mother of the deceased in her statement made under

Section 161 of the Cr.P.C stated that Sanjeeda Khatoon was unwell

and she died on way while being taken to Gorakhpur for treatment.

47. The I.O. further admits that Alamgir Ahmad stated

before him that on 15.03.2007 all on a sudden Sanjeeda became

sick. She was taken for treatment to Gopalganj Sadar Hospital on a

Bolero vehicle and from there she was taken to Gorakhpur for

better treatment but, she died on way. He further admits that in his

statement made under Section 161 of the Cr.P.C, Md. Naushad

stated that the deceased died during treatment. He admits that Md.

Naushad also stated that during treatment and burial rituals family

member of the deceased were present.

48. The I.O. admits that he did not investigate the case on

the point of treatment provided to the deceased before her death, as
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disclosed to him by the witnesses. He admits that he did not

investigate on the point as to whether the parents and family

members of the deceased were present or not at the time of her

burial. He also admits that the place of occurrence is a joint house

of Moed Mian and Ishad Mian, but he did not record the statement

of the owners of the house. He admits that in the inquest report

there is no mention of any injury on the body of the deceased. He

denies the defence suggestion that he had conducted a faulty

investigation.

49. Md. Ayub (P.W.9) was posted as a technician in the

Forensic Science Laboratory, Muzaffarpur. He states that viscera of

the deceased was examined by Dr. U.K. Sinha. He also states that

he had assisted him in the examination. He proved signature of Dr.

U.K. Sinha on the viscera report, which was marked as Exhibit-5. A

perusal of Exhibit-5 would show that Aluminium Phosphide was

detected in the fluid, which is commercially known as Celphos and

is used as grain preservative and is highly poisonous.

50. In cross-examination, he admits that Dr. U.K. Sinha

had examined the viscera at his own level. He admits that he does

not know about the method of examination of viscera adopted by

him. He also admits that Dr. U.K. Sinha had not stated anything to

him regarding the method adopted for examination of viscera. He
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states that Aluminium Phosphide remains in the body till the body

is not composed.

51. Ramakant Giri (P.W.10), a private typist in the Civil

Court, Gopalganj states in his deposition that he had typed the

report as instructed by the informant Abdul Jabbar, which has been

marked as Exhibit-6.

52. In cross-examination, he admits that he has no

knowledge about the veracity of the contents of the typed report

submitted to the police by Abdul Jabbar.

53. Pawan Kumar Singh (P.W.11) was examined twice

in this case, firstly, on 05.07.2013 and, secondly, on 29.07.2016,

when he was treated by the Trial Court as P.W.12. He is an

advocate clerk, who has proved the protest petition filed by the

informant, which has been marked as Exhibit-7 and the inquest

report, which has been marked as Exhibit-8.

54. In cross-examination, he admits that the inquest

report was not prepared before him and he has no knowledge of the

case.

55. After examination of the aforesaid witnesses, the

prosecution evidence was closed and the statements of the accused

persons were recorded under Section 313 of the Cr.P.C in the

manner indicated above. Thereafter, the defence examined its sole
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witness Sahjad Gulrej, resident of village Saudali, P.S. Barauti,

District Gopalganj on 11.01.2017.

56. Sahjad Gulrej (D.W.1) states in his deposition that

Salamu Nesha is his aunt (bua). On 17.03.2017, he was at his

house. After receiving information, he took his bua on motorcycle

to Sadar Hospital, Gopalganj. At Gopalganj Sadar Hospital, his

uncle (fufa) Sk. Masruddin, his younger brother Nasruddin, father-

in-law of Nasruddin and his family members were present from

before. The wife of Nasruddin, who was ailing, was being provided

treatment in the hospital. Subsequently, she was referred to

Gorakhpur from Gopalganj Sadar Hospital for better treatment. He

states that he himself, Nasruddin and Nasruddin’s father-in-law

took Sanjeeda to Gorakhpur in a vehicle, but on way she died.

Thereafter, her body was brought to Haradiyan and in presence of

the family members and relatives, burial rituals were performed.

He states that the photograph of the deceased was taken at the time

of burial rituals in which the mother and sister of the deceased can

be seen. He states that till that time, there was no grievance and

with their consent rituals were performed, but after 3-4 days of the

burial of the deceased, the FIR was instituted. He produced the

photograph and its negative, which were marked as Exhibits-B and

B/1 respectively with objection. He proved the signature of his fufa
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on the typed application submitted by him to the Superintendent of

Police, Gopalganj regarding the actual facts of the case, which was

marked as Exhibit-A. He also proved the hospital registration

receipt of the deceased Sanjeeda issued by the Gopalganj Sadar

Hospital, which was marked as Exhibit-C.

57. In cross-examination, he states that when he reached

the hospital, Sanjeeda was in her senses. She was being

administered fluid. At about 5:00 PM, Sanjeeda was referred from

Gopalganj Sadar Hospital to Gorakhpur. They proceeded to

Gorakhpur for better treatment in a vehicle. He could not disclose

the name of the doctor, who treated Sanjeeda or the name of the

owner of the vehicle in which Sanjeeda was being taken from

Gopalganj to Gorakhpur. He admits that the photograph and

negative are undated and unsigned. He states that the photograph

was taken on 18.03.2007 at 4:00 PM. He states that in the

photograph on the right and left side of the body of the deceased

her mother and sister respectively can be seen. He denies the

suggestion made by the prosecution that the photograph presented

by him in the court was a result of technological trick. He denies

the suggestion that in the Gopalganj Sadar Hospital, mother and

father of the deceased were not present. He also denies the
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prosecution suggestion that Sanjeeda did not die due to illness and

her death was caused due to poisoning.

58. After the defence evidence was closed and the

arguments made on behalf of the parties were heard, the Trial Court

vide impugned judgment and order convicted and sentenced the

accused persons in the manner noted above.

59. Assailing the impugned judgment of conviction and

order of sentence, Mr. Ajay Kumar Thakur, learned counsel

appearing for the appellants submitted that in the report submitted

by the informant no date, month or year of the alleged demand of

Hero Honda Motorcycle has been given. He submitted that the

informant has also not stated any date, month or year of the alleged

cruelty by the accused persons in his report. He contended that

there is no allegation that soon before her death or within a

reasonable proximity of death either there was any demand from

the deceased for dowry or she was subjected to any kind of cruelty

for non-fulfillment of such demand.

60. Referring to the deposition of the witnesses, he

submitted that P.Ws. 1, 2 and 3 are hearsay witnesses. Their

evidence is completely vague. Similarly, P.W.4, the father of the

victim has also not stated a word in his evidence about torture to

the deceased by any of the accused. He has not stated that his
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daughter ever told him when he visited her sasural or when she

visited naihar about alleged demand of dowry.

61. Mr. Thakur further contended that P.W.5 has made

vague allegation of demand and torture in her examination-in-chief.

However, she did not state that soon before death the victim was

subjected to cruelty for non-fulfillment of demand of dowry. He

contended that P.W.5 has introduced a new story in her evidence

that her son-in-law had illicit relationship with his sister-in-law

Salamu Nesha. He contended that none of the prosecution

witnesses is eye-witness to the alleged demand of motorcycle made

from the deceased. He argued that the falsity of the prosecution

case would be evident from the deposition of P.W.1, who had stated

before the police that when the deceased became critically ill on

20.3.2007 she was taken to Sadar Hospital Gopalganj where she

was treated and from there she was taken to Gorakhpur for better

treatment and she died on way and her body was buried as per

Muslim custom and rituals.

62. Referring to the deposition of the I.O. (P.W.8), Mr.

Thakur submitted that in his deposition the I.O. has admitted that

the mother of the deceased had stated in her statement that the

deceased was ill and she died while being taken to Gorakhpur for

treatment. He also admitted that he had recorded the statement of
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Alamgir Ahmad and Naushad, who had stated that the victim died

due to ailment during treatment.

