IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.556 of 2013
Arising Out of PS. Case No.-218 Year-2009 Thana- ALAMGANJ District- Patna

1. Arjun Sao son of Late Gudar Sao

2. Dulari Devi wife of Arjun Sao, both are Resident Of Village- Patandevi
(Garhpar), Police Station- Alamganj, District- Patna

3. Rajesh Kumar son of Shyam Narayan Baidya (Shyambabu Sah) Resident Of
Village- Kajibag, Police Station- Alamganj, District- Patna

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

with
CRIMINAL APPEAL (DB) No. 609 of 2013
Arising Out of PS. Case No.-218 Year-2009 Thana- ALAMGANJ District- Patna

Pradeep Kumar @ Guddu @ Pappu son of Arjun Sao Resident Of Village-
Patandevi (Garhpar), Police Station- Alamganj, District- Patna.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

Appearance :

(In CRIMINAL APPEAL (DB) No. 556 of 2013)
For the Appellant/s : Dr. Rajesh Kumar Singh
For the Respondent/s : Mr. D.K. Sinha, APP
(In CRIMINAL APPEAL (DB) No. 609 of 2013)
For the Appellant/s : Dr. Rajesh Kumar Singh
For the Respondent/s : Mr. S.C.Mishra, APP

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA)

Date : 15-05-2019

1. Heard learned counsel appearing for the

appellants and the learned Addl. P.P. appearing for the State.
Patna High Court CR. APP (DB) No.556 of 2013 dt.15-05-2019
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2. These appeals are directed against the

judgment of conviction dated 24.04.2013 and the order of

sentence dated 30.04.2013, passed by Sri Ganesh Prasad

Singh, Additional Sessions Judge II, Patna City in Sessions

Trial No. 656 of 2010/ 712 of 2010/ 1242 of 2010, arising

out of Alamganj P.S. Case No. 218 of 2009, whereby and

whereunder the appellants have been convicted under

Sectionsections 302/Section34 of the Indian Penal Code and have been

sentenced to undergo rigorous imprisonment for life and to

pay a fine of Rs. 15,000/-. In default of payment of fine, the

appellants have further been directed to undergo

imprisonment for six months.

3. The prosecution case, in brief, is that the

informant namely, Mathura Prasad (P.W.1) gave his

fardbeyan on 01.10.2009 alleging precisely therein inter alia

that his daughter Sandhya alias Guria was married to the son

of the Arjun Sao (appellant no. 1 in Cr. Appeal No. 556 of

2013) namely, Pradeep Kumar @ Guddu @ Pappu (appellant

in Cr. Appeal No. 609 of 2013) in accordance with Hindu

religious rites in the year 2003. Two children were begotten

out of the wedlock. In the evening of 01.10.2009, the son-in-

law of the informant telephonically informed his son
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Sanandan Prasad (P.W. 3) that the daughter of the informant

is serious. After receving such information, the informant

alongwith his family members came to the residence of

Arjun Sao and found that the local police had already

reached there. The informant claims to have seen his

daughter lying dead on the roof of the house as she had

burnt. It is further alleged that the appellants and others

used to demand dowry and the son-in-law of the informant

demanded rupees five lacs for purchasing printing machine

as well as for construction of his house. Because of such

pressure, the informant had paid rupees one lac. However,

the demand continued and because of non-fulfillment of the

said demand, the daughter of the informant was killed by the

accused persons.

4. On the basis of the aforesaid fardbeyan of the

informant, Alamganj P.S. Case No. 218 of 2009 was

registered on 01.10.2009 for the offence under Sectionsection 304B

and Section120B of the Indian Penal Code against seven F.I.R.

named accused. After investigation, the police submitted

charge-sheet under Sectionsection 304B/Section34 I.P.C. on 29.12.2009

against the appellants, Dulari Devi and Pradeep Kumar. On

19.03.2010 police submitted supplementary charge-sheet
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under Sectionsection 304B/Section120B/Section34 I.P.C. against appellant, Arjun

Sah and on 08.07.2010 police submitted another

supplementary charge-sheet under Sectionsection 304B/Section34 I.P.C.

against the accused Mohan Sah and Sanjay Sah. The accused,

Rajesh Kumar and Pinky Devi were not sent up for trial.