63. He further contended that the I.O. has admitted in his

deposition that the house in which the appellants and the deceased

were living together was a joint house of two families, but he has

not recorded the statement of other persons residing in the said

house.

64. He contended that the evidence of other witnesses

would not be admissible as far as the altered charges are concerned

simply because they were not produced by the prosecution for

further cross-examination after alteration of charge. He submitted

that the Trial Court has failed to appreciate the evidence on record

in correct perspective and has reached to an erroneous conclusion

while convicting and sentencing the accused persons.

65. He submitted that in the present case, the prosecution

has failed to establish that the death of the deceased was homicidal.

According to him, if the evidence of the witnesses examined on

behalf of the prosecution is considered, it would reveal that the

evidence is inconsistent with the theory of homicidal death.

66. He contended that in case of circumstantial evidence,

motive plays a crucial role and the prosecution has truly failed to

prove the case as to motive.

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67. Lastly, Mr. Thakur submitted that when two views

are possible on the evidence adduced in the case, one pointing to

the guilt of the accused and the other to his innocence, the benefit

of doubt should be given to the accused.

68. Ms. Anukriti Jaipuriyar, learned advocate appointed

as amicus curiae in Death Reference No.1 of 2019 submitted that

P.Ws. 1 to 3 are hearsay witnesses, P.Ws. 4 and 5 are parents of the

deceased, P.Ws.6, 10 to 12 are formal witnesses, P.W.7 is the

medical officer, who conducted post-mortem examination and

reserved his opinion subject to viscera report, P.W.8 investigated

the case and P.W.9 is a technician, who has proved the expert report

submitted by Dr. U.K. Sinha. She contended that Ekramul Haque,

who informed the Informant about the death of the deceased, was

not examined. Similarly, Alamgir Ahmad and Naushad, whose

statements were recorded by the I.O. during investigation and, who

stated that the deceased died during treatment of her ailment, which

supports the case of the defence have not been examined during

trial. She contended that there is no evidence on record to show that

the deceased was subjected to cruelty for non-fulfillment of

demand of dowry or there was any illicit relationship between

appellants Nasruddin Mian @ Lalu @ Nasiruddin Ahmad and

Salamu Nesha. She contended that the evidence on record would
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suggest that the deceased and her husband were happily married

since 10.08.2003 having two children – one daughter and one son.

The evidence would further suggest that they had cordial

relationship.

69. Learned amicus curiae submitted that the evidence of

the I.O. is very important in the case as he has admitted that the

deceased’s mother told him that the deceased died on way while

she was being taken for treatment to Gorakhpur. She contended that

there is complete lack of legal evidence on the basis of which the

Trial Court could have recorded the finding of guilt against the

appellants.

70. Learned amicus curiae submitted that while passing

the impugned judgment, the Trial Court has completely ignored the

evidence adduced by the sole defence witness. His evidence

regarding treatment provided to the deceased at Sadar Hospital,

Gopalganj has not been challenged by the prosecution. The

registration receipt issued by the hospital in the name of the

deceased clearly shows that her husband and his relatives tried their

best to save her life. She contended that the deposition of D.W.1, if

read together with the deposition of the prosecution witnesses,

would clearly suggest that the accused persons had neither caused
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homicidal death of the deceased nor had abated her to commit

suicide.

71. On the other hand, Mr. Dilip Kumar Sinha, learned

Additional Public Prosecutor appearing for the State submitted that

the prosecution has led cogent evidence in support of its case and

the Trial Court has correctly appreciated the facts and the law

involved in the case. He contended that the witnesses examined

during trial are truthful. The parents of the deceased (P.Ws.4 and 5)

have clearly stated in their evidence that their daughter Sanjeeda

Khatoon was married to Nasruddin Mian @ Lalu @ Nasiruddin

Ahmad on 10.08.2003 and at the time of bidagari, her husband and

father-in-law demanded a motorcycle. He contended that P.W.5 has

specifically stated in her evidence that her daughter had made

complaint that she was being subjected to cruelty due to non-

fulfillment of demand of motorcycle. He contended that there is no

illegality in the alteration of charge and all the relevant witnesses

were recalled by the court for further cross-examination after the

charge was altered. According to him, no prejudice has been caused

to the defence due to non-production of some of the witnesses after

the original charge was substituted by new charge under Sections

304-B and 302 of the IPC. He further contended that the Trial

Court has taken compassionate view against accused Salamu Nesha
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in a gruesome case of murder in which she was actively involved

and has awarded her minimum sentence, i.e. life imprisonment. He

further contended that the accused Nasruddin Mian @ Lalu @

Nasiruddin Ahmad being husband of the deceased has rightly been

awarded death sentence in view of the materials on record.

72. Mr. Sinha, learned Additional Public Prosecutor

further submitted that there is no doubt that the appellant

Nasruddin being the husband of the deceased and the appellant

Salamu Nesha being sister-in-law of the deceased were staying

under the same roof and the viscera report suggests that the

deceased died due to poisoning. He submitted that Section 106 of

the Evidence Act would directly operate against them. He

contended that since the appellants were the persons living together

with the deceased, they had the special knowledge under what

circumstance she died and it was for them to explain as to how

Aluminium Phosphide was detected in the viscera of the deceased

sent for chemical examination.

73. I have given my anxious consideration to the rival

submissions and have carefully perused the evidence on record.

74. Before we enter on a consideration of the

submissions made by the learned counsel for the parties and the

learned amicus curiae, it is apposite to refer to the reasons, which
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weighed with the Trial Court to convict the appellants. They read

as under :-

“42. Under the facts and circumstances and on
giving emphasis on the entire scenario of the case
from beginning to end is completely gone against the
accused persons and it falsified the defence of the
accused persons and no innocence attracted on the
part of the accused persons rather a serious
conspiracy and determination and mala fide
intention is clearly established against both the
accused leading to commit brutal murder of Indian
legal wedded wife due to non-fulfillment of desire
like asking a motorcycle in dowry demand. It also
gives a clear cut impact against the accused persons
that they are so cruel or ‘बहसस दररिन्ददा’ that he could not
spare own beloved wife, who has promised with her
while ‘Nikah’ was commenced that he will maintain
his legal wedded wife properly and look-after her
carefully without any complain and torture. He has
promised to lead happy conjugal life and an Indian
girl left her parental home keeping lot of believe and

faith upon a stranger to create ‘अपनदा ससुनहरिदा ससंसदारि’ and

enter into the matrimonial tie under the
commencement of ritual of ‘Nikah’ in presence of

‘अलदाहतदालदा’ in the name of Prophet Mohammad and
both made promise to save their life each-other, but
in this case, the accused-husband forgotten the
promise whatever promised while ‘Nikah’ took place
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and he started committing torture to her beloved
wife. Not only this, the Deyadin, who ought to have
to save life of a lady, who has come leaving her
parental home at the instance of the fact that another
lady residing at her in-laws’ house will save her
being a lady, but what happened her a lady being
Deyadin residing at her in-laws’ house, she failed to
protect her, she involved actively with the accused-
husband of the deceased and made up a conspiracy
and made a mental set-up to kill her and both of the
accused made up a plan to kill her and as such, the
deceased was killed by administering poison in daily
meal. Thereafter, the circumstances itself reflects that
both the accused are not at all innocent rather, the
attitude and behavior which is very remarkable
human being goes completely against a person and
the overt-act and attitude committed against legal
wedded wife itself established and proved the
commission of crime of committing brutal murder of
Indian legal wedded wife by administering poison
due to non-fulfillment of dowry-demand and the
entire episode flashes light over the ‘बहससपन एवसं दररिसंदगस’
of both the accused and they could not spare an
Indian legal wedded wife only because the father of
the deceased was not capable to fulfill the desire of
the accused and at the same time, ‘यय कहदा जदानदा अततशययोतक

नहह हयोगदा तक अतभियसुक इतनय बहसस-दररिसंददा हह तक एक ब्यदाहतदा-सस कय हहँसतय-

खयलतय जसवन कयो एक मयोटरिसदाइकल सय भिस कम आहँ कदा औरि अपनस चदाहत पपूरिस कय

ललए उसकक जसवनलसलदा हस समदाप करि दस। ऐसय बहसस-दररिसंददा परि तकसस तरिह कक
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सहदानसुभिपूतत तदखदानदा, खसुद कयो ईश्वरि कय बसंदय न समझनदा हयोगदा।’ The act and
overt-act committed by the husband-accused and
Deyadin-accused, who has given strength clear-cut
towards commission of murder of a innocent Indian
legal wedded wife due to non-fulfillment of demand
of dowry even for a motorcycle, goes against pious
and God-fearing persons. Hence, both the accused
completely and seriously failed to establish their
innocence and accordingly, they are found clear-cut
guilty for commission of committing murder of the
deceased due to non-fulfillment of dowry-demand.

43. Having considered the facts and
circumstances of the case as well as discussion made
above, the case U/S 306
I.P.C. is not at all attracted
and established from any corner rather a clear cut
case of dowry-death U/Ss. 498A, 304B, 201
I.P.C. is
made out beyond the shadow of all reasonable
doubts.

44. It is pertinent to note that earlier the charge
was framed U/S 498A, 306, 201/34
I.P.C. Later on,
after completion of trial, this fact came into the
notice of the court that the deceased legal wedded
wife was committed murder due to administering
poison in her meal and on the basis of protest
petition and another petition, the prosecution made
approach to court to amend the charge by way of
addition and further, the charge was framed against
both of the accused U/S 498A, 304B, 302, 201/34
I.P.C. vide order sheet dated 23.05.2017. The
prosecution has further approached the court,
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enlightening the fact that the deceased was not died
to her natural death then the court, to dispense with
justice, not the alive father rather extend justice to
the deceased and particularly ordered to dig the
grave of deceased and extract the corpse and
accordingly, the corpse of deceased was extracted
and postmortem was done and it was found from
P.M. Report and Viscera-report (Exhibit-2 and
Exhibit-5) as such the death was caused due to
poison. Ultimately, the real truth itself came out that
the deceased was committed murder by
administering poison in her meal. Inquest-report
(Exhibit-8), P.M. Report (Exhibit-2) and Viscera-
report (Exhibit-5) are available on record which are
well proved by oral witness adduced on behalf of
prosecution.

45. Under the facts and circumstances as well
as giving emphasis on the relevant documents
brought on the record on behalf of prosecution like,
Inquest-report, examination of Viscera of FSL and
other material as discussed above, earlier the
document filed and marked on behalf of defence do
not give any impact over the same as the same is not
at all relevant to disbelieve the case of the
prosecution. Since the case is very serious and come
under the purview of ‘rarest of rare’ as it came to
notice to the court of justice that the inference is very
well drawn towards pathetic story of the deceased on
being derived the conclusion as discussed above.
Hence, it is crystal clear that the case in hand is
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related to corpse of the deceased Sanjeeda Khatoon
“cried under the graveyard to seek dispense of
justice from the court of justice.”

46. Having considered the facts and
circumstances as well as giving anxious

consideration and on careful microscopic studies of
the oral evidence and the material available on
record and considering the argument of the ld.
counsel for the defence and prosecution, I find much
force in the submission of the prosecution towards
establishing the allegation leveled against both the
accused leading to committing murder of deceased
due to non-fulfillment of demand of dowry and with a
view to save their skin to screen the evidence,
deceased was hurriedly and hastily buried without
giving acknowledgement to any one and even the
parents of the deceased were completely deprived to
see the face of their beloved daughter.

47. Hence, the prosecution has completely
proved the charges U/Ss. 498A/304B/302/201/34 of
the
I.P.C. against the accused no.1 Nasruddin Mian
@ Lallu and accused no.2 Salamu Nesha beyond the
shadow of all reasonable doubts. Accordingly, the
bail bonds of both the accused is being cancelled and
both of them are taken into judicial custody to be
appeared on 29-03-2019 for hearing on the point of
sentence.”

75. Be it noted that while writing a judgment, a Judge is

required to keep certain basic rules in mind. The supreme require-
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ment of a judgment is reason, which is the rational to the conclu-

sion. Reasoning is the mental process through which a Judge

reaches to his conclusion. All conclusions should be supported by

reasons duly recorded. The finding of fact should be based on legal

testimony and should be based on legal grounds. Neither the finding

of fact nor the decision should be based upon wild suspicion, hypo-

thetical presumption, surmises and conjectures. Further, while com-

menting on the conduct of the parties, a Judge is required to be

careful to use sober and restrained language. He should avoid use of

disparaging and derogatory remarks against any person whose case

may be under consideration before him.

76. A Court while writing judgment has a onerous task of

being dispassionate in assessing the evidence. Indulging in trial and

error in arriving at a decision making tends to cloud the cognitive

space with the attendant cognitive biases. The clouded mind then

tends to fit in the causal chain to the prototypes based on biologi-

cally and socially evolved capacities; social pressures, individual

motivations and emotions. In making decision a judge is required to

avoid the intuitive/reflexive outcome based on the causal chain of

events available and focus on deliberative aspect of decision mak-

ing otherwise the judge would tend to draw illusory correlation be-

tween the chain of events and the reflexive outcome. The decision
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making requires a certain level of motivation and cognitive capacity

of a judge. A well trained mind of a judge along with self realization

of the available biases occupying his cognitive space would help a

judge avoid the pit falls of heuristic and avoid distorted thinking

leading to a more balanced and rational outcome.

77. In Rathinam vs. State of T.N., since reported in

(2011) 11 SCC 140, the Supreme Court has highlighted the impor-

tance of dispassionate assessment of the evidence and a greater cau-

tion on the Court which must resist the tendency to look beyond the

fact in the following paragraphs:-

“23. We must, however, understand that a particu-
larly foul crime imposes a greater caution on the
court which must resist the tendency to look beyond
the file, and the insinuation that the rich are always
the aggressors and the poor always the victims, is
too broad and conjectural a supposition. It has been
emphasised repeatedly by this Court that a dispas-
sionate assessment of the evidence must be made and
that the Court must not be swayed by the horror of
the crime or the character of the accused and that
the judgment must not be clouded by the facts of the
case.
In Kashmira Singh v. State of M.P. [AIR 1952
SC 159 : 1952 Cri LJ 839] it was observed as under:

(AIR p. 160, para 2)
“2. The murder was a particularly cruel
and revolting one and for that reason it
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will be necessary to examine the evidence
with more than ordinary care lest the
shocking nature of the crime induce an in-

stinctive reaction against a dispassionate
judicial scrutiny of the facts and law.”

24. Likewise in Ashish Batham v. State of M.P.
[(2002) 7 SCC 317 : 2002 SCC (Cri) 1718] it was
observed thus: (SCC p. 327, para 8)
“8. Realities or truth apart, the funda-

mental and basic presumption in the ad-

ministration of criminal law and justice
delivery system is the innocence of the al-

leged accused and till the charges are
proved beyond reasonable doubt on the
basis of clear, cogent, credible or unim-

peachable evidence, the question of in-

dicting or punishing an accused does not
arise, merely carried away by the heinous
nature of the crime or the gruesome man-

ner in which it was found to have been
committed. Mere suspicion, however
strong or probable it may be is no effec-

tive substitute for the legal proof required
to substantiate the charge of commission
of a crime and graver the charge is,
greater should be the standard of proof
required. Courts dealing with criminal
cases at least should constantly remember
that there is a long mental distance be-

tween ‘may be true’ and ‘must be true’
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and this basic and golden rule only helps
to maintain the vital distinction between
‘conjectures’ and ‘sure conclusions’ to be
arrived at on the touchstone of a dispas-

sionate judicial scrutiny based upon a
complete and comprehensive appreciation
of all features of the case as well as qual-

ity and credibility of the evidence brought
on record.”