Thereafter cognizance was taken in this case on 23.01.2010

and the case was committed to the Court of Sessions for trial

on 07.04.2010. Charges were framed against the appellants

on 30.11.2010 for the offence punishable under Sectionsections

304B/Section34 I.P.C., 120B/34 SectionI.P.C., 498A/34 SectionI.P.C. to which the

appellant pleaded not guilty and claimed to be tried. On

30.11.2010 charges were framed against the accused

persons namely, Mohan Sao and Sanjay Sao under Sectionsection

304B and Section120B/Section34 I.P.C. On 29.04.2011 charges under

Sectionsection 302/Section34 I.P.C. and Section 120B I.P.C. was framed

against Pradip Kumar @ Guddu @ Pappa, Dulari Devi, Arjun

Sao, Mohan Sao and Sanjay Sao. Thereafter, a petition under

section 319 Cr.P.C. was filed by the informant to issue

summons against the co-accused Rajesh Kumar and Pinki

Kumari for facing trial and after hearing them, the Court on

22.02.2012 framed charge against them also under sections

304B, 120B, 4998A and 302/34 I.P.C.

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5. During trial, the prosecution has examined

altogether 11 witnesses. P.W. 1/ Mathura Prasad

(informant), P.W. 2/ Kanti Devi (wife of the informant), P.W.

3/ Sanandan Prasad (son of the informant), P.W. 4/ Sant

Kumar (son of the informant), P.W. 5/ Dr. Ashok Kumar

Yadav, the doctor who conducted the post mortem

examination of the deceased, P.W. 6/ Kumari Kiran, I.O. of the

case, P.W. 7/ Manju Bala Bhokta, Second I.O. of the case, P.W.

8/ Sanjay Kumar, P.W.9/ Ramji Ram, P.W. 10/ Mahendra Sahu

and P.W. 11/ Vishnu Sharma.

6. In order to establish the charge, the

prosecution has proved the following documents as

exhibits :

Exhibit -1 Signature of Mathura Prasad on the fardbeyan

Exhibit -1/1 Signature of Sananand Prasad on the fardbeyan

Exhibit -2 Post Mortem Report

Exhibit-3 Seizure List

Exhibit-4 Envelope

Exhibit-5 Signature of Sanjay on the Seizure List

Exhibit-6 Signature of Ramji Ram on Seizure List

Exhibit-7 Fearbeyan

Exhibit-8 Formal F.I.R.

Exhibit-9 Inquest Report

Exhibit-10 Challan

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7. The appellants in their statements under

Sectionsection 313 of the Code of Criminal Procedure have said that

they are innocent and have falsely been implicated in this

case.

8. During trial, three witnesses namely, Gayatri

Devi, Mallu Sahu and Ram Pravesh Sahu have been examined

on behalf of the defence.

9. Before reaching to any conclusion, it is felt

necessary to firstly examine the evidence of all the

witnesses.

10. P.W. 1/ Mathura Prasad, who is father of the

deceased and the informant of the case, has stated in his

evidence that his daughter Sandhya Rani @ Guria was

married on 26.05.2003 with Pradeep Kumar (appellant). In

the marriage, he had given jewelry and other house hold

articles.

On her first return from in-laws’ place, she

informed that her father-in-law, Arjun Sah, mother-in-law,

Dulari Devi, elder and younger brothers of the son-in-law,

namely, Sanjay Sao and Mohan Sao, sister of son-in-law,

Pinky Devi and the brother in-law of the son-in-law, Rajesh

Kumar and the son-in-law used to demand rupees five lacs
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as dowry and also used to torture her.

On this, this witness gave rupees one lac to his

son-in-law so that his daughter may live peacefully in her in-

laws place, but they continued to demand dowry.