78. The judgment under consideration is an example of

how not to write a judgment. It has repeatedly been emphasized by

the Supreme Court that the Courts and Judges must make a dispas-

sionate assessment of evidence and that the Courts and Judges

should not be swayed by the horror of crime and the character of the

person. The judgment should be made by a Judge uninfluenced by

his own imagined norms of the functioning of the society.

79. The Trial Court ought to have avoided the sweeping

and disparaging remarks made in para 42 of its judgment regarding

the conduct of the appellants.

80. I fail to see as to how the Trial Court held in para 44

of its judgment that the charge was framed against the appellants

under Section 498-A of the IPC after the informant filed an

application for addition to the original charge. The order dated

08.05.2017 passed by the Trial Court, which has been extracted
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hereinabove, would clearly show that the original charge under

Sections 498-A, 306 and 201/34 of the IPC was altered to Sections

304-B, 302 and 201/34 of the IPC. The trial court did not allow the

prayer of the informant regarding addition of Sections 304-B and

302 of the IPC to the original charge already framed against them

meaning thereby that due to alteration of the original charge vide

order dated 08.05.2017, the charge under Sections 498-A and 306

became non-existent.

81. As a matter of fact, for all practical purposes, after

alteration of the charge, the appellants were being tried only for the

offences punishable under Sections 304-B, 302 and 201/34 of the

IPC.

82. Surprisingly, in para 43 of the judgment, the Trial

Court held that the case under Section 306 of the IPC is not made

out. After alteration of charge, since there was no charge under

Section 306 of the IPC, there was no occasion for the Trial Court to

have recorded such finding in respect of Section 306 of the IPC.

83. Evidently, while passing the impugned judgment, the

Trial Court had misconceived that the appellants were also being

tried for the original charge framed under Sections 498-A and 306

of the IPC.

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84. While saying so, I am mindful of the judgment of the

Supreme Court in Shanti Vs. State of Haryana, since reported in

(1991) 1 SCC 371, wherein it has been held that Sections 304-B

and 498-A of the IPC are not mutually exclusive. They deal with

two distinct offences. A person charged and acquitted under Section

304-B of the IPC can be convicted under Section 498-A of the IPC

without charge being framed, if such a case is made out. But from

the point of view of practice and procedure and to avoid technical

defects, it is necessary in such cases to frame charges under both

the sections and if the case is established against the accused, they

can be convicted under both the Sections but no separate sentence

need be awarded under Section 498-A in view of the substantive

sentence being awarded for the major offence under Section 304-B.

85. However, in the present case, the Trial Court has not

only convicted and sentenced the appellants for the offence

punishable under Section 498-A of the IPC under which effectively

they were not charged, but also convicted and sentenced them for

the offence punishable under Section 304-B of the IPC.

86. Now coming to the issue of recall of witnesses after

alteration of charge, it is necessary to refer to Sections 216 and 217

of the Cr.P.C :-

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“216. Court may alter charge.–(1) Any Court may
alter or add to any charge at any time before judgment
is pronounced.

(2) Every such alteration or addition shall be read
and explained to the accused.

(3) If the alteration or addition to a charge is such
that proceeding immediately with the trial is not likely,
in the opinion of the Court, to prejudice the accused in
his defence or the prosecutor in the conduct of the case,
the Court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.

(4) If the alteration or addition is such that pro-
ceeding immediately with the trial is likely, in the opin-
ion of the Court, to prejudice the accused or the prose-
cutor as aforesaid, the Court may either direct a new
trial or adjourn the trial for such period as may be nec-
essary.

(5) If the offence stated in the altered or added
charge is one for the prosecution of which previous
sanction is necessary, the case shall not be proceeded
with until such sanction is obtained, unless sanction
has been already obtained for a prosecution on the
same facts as those on which the altered or added
charge is founded.

217. Recall of witnesses when charge altered.–
Whenever a charge is altered or added to by the Court
after the commencement of the trial, the prosecutor and
the accused shall be allowed–

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(a) to recall or re-summon, and examine with refer-

ence to such alteration or addition, any witness
who may have been examined, unless the Court,
for reasons to be recorded in writing, considers
that the prosecutor or the accused, as the case
may be, desires to recall or re-examine such wit-
ness for the purpose of vexation or delay or for
defeating the ends of justice;

(b) also to call any further witness whom the Court
may think to be material.”

87. Sub-section (3) of Section 216 of the Cr.P.C provides

that if the alteration or addition to a charge does not cause preju-

dice to the accused in his defence or the prosecutor in the conduct

of the case, the Court may proceed with the trial as if the additional

or altered charge is the original charge. Sub-section (4) thereof

contemplates a suggestion where alteration or addition of charge

will prejudice the accused and empowers the Court to either direct

a new trial or adjourn the trial for such period as may be necessary

to delay the prejudice likely to be caused to the accused. It is the

duty on the part of the Court to see that no prejudice is caused to

the accused and he is allowed to have a fair trial.

88. Section 217 of the Cr.P.C deals with recall of wit-

nesses in case of alteration of charge. It allows the prosecutor and

the accused to recall, re-summon and examine any witness who
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may have been examined with reference to alteration or addition of

charge. The court is, however, required to ensure that calling of

witnesses is only for meeting the ends of justice and not to vitiate

the purpose of trial or delay the proceeding.

89. The provisions prescribed under Sections 216 and

217 of the Cr.P.C require the court to ensure that no prejudice is

caused to the accused in the event of addition or alteration of

charge and he is provided with a fair trial.

90. In CBI v. Karimullah Osan Khan, since reported in

(2014) 11 SCC 538, the Supreme Court dealt with a case where an

application was filed under Section 216 of the Cr.P.C during the

course of trial for addition of charge against the appellant under

various provisions of the IPC, Explosive Substances Act and the

Terrorists and Disruptive Activities (Prevention) Act, 1987. The

Supreme Court held as under: –

“17. Section 216 CrPC gives considerable power to
the trial court, that is, even after the completion of
evidence, arguments heard and the judgment
reserved, it can alter and add to any charge, subject
to the conditions mentioned therein. The expressions
“at any time” and before the “judgment is
pronounced” would indicate that the power is very
wide and can be exercised, in appropriate cases, in
the interest of justice, but at the same time, the courts
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should also see that its orders would not cause any
prejudice to the accused.”

91. In R. Rachaiah Vs. Home Secy., Bangalore, since

reported in (2016) 12 SCC 172, in which charge sheet was filed by

the police after investigation under Sections 306 and 365 read with

Section 34 of the IPC against the accused persons, the trial

proceeded on the basis of the charge. In all, 27 witnesses were

examined on behalf of the prosecution. When P.W.26 was

examined, an application was filed by the prosecution under

Section 216 of the Cr.P.C for framing of additional charge under

Section 302 of the IPC. The objections raised by the accused

persons were rejected and the Trial Court framed alternative charge

under Section 302 of the IPC read with Section 34 of the IPC. The

Trial Court convicted the accused persons under Section 302 read

with Section 34 of the IPC and also under Section 364 read with 34

of the IPC meaning thereby that the appellants were not convicted

of the original charge framed either under Section 306 or Section

365 of the IPC. They were convicted in respect of alternative

charge under Section 302 of the IPC. Further, the other offence for

which they were charged was under Section 365 of the IPC, but the

conviction was recorded under Section 364 IPC on the ground that

even when the charge framed was under Section 365 of the IPC,
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the evidence produced by the prosecution shows existence of all

ingredients of Section 364 of the IPC. The appellants filed appeal

before the High Court against the said conviction taking a plea to

the effect that there could not have been any conviction under

Section 302 of the IPC. It was also pleaded that the alternative

charge under Section 302 of the IPC was wrongly framed without

following the procedure under Sections 216 and 217 of the Cr.P.C.