On 01.10.2009 at 6 P.M. the son-in-law, Pradeep

Kumar informed his son, Sanandan Prasad on his mobile

that his daughter is serious. On this, this witness, his wife,

Kanti Devi, son, Sanandan Prasad, daughter-in-law, Shashi

Devi and son Sant Kumar went to the in-laws place of his

daughter and saw that she was lying dead in burnt condition

on the third floor of her in-laws house. He had also seen

there a 15 liter container of kerosene oil. Police was present

there and had arrested the mother-in-law, Dulari Devi and

brother-in-law, Rajesh Kumar. Rest of the accused persons

had fled away.

This witness has identified his signature and the

signature of his son, Sanandan on the fardbeyan, which have

been marked as Exhibits- 1 and 1/1.

In his cross examination, this witness has

identified the photographs of his both sons, Sanandan and

Sant with the accused during pilgrimage to Amarnath

(Exhibit-A-A/VII).

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He also identified the application under Sectionsection

319 Cr.P.C. (Exhibit-A) and the signature of advocate, Tilak

Sao on the Protest Petition (Exhibit-B).

The defence has cross examined this witness at

length, but could not demolish his evidence given in

examination-in-chief and either mostly irrelevant questions

were asked or the same queries were made repeatedly.

11. The evidence of Kanti Devi, P.W. 2, the

mother of the deceased, is same as of the informant. The

defence has cross examined this witness also at length, but

could not demolish the evidence as given in examination in

chief and irrelevant questions were asked or the same

queries were repeated.

12. P.W. 3./ Sanandan Prasad, who is brother of

the deceased, in his evidence has repeated the version of the

fardbeyan and has given the same evidence as have been

given by his father and mother. In long cross examination,

the defence could not extract anything which could

strengthen their case.

13. P.W. 4/ Sant Kumar, the other brother of the

deceased, has also repeated the same version has given in

the fardbeyan. The only new fact he stated is that at an
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average he visited his sister’s in-laws’ place twice in 2003,

2005, 2006, 2007 and 2008 and on every occasion she

stated to have been assaulted with fists and slaps and lathi-

danda. He has further stated he never got her treated and he

did not know whether her in-laws had got her treated or not.

He only used to advise her to sponge with warm water.

Whenever assaulted, she used to come to her parental house.

14. P.W.5/ Dr. Ashok Kumar Yadav, has stated in

his evidence that on 02.10.2009 he was posted at N.M.C.H.

Patna. On that day at 10.30 P.M. he conducted the post

mortem of deceased, Sandhya Rani @ Guria and found the

following :-

Rigor Mortis was positive. Tongue protruded.

Dermo Epidermal burn injuries were found from the

head to legs; both front and back including upper

extremities. There were blackening and peeled off skin

and signing of hairs at places over the body.

On internal examination : Cranial and Spinal Canal –

Brain Congested, Thorax – Heard -rt filled, lungs

-congested, Soots found in congested Trachea,

Abdomen – Stomach -Scanty mucoid fluid, bladder-

empty, uts- NAD, other viscera – NAD.

Above mentioned burn injuries were antemortem,

grievous and dangerous to life in ordinary course of
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nature and caused by flame of fire.

In the opinion of the Doctor the cause of death is

shock due to burn injuries and its complication, and the time

of death is within 12 to 24 hours from the time of P.M.

examination. The post mortem report has been marked as

Exhibit-2.

15. It is the evidence of P.W. 6/ Kumari Kiran,

who is Investigating Officer of this case, that on 02.10.2009

she was posted at Women Cell, Patna as the Officer-in-

Charge and on that date she was given the charge of

investigation of Alamganj P.S. Case No. 218 of 2009

registered under Sectionsection 304B, Section120B I.P.C. She was given the

charge of fardbeyan, F.I.R., Inqeust Report and 4 photographs

of the deceased.

For identification, the photographs were marked

as Exhibit- X, X/1, X/2 and X/3 and the signature on the

envelope was marked as Exhibit- X/4.