Therefore, the entire trial under Section 302 of the IPC stood

vitiated. It was also argued that there could not have been any

conviction under Section 302 of the IPC in absence of any specific

charge under this Section. The High Court dismissed the appeal.

92. The accused persons moved before the Supreme

Court. The Supreme Court while referring to Sections 216 and 217

of the Cr.P.C held as under: –

“10. The bare reading of Section 216 reveals that
though it is permissible for any court to alter or add to
any charge at any time before judgment is pronounced,
certain safeguards, looking into the interest of the
accused person who is charged with the additional
charge or with the alteration of the additional charge,
are also provided specifically under sub-sections (3)
and (4) of
Section 216 of the Code. Sub-section (3), in
no uncertain term, stipulates that with the alteration
or addition to a charge if any prejudice is going to be
caused to the accused in his defence or the prosecutor
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in the conduct of the case, the Court has to proceed
with the trial as if it altered or added the original
charge by terming the additional or alternative
charge as original charge. The clear message is that it
is to be treated as charge made for the first time and
trial has to proceed from that stage. This position
becomes further clear from the bare reading of sub-
section (4) of
Section 216 of the Code which empowers
the Court, in such a situation, to either direct a new
trial or adjourn the trial for such period as may be
necessary. A new trial is insisted if the charge is
altogether different and distinct.

11. Even if the charge may be of same species, the
provision for adjourning the trial is made to give
sufficient opportunity to the accused to prepare and
defend himself. It is, in the same process,
Section 217
of the Code provides that whenever a charge is altered
or added by the court after the commencement of the
trial, the prosecutor as well as the accused shall be
allowed to recall or re summon or examine any
witnesses who have already been examined with
reference to such alteration or addition. In such
circumstances, the court is to even allow any further
witness which the court thinks to be material in regard
to the altered or additional charge.

12. When we apply the aforesaid principles to the facts
of this case, the outcome becomes obvious….”

(emphasis mine)
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93. In R. Rachaiah (Supra), the Supreme Court further

held as under: –

“14. In a case like this, with the framing of
alternative charge on 30-9-2006, testimony of those
witnesses recorded prior to that date could even be
taken into consideration. It hardly needs to be
demonstrated that the provisions of
Sections 216 and
217 are mandatory in nature as they not only sub
serve the requirement of principles of natural justice
but guarantee an important right which is given to the
accused persons to defend themselves appropriately
by giving them full opportunity. Cross-examination of
the witnesses, in the process, is an important facet of
this right. Credibility of any witness can be
established only after the said witness is put to cross-
examination by the accused person.

15. In the instant case, there is no cross-examination
of these witnesses insofar as charge under
Section
302 IPC is concerned. The trial, therefore, stands
vitiated and there could not have been any conviction
under
Section 302 IPC.

16. Though, in the given case, it would be doubtful as
to whether the appellants can now be convicted under
Section 306 IPC as we, prima facie, find that the
charge under
Section 302 was in substitution of the
earlier charge under
Section 306 as both the charges
cannot stand together. (
See Sangaraboina
Sreenu v. State of A.P. [Sangaraboina Sreenu v. State
of A.P., (1997) 5 SCC)”

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94. In the instant case, though the original charge under

Sections 498-A and 306 of the IPC was substituted by much graver

offences under Sections 302 and 304-B of the IPC, the prosecution

produced only P.Ws. 1, 3, 4 and 5 before the court for further

cross-examination in spite of the fact that a prayer was made on

behalf of the appellants before the Trial Court to recall all the

witnesses examined earlier after the alteration of charge and the

same was allowed. Surprisingly, after examining the aforesaid four

witnesses, the prosecution filed a petition that it did not want to

recall other witnesses and the Trial Court closed the prosecution

evidence.

95. Now, the question would arise as to whether

withholdment of P.W.2 and P.Ws.6 to 12 after the charge was

altered has caused any prejudice to the appellants.

96. In the facts and circumstances of the case, the

mandate of the provisions prescribed under Sections 216 and 217

of the Cr.P.C and the law laid down by the Supreme Court in CBI

v. Karimullah Osan Khan (Supra) and R. Rachaiah (Supra), I

have no hesitation in concluding that since the altered charge was

for graver offences under Sections 302 and 304-B of the IPC, the

withholdment of the aforesaid witnesses from further cross-

examination has certainly caused prejudice to the accused persons.
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They have been deprived from cross-examining those witnesses in

respect of the substituted charge. I am also of the opinion that their

deposition cannot form basis for arriving at the conclusion of guilt

for the offences punishable under Sections 304-B and 302 of the

IPC.

97. Leaving apart the aforesaid legal position, this Court

would like to appreciate the entire material including the

prosecution evidence, as has been brought on record to see as to

whether the charge brought against the appellants was proved

before the Trial Court beyond doubt.

98. We have seen that the appellants have been charged by

the Trial Court for the offences punishable under Sections 302 and

304-B of the IPC separately. The charge under Section 304-B of

the IPC is not an alternative charge to Section 302 of the IPC.

99. Insofar as the conviction of the appellants under

Section 302 of the Indian Penal Code is concerned, it would appear

from the record that there is complete lack of direct evidence of

murder of the deceased. The conviction of the appellants is purely

based on circumstantial evidence. The circumstantial evidence is

direct evidence of a fact from which a person may reasonably infer

the existence or non-existence of another fact. A person’s guilt of a

charged crime may be proved by circumstantial evidence if that
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evidence, while not directly establishing guilt, gives rise to an

inference of guilt beyond a reasonable doubt. Thus, the

circumstantial evidence is evidence of circumstances which can be

relied upon not as proving a fact directly, but instead as pointing to

its existence. In every case based on circumstantial evidence, the

question that needs to be determined is whether the circumstances

relied upon by the prosecution are proved by reliable and cogent

evidence and whether all the links in the chain of circumstance are

complete so as to rule out the possibility of innocence of the

accused.

100. Undoubtedly, the conviction can be based solely on

circumstantial evidence, but it should be tested on the touchstone

of the law relating to proof beyond reasonable doubt.

101. The law relating to conviction on the basis of

circumstantial evidence has been delineated by the Supreme Court

in Sharad Birdhichand Sarda vs. State of Maharashtra since

reported in (1984) 4 SCC 116 in paras 153 and 154 as under:-

“153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.

It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not
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“may be” established. There is not only a grammatical
but a legal distinction between “may be proved” and
“must be or should be proved” as was held by this
Court in
Shivaji Sahabrao Bobade v. State of Maharash-
tra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973
Crl LJ 1783] where the observations were made:
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between ‘may be’ and
‘must be’ is long and divides vague conjectures from
sure conclusions.”

(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other hypoth-
esis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion con-
sistent with the innocence of the accused and must show
that in all human probability the act must have been
done by the accused.

154. These five golden principles, if we may say so, con-
stitute the panchsheel of the proof of a case based on
circumstantial evidence.”

102. In C. Chenga Reddy and Others Vs. State of Andhra

Pradesh, since reported in (1996) 10 SCC 193, the Supreme Court
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while dealing with a case based on circumstantial evidence in para

21 held as under: –

“21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature. More-
over, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In the present
case the courts below have overlooked these settled
principles and allowed suspicion to take the place of
proof besides relying upon some inadmissible evi-
dence.”