The witness visited the place of occurrence

which is a three storied building and found that all the

members of the family were living in separate rooms with

their respective family.

The witness seized a plastic jerkin of the
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capacity of 15 liters, prepared the seizure list and took the

signature of independent witnesses Mahendra Sah and

Santh Sah. This witness has proved the seizure list as

Exhibit-3.

He again took the evidence of witness, Mathura

Prasad (informant). He also recorded the evidence of

witnesses, Kanti Devi, Sanandan Prasad, Sant Kumar, Girija

Devi, Gayatri Kumari, Mallu Sahu and Ram Pravesh Sahu. No

local witness supported the case of the informant.

The locality of the place of occurrence is densely

populated. She visited the place so many times but did not

take the evidence of local persons.

She did not seize anything except the said Jerkin

but had seen a gas stove on the roof.

Due to her transfer, she gave the charge of this

case to S.I., Manju Bala.

16. The evidence of P.W.7/ Manju Bala, who is

the second Investigating Officer of this case, is only that she

submitted charge-sheet against the accused persons

showing the accused, Rajesh Kumar and Pinky Devi as

innocent.

17. It is the evidence of P.W. 8/ Sanjay Kumar,
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that the deceased was his sister-in-law and on information

of her murder/death he had gone to the place of occurrence

at 12.30 P.M. on 02.10.2009 from where the S.I. had seized a

Gallon. He had put his signature on the seizure list. The

witness has identified his signature as Exhibit- 5.

18. P.W. 9/ Ramji Ram has stated that on hearing

about the death of daughter-in-law of Arjun Sah he had gone

to the house of the accused where the dead body was lying

on the third floor. The S.I. had prepared an Inquest Report on

which he had put his signature. He proved his signature on

the Inquest Report as Exhibit-6.

In his cross-examination, he stated that he had

heard that the daughter-in-law of Arjun Sahu has died due to

burn injuries and he had gone to verify the same.

19. The only evidence of P.W. 10/ Mahendra

Sahu is that nothing was seized in his presence but the

police had taken his thumb impression on a blank paper. The

prosecution has declared this witness as hostile and was

cross questioned in which he retracted from his earlier

statement.

In his cross-examination conducted by the

defence, he stated that he came to know that the deceased
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died due to catching fire while cooking.

20. It is the evidence of P.W. 11/ Vishnu Sharma

that on 01.10.2009 he was posted at Alamganj Police Station

as Police Sub Inspector. He was informed by the Officer-in-

Charge that a girl had died due to burn injuries in the house

of Arjun Sao near Patandevi Temple. On this, he alongwith

the Officer-in-Charge reached at the place of occurrence

which was the third floor of the house of Arjun Sao. There,

the dead body of a woman was lying in burnt condition. The

mother-in-law of the deceased and her son-in-law were

present there and were crying. In the meantime, the father,

brother of the deceased and other persons also reached

there. He recorded the fardbeyan of the father of the

deceased on the instructions of the Officer-in-Charge. The

fardbeyan is in his writing and it also bears his signature. It

also bears the signatures of Mathura Prasad and his son

Shailendra Prasad. It also bears the endorsement in the

writing and signature of Officer-in-Charge, Syed Wasimul

Haque. The entire fardbeyan alongwith endorsement has

been marked as Exhibit-7.

The formal F.I.R. is in the writing of Munshi,

Lalan Kumar Singh and it bears the signature of the Officer-
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in-Charge, Syed Wasimul Haque. Formal F.I.R, has been

marked as Exhibit-8.

The Inquest Report was also prepared by this

witness and its carbon copy has also been proved by him as

Exhibit-9.

The challan for sending the dead body was also

prepared by this witness and its carbon copy has also been

proved him as Exhibit-10.

12. The defence has also examined three

witnesses. All the three witnesses are witnesses to the

Charge-sheet, but they were not examined by the

prosecution.