103. After referring to a catena of cases based on circum-

stantial evidence in Shivu and Others Vs. Registrar General,

High Court of Karnataka and Another, since reported in 2007 (4)

SCC 713, the Supreme Court held in para 12 as under: –

“12. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be in-
compatible with the innocence of the accused or the guilt
of any other person. (See Hukam Singh v. State of Ra-

jasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR
1977 SC 1063] ,
Eradu v. State of Hyderabad [AIR 1956
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SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 :
AIR 1983 SC 446] ,
State of U.P. v. Sukhbasi [1985 Supp
SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] ,
Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 :
1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Ku-
mar Chatterjeev. State of M.P. [1989 Supp (1) SCC 560 :
1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circum-
stances from which an inference as to the guilt of the ac-
cused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with
the principal fact sought to be inferred from those cir-
cumstances.
In Bhagat Ram v. State of Punjab [AIR 1954
SC 621 : 1954 Cri LJ 1645] it was laid down that where
the case depends upon the conclusion drawn from cir-
cumstances, the cumulative effect of the circumstances
must be such as to negative the innocence of the accused
and bring home the offences beyond any reasonable
doubt.

104. In Padala Veera Reddy Vs. State of Andhra Pradesh

and Others, since reported in 1989 Supp (2) SCC 706, the

Supreme Court laid down that in a case of circumstantial evidence,

the evidence must satisfy the following tests:-

“(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly estab-
lished;

(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;

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(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the con-
clusion that within all human probability the crime was
committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain con-
viction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
innocence.”

105. In the light of these guiding principles, we should

now consider the circumstances of the present case.

106. The appellant Nasruddin was married to the deceased

on 10.08.2003. Though, there is allegation of demand of a motor-

cycle at the time of marriage and also subsequent to the marriage

against the appellant Nasruddin and his father, there is no cogent

evidence on behalf of the prosecution in this regard. It is an admit-

ted case of the prosecution that out of the marriage, the deceased

was blessed with two children. They had cordial relationship would

also become evident from the evidence of PW-4 and PW-5, who

are father and mother respectively of the deceased. Both of them

have admitted in their evidence that the deceased along with her

husband (appellant Nasruddin) used to visit her maternal home fre-

quently. The father of the deceased (PW-4) has admitted in his evi-
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dence that he also used to frequently visit the matrimonial home of

his deceased daughter and the readymade garment shop of his son-

in-law at Gopalganj. He has admitted to the extent that even ten

days prior to the death of his daughter, he has visited her matrimo-

nial home. Both the parents have admitted that the deceased had

never lodged any complaint to the police or before the court re-

garding subjecting her to cruelty for non-fulfillment of demand of

motorcycle.

107. The evidence on record would indicate that the de-

ceased fell sick on 17.03.2017 and was taken to Gopalganj Sadar

Hospital and when her condition deteriorated, she was referred to

Gorakhpur for better treatment. The husband of the deceased and

other family members took steps to take her to Gorakhpur, but she

died while being taken to Gorakhpur. These facts would be evident

from the deposition of PW-1 and the I.O. of the case. The I.O. has

admitted in cross-examination that the mother of the deceased

(PW-5), Alamgir Ahmad (not examined) and Md. Naushad (not ex-

amined) stated before him in their statement recorded under Sec-

tion 161 of the CrPC that the deceased was unwell and was treated

at Gopalganj and while being taken to Gorakhpur for better treat-

ment she died. The sole defence witness has supported the afore-

said assertion made by PW-1. In this regard, DW-1 has proved the
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hospital registration receipt of the deceased issued by Gopalganj

Sadar Hospital. The hospital registration receipt supports the case

of the defence that on the fateful day, she was treated in Gopalganj

Sadar Hospital. The hospital registration receipt produced and ex-

hibited on behalf of the defence has not been disputed by the pros-

ecution in cross-examination. These facts would clearly establish

the conduct of the accused persons which would relevant under

Section 8 of the Indian Evidence Act. The evidence on record

shows that the accused persons tried their best to save the life of

the deceased when she was ailing.

108. The Medical Officer (PW-7), who conducted the

postmortem examination after the body was exhumed from the

Qabristan, reserved his opinion subject to viscera report. He only

stated about foul smell emanating from the decomposed body of

the deceased. There are no marks on the body, which would sug-

gest violence and struggle. The FIR was registered inter alia under

Section 306 of the IPC. After completion of investigation also, the

police submitted charge sheet under Sections 498-A, 306 and

201/34 of the IPC. Initially, the charge was also framed under the

aforesaid provisions under which the police had submitted charge-

sheet against the appellants. All the prosecution witnesses were ex-

amined during trial on the basis of aforesaid charge. However, after
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all the witnesses were examined during trial, the charge was altered

to Sections 302, 304-B and 201/34 of the IPC by the Trial Court

and, thereafter, only PWs 1, 3, 4 and 5 were recalled for further

cross-examination.

109. Thus, right from the beginning till the conclusion of

investigation, the investigating agency did not find any material in

support of homicidal death of the deceased. It was only after all the

witnesses were examined during trial, the Trial Court altered the

charge.

110. Thus, the issue is as to whether there was any mate-

rial to support the prosecution case that the death of the deceased

was homicidal.

111. The prosecution has argued that since the viscera re-

port exhibited by PW-9, a forensic lab technician, confirms that the

fluid contained Aluminium Phosphide, it was a case of murder and

not of suicide. The prosecution has also argued that since the de-

ceased died in her matrimonial home within the four walls of a

house, it was for the accused persons to establish that the death was

not homicidal in view of Section 106 of the Indian Evidence Act.

112. Section 106 of the Indian Evidence Act embodies the

rule that when any fact is especially within the knowledge of any

person, the burden of proving that, is upon him.
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113. Apparently, Section 106 of the Evidence Act, there-

fore, requires understanding the burden of proof. The burden of

proof as envisaged under Section 101 of the Indian Evidence Act

requires the person to prove the existence of fact which he had as-

serted. Section 106 is an exception to the general rule so laid down

under Section 101 of the Indian Evidence Act.

114. The burden to prove the guilt of the accused is al-

ways on the prosecution and the burden never shifts. Section 106

does not relieve the prosecution of its initial burden. On the con-

trary, it is designed to meet certain exceptional cases on which it

would be impossible, or at any rate disproportionately difficult, for

the prosecution to establish facts which are especially within the

knowledge of the accused or which he could prove without any dif-

ficulty or inconvenience.

115. In Sawal Das vs. State of Bihar since reported in

1974 (4) SCC 193, the Supreme Court explained the principle un-

derlying Section 106 of the Indian Evidence Act as under: –

“10. Neither an application of Section 103 nor of 106
of the
Evidence Act could, however, absolve the pros-
ecution from the duty of discharging its general or
primary burden of proving the prosecution case be-
yond reasonable doubt. It is only when the prosecu-

tion has led evidence which, if believed, will sustain a
conviction, or, which makes out a prima facie case,
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that the question arises of considering facts of which
the burden of proof may lie upon the accused.”

116. In Subramanian vs. State of Tamil Nadu since re-

ported in 2009 (14) SCC 415, the Supreme Court had occasion to

consider a case of the husband and wife remaining within the four

walls of the house and death of the wife took place. In para 23 of

the judgment, the Supreme Court observed as under: –

“23. So far as the circumstance that they had been liv-
ing together is concerned, indisputably, the entirety of
the situation should be taken into consideration. Ordi-
narily when the husband and wife remained within the
four walls of a house and a death by homicide takes
place it will be for the husband to explain the circum-
stances in which she might have died. However, we
cannot lose sight of the fact that although the same may
be considered to be a strong circumstance but that by
alone in absence of any evidence of violence on the de-
ceased cannot be held to be conclusive. It may be diffi-
cult to arrive at a conclusion that the husband and hus-
band alone was responsible therefor.”

117. Thus, it is well settled that Section 106 of the Indian

Evidence Act does not directly operate against either a husband or

wife staying in the same room.

118. Section 106 of the Indian Evidence Act does not ab-

solve the prosecution from discharging its general and primary bur-

den of proving the case beyond reasonable doubt. It is only when
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the prosecution has led evidence which, if believed, will sustain a

conviction, or, which makes out a prima facie case, that the ques-

tion would arise of considering facts of which the burden of proof

may lie upon the accused.

119. In the present case, the prosecution has even failed to

prove beyond reasonable doubt that the death was homicidal.

120. Moreover, the I.O. has admitted in his evidence that

the deceased was living in a joint house belonging to two agnates

namely, Mohit Mian and Ishad Mian. He has stated that he has not

recorded statements of the family members of the agnates of the

accused persons. Hence, it is not a case where the appellants and

the deceased alone were living within the four walls of the house

and death of the wife took place rather several persons of two fam-

ilies were living together in that house and the I.O. admittedly did

not record statement of anyone during investigation.

121. Furthermore, even mother of the deceased (PW-5)

admitted in cross-examination that she had come to know that the

deceased had consumed poison after three days of her death. There

is complete derth of evidence to prove the prosecution case that the

appellants were responsible for the felonious administration of poi-

son which caused death.

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122. In view of the discussions made above, I am of the

opinion that in the present case, the prosecution has failed to prove

the fact that the consumption of poison by the deceased was a fact

within the special knowledge of the appellants and, therefore, the

principle underlying under Section 106 of the Indian Evidence Act

would not apply.

123. Since it is a case of circumstantial evidence, proof of

motive would be an important corroborative piece of evidence. If

motive is indicated and proved, it would strengthen the probability

of the commission of the offence. The motive relied on by the

prosecution is ill-treatment by the appellants meted out to the de-

ceased for non-fulfillment of demand of motorcycle and the illicit

relationship between the appellant Nasruddin and Salamu Nesha.

However, the evidence on record does not show any proof that the

deceased was ever subjected to cruelty for demand of dowry or

there was illicit relationship between the appellants.

124. I am of the considered view that the prosecution has

utterly failed to prove the motive beyond doubt. Thus, an important

thing to complete the chain of circumstances is totally absent in the

present case.

125. The medical evidence and the forensic evidence, as

discussed above, do not prove beyond reasonable doubt that it was
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a case of homicidal death. I am of the considered view that in the

absence of legally admissible evidence, the trial court has con-

victed the appellants under Section 302 of the IPC merely on moral

ground, as the wife of the appellant Nasruddin had died in her mat-

rimonial home.

126. In so far as the conviction of the appellant under

Section 304-B of the IPC is concerned, it would be pertinent to

analyze the law on dowry death. Section 304-B of the IPC, which

defines and provides the punishment for dowry death, reads as

under: –

“304-B. Dowry death.–(1) Where the death of a
woman is caused by any burns or bodily injury or oc-
curs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to cru-
elty or harassment by her husband or any relative of
her husband for, or in connection with, any demand
for dowry, such death shall be called “dowry death”,
and such husband or relative shall be deemed to have
caused her death.

Explanation– For the purpose of this sub-section,
“dowry” shall have the same meaning as in
Section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be pun-

ished with imprisonment for a term which shall not be
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
66/77

less than seven years but which may extend to impris-
onment for life.” (emphasis mine)

127. A perusal of Section 304-B of the IPC clearly

demonstrates that if a married woman dies otherwise than under

normal circumstances within seven years of her marriage and it is

shown that soon before her death she was subjected to cruelty or

harassment by her husband or any relative of her husband in

connection with any demand for dowry, such death shall be called

dowry death, and such husband or relative would be deemed to

have caused her death.

128. In Major Singh Vs. State of Punjab, since reported

in (2015) 5 SCC 201, a three-Judge Bench explained the condition

precedent for sustaining the conviction under Section 304-B of the

IPC in para 10 as under :-

“10. To sustain the conviction under Section 304-B
IPC, the following essential ingredients are to be es-
tablished:

(i) the death of a woman should be caused by
burns or bodily injury or otherwise than under a
‘normal circumstance’;

(ii) such a death should have occurred within
seven years of her marriage;

(iii) she must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;

Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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(iv) such cruelty or harassment should be for or
in connection with demand of dowry; and

(v) such cruelty or harassment is shown to have
been meted out to the woman soon before her
death.”

129. Section 113-B of the Evidence Act provides for

presumption as to dowry death. It reads as under: –

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

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

130. As per the definition of dowry death in Section 304-

B of the IPC and the presumption provided under Section 113-B of

the Evidence Act, one of the essential ingredients amongst others is

that the woman concerned must have been subjected to cruelty or

harassment “soon before” her death in connection with the demand

of dowry.

Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
68/77

131. In Bakshish Ram v. State of Punjab, since reported

in (2013) 4 SCC 131, while interpreting the provisions prescribed

under Section 113-B of the Evidence Act and Section 304-B of the

IPC, the Supreme Court observed as under: –

“19. As discussed above, a perusal of Section 113-B
of the Evidence Act and
Section 304-B IPC shows that
there must be material to show that soon before her
death the victim was subjected to cruelty or
harassment. In other words, the prosecution has to
rule out the possibility of a natural or accidental
death so as to bring it within the purview of “death
occurring otherwise than in normal circumstances”.
The prosecution is obliged to show that soon before
the occurrence, there was cruelty or harassment and
only in that case presumption operates. As observed
earlier, if the alleged incident of cruelty is remote in
time and has become stale enough not to disturb the
mental equilibrium of the woman concerned, it would
be of no consequence. In the case on hand,
admittedly, the prosecution heavily relied on the only
evidence of Sibo (PW 2), the mother of the deceased
which, according to us, is a hearsay, in any event, a
very general and vague statement which is not
sufficient to attract the above provisions. In such
circumstances, as argued by the learned counsel for
the appellants, accidental death cannot be ruled out.

20. Another relevant aspect to be noted is that it was
Appellant 1, husband of the deceased who took the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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deceased to the hospital and it was he who informed
the police as well as parents of the deceased. It is also
brought to our notice that he did not make any
attempt to run away from the place of occurrence.”

132. In M. Srinivasulu Vs. State of A.P., since reported in

(2007) 12 SCC 443, the Supreme Court observed as under: –

“The presumption shall be raised only on proof of the
following essentials:

(1) The question before the court must be whether the
accused has committed the dowry death of a woman.
(This means that the presumption can be raised only
if the accused is being tried for the offence under
Section 304-B IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.

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

133. Recently, a three-judge Bench of the Supreme Court in

Satbir Singh Vs. State of Haryana, since reported in 2021 SCC

OnLine SC 404, while interpreting the phrase “soon before” used

in Section 304-B of the IPC observed : “Being a criminal statute,

generally it is to be interpreted strictly. However, where strict

interpretation leads to absurdity or goes against the spirit of

legislation, the courts may in appropriate cases place reliance
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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upon the genuine import of the words, taken in their usual sense to

resolve such ambiguities.”

134. In Satbir Singh (Supra), the Supreme Court further

observed: “Considering the significance of such a legislation, a

strict interpretation would defeat the very object for which it was

enacted. Therefore, it is safe to deduce that when the legislature

used the words, “soon before” they did not mean “immediately

before”. Rather, they left its determination in the hands of the

courts.”

135. The Supreme Court further observed: “What is

pivotal to the above determination, is the establishment of a

“proximate and live link” between the cruelty and the

consequential death of the victim.”

136. The Supreme Court ruled that when the prosecution

establishes such proximate and live link presumption of causation

arises against the accused under Section 113-B of the Evidence

Act.

137. Coming back to the evidence in the present case, we

have seen that though it is alleged in the FIR that a Hero Honda

motorcycle was demanded by the accused Nasruddin and his father

at the time of marriage and after persuasion bidagari of the

daughter of the informant could be possible. It is also alleged that
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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in the sasural, the husband, sister-in-law and the father-in-law used

to torture her for motorcycle. However, no date, month or year of

alleged demand or alleged torture after the marriage has been

given. There is no allegation that soon before her death or within a

reasonable proximity of death either there was any demand from

the deceased for dowry or the deceased was subjected to any kind

of cruelty for non-fulfillment of such demand. During trial also, no

witness has come forward to say that soon before death the victim

was subjected to any kind of cruelty due to non-fulfillment of

demand of dowry.

138. P.Ws. 4 and 5, being the father and mother

respectively of the deceased, are the main witnesses, whose

evidence would be relevant to determine as to whether the

prosecution has been able to prove its case beyond reasonable

doubt.

139. P.W.4, the father of the victim has vaguely stated in

his deposition that the husband and father-in-law of the deceased

always used to demand motorcycle. He states that the marriage of

his daughter had taken place on 10.08.2003. The death of his

daughter had taken place on 17.03.2007. There is nothing in his

evidence from which it can be said that soon before death or in

close proximity of death, the victim was subjected to cruelty for
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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non-fulfillment of demand of motorcycle. He has admitted in his

cross-examination that he always used to visit the matrimonial

home of his daughter and his daughter along with her husband also

used to visit her maternal home frequently. He also admits that

before death of the deceased, no complaint was ever lodged with

the police or before the court. He admits that he had visited the

matrimonial home of his daughter about ten days before her death

and even during that time no complain was made to him.

140. Similarly, P.W.5, mother of the deceased has admitted

that her daughter frequently used to come to her maternal home

from sasural. She has made a vague allegation that in sasural her

daughter was being subjected to cruelty for demand of motorcycle.

She also has not stated a word to even remotely suggest that soon

before her death or within a reasonable proximity of her death any

demand of dowry was made from her daughter or she was

subjected to cruelty for non-fulfillment of such demand. She has

introduced a new story in her deposition that her daughter was not

happy in her sasural as her husband was having extra marital

relationship with his sister-in-law. Save and except this

uncorroborated testimony of P.W.5, there is no cogent evidence to

support the story. There is also no cogent evidence to support even

the vague allegation of demand of motorcycle. No prior complaint
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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in this regard was ever made by the deceased or her parents.

141. On the contrary, the evidence on record suggests that

the informant and father-in-law of the deceased are cousins. The

families were known to each other since long. The deceased and

her husband had cordial relationship and they were blessed with

two children. The Trial Court completely erred in ignoring that the

prosecution failed to present any material to rule out the possibility

of a suicidal death so as to bring it within the purview of the death

occurring otherwise than in normal circumstances as required

under Section 304-B of the IPC. The Trial Court completely

ignored the evidence of I.O. wherein he admitted that Alamgir

Ahmad and Md. Naushad stated before him in their respective

statements that the deceased was taken to hospital for treatment

and she died while being taken to Gorakhpur by the husband and

his relatives for treatment. It ignored the admission of the I.O. that

Md. Naushad had stated that the family members of the victim had

participated in the burial rituals. It also brushed aside the

photograph exhibited on behalf of the defence showing presence of

P.W.5 and her another daughter on the date of burial of the victim.

142. The Trial Court erred in ignoring the admission of the

I.O. that the mother of the deceased had stated in her statement
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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under Section 161 of the Cr.P.C that the deceased died while being

taken to Gorakhpur for better treatment.

143. The Trial Court also erred in ignoring that since the

prosecution failed to establish the fact that “soon before” the

occurrence of or in close proximity of death, the victim was

subjected to cruelty or harassment in connection with demand of

dowry, the presumption under Section 113-B of the Evidence Act

would not operate. It also erred in ignoring the fact that the

prosecution failed to establish any reliable evidence of subsisting

demand. Thus, in the absence of the fulfillment of the essential

ingredients of Section 304-B of the IPC, the conviction of the

appellants under Section 304-B of the IPC cannot be upheld.

144. In so far as the conviction of the appellants under

Section 201/34 of the IPC is concerned, the law is well settled that

a charge under Section 201 of the IPC can be maintained in case

the prosecution is able to establish that an offence had been com-

mitted, the person charged with the offence had knowledge or the

reason to believe that the offence had been committed, the said per-

son has caused disappearance of evidence and such act of disap-

pearance has been done with the intention to screening the offender

from legal punishment. Mere suspicion is not sufficient to bring

home the charge under Section 201 of the IPC.

Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
75/77

145. In Hanuman and Ors. vs. State of Rajasthan since

reported in 1994 SCC Supp (2) 39, the Supreme Court held that

mere fact that the deceased allegedly died an unnatural death could

not be sufficient to bring home the charge under Section 201 of the

IPC, unless the prosecution was able to establish that the accused

person knew or had reason to believe that an offence had been

committed, causing the evidence of the commission of the offence

to disappear, he cannot be convicted.

146. In the instant case, there is no such evidence against

the appellants. On the contrary, the evidence is that when the de-

ceased was found unwell, she was taken to Sadar Hospital, Gopal-

ganj for treatment. She was administered fluid and was provided

treatment at Sadar Hospital. When her condition deteriorated,

while she was being taken to Gorakhpur in a vehicle for better

treatment, she died.

147. Further, the evidence on record makes it clear that the

body of the deceased was not disposed of hurriedly. It was brought

back to the matrimonial home of the deceased and the burial took

place as per Muslim rites in the Qabristan. There is also evidence

that the family members of the deceased were present at the time

of burial. They had no suspicion at that time of commission of any

offence. When a photograph taken at the time of burial of the de-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
76/77

ceased containing the pictures of mother and sister of the deceased

was shown to PWs 4 and 5 by the defence witness, they tried to

give evasive reply.

148. Furthermore, the prosecution did not even examine

any neighbour of the appellants to substantiate the allegation of

hurried disposal of the body. On the contrary, the prosecution with-

held witnesses like, Ekramul Haque, Md. Naushad and Alamgir

Ahmad, whose statements were recorded by the I.O. during inves-

tigation under Section 161 Cr.P.C.

149. Thus, in the facts and circumstances of the case, I am

of the view that the trial court was not justified in convicting the

appellants under Section 201/34 of the IPC.

150. In view of the foregoing discussions, I am persuaded

to conclude that the impugned judgment and order cannot be

legally sustained. Consequently, the impugned judgment of convic-

tion dated 26.03.2019 and order of sentence dated 29.03.2019 are,

hereby, set aside. The appellants, namely, Nasruddin Mian @ Lalu

@ Nasiruddin Ahmad and Salamu Nesha @ Salamun Nesa are di-

rected to release forthwith, if they are not required in any other

case.

151. These appeals stand allowed.

Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
77/77

152. The reference made by the trial court under Section

366 of the Cr.P.C is rejected.

153. Before parting with the reference and the appeals, I

would once again record my appreciation for the able assistance

rendered by the learned amicus curiae.

154. The Patna High Court, Legal Services Committee is,

hereby, directed to pay Rs.7,500/- (rupees seven thousand five hun-

dred) to Ms. Anukriti Jaipuriar, learned amicus curiae in Death

Reference No.1 of 2019.

(Ashwani Kumar Singh, J)

Arvind Srivastava,J.: I agree.

( Arvind Srivastava, J)

Pradeep
AFR/NAFR AFR
CAV DATE 19.05.2021
Uploading Date 21.06.2021
Transmission Date 21.06.2021

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