13. It is the evidence of D.W. 1/ Gayatri Devi that

on 01.10.2009 she was living in the house of Arjun Sao as a

tenant. On that very day, the deceased was cooking on the

roof. She alongwith others heard the screaming sound of the

deceased on which they rushed to the roof and saw that the

deceased was severely burnt and the Gas cylinder had gone

off. At that very time, none was present there on the roof.

This witness also stated that when she went to the roof on

hearing the screaming, she saw the deceased in burnt and

dead condition.

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14. It is the evidence of D.W. 2/ Mallu Sah that

the incident took place about 3-4 years ago. He was at his

shop when he heard that the deceased had got burnt while

cooking on Gas. He had not gone to the place of occurrence.

15. D.W. 3/ Ram Pravesh Sah has stated in his

evidence that on seeing the smoke he went to the place of

occurrence and saw that the deceased had burnt to death.

He came to know that she caught fire while cooking. At that

time she was alive, later on she died. There was none present

at the place of occurrence when the occurrence took place.

22. Sri Ajay Thakur, learned Sr. Counsel

appearing for the appellant submitted that on the same set

of evidence three accused persons have been acquitted by

the Sessions Court while four accused persons have been

found guilty and have been convicted. In its detailed

judgment, after considering all the facts and circumstances,

this was not held to be a case of dowry death by the Sessions

Court and the accused persons were held guilty for

committing murder, and therefore, there is no question of

presumption against the accused persons.

So far as the conviction in case of murder is

concerned, there is no eye witness to the alleged occurrence.
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There is no independent witness and only members of the

family have come forward to give evidence while the place of

occurrence is a three storied building situated in a densely

populated locality. The tenants, who live in the same

building and are witnesses to the charge-sheet, have

intentionally not been examined by the prosecution. It is the

defence side which has brought these independent

witnesses, who are tenants of the same building and had

reached the place of occurrence at the first instance, as

defence witnesses and it is their specific evidence that the

deceased died accidentally while cooking. The Investigating

Officer had also found a gas stove on the roof.

There is no motive behind the alleged murder.

All the witnesses have stated that the accused Arjun Sao has

four duaghters-in-law and they all are leading a happy and

peaceful life, in such circumstances, why would anyone kill

his youngest daughter-in-law ?

17. As an alternative argument, it was submitted

by Mr. Thakur that in the fardbeyan the informant has

specifically stated that his son-in-law, Pradeep (appellant)

was always demanding rupees five lacs for setting a printing

press and for constructing a house. He was given rupees one
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lac by the informant, but even thereafter he continued to

demand the money and on non-fulfillment he used to torture

the deceased and ultimately killed her.

Even otherwise, the concept of joint family is no

more and even the I.O. had found that father-in-law with

mother-in-law, his sons with their wives were living

separately. The daughter and her husband do not live in his

house.

In such circumstances, it cannot be said that

without any motive all the members of the family together

will kill the youngest daughter-in-law of the family.

Even if, on the basis of evidence available, it is

considered to be a case of murder (the Sessions Court has

already negated it to be a case of dowry death), only the

husband can be held responsible for all this not the entire

family.

18. Sri Ajay Mishra, learned Addl. P.P. appearing

for the State has vehemently opposed these submissions and

the appeal. It was submitted by him it is a case of heinous

murder of a 28 year old woman who has two children.

He submitted that the doctor in the post mortem

examination found that the tongue of the deceased was
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protruded from which it is evident that her murder was

cause by pressing her neck, due to the severe burning of the

body, the doctor did not find any mark of ligature on the

neck, and thereafter to give it a colour of a misshappening,

she was taken to the roof and burnt there and a gas stove

was placed there to give an impression that she died

accidentally while cooking. Had this been a real fact, the I.O.

would have found cooked, under-cooked, uncooked food,

vegetables, water etc. alongwith the gas stove. Secondly,

defence witnesses have stated that they rushed to the roof

on hearing the screaming, but according to D.W. 1 she had

already died while as per D.W. 3 she died subsequently, but

they do not say as to what they did to extinguish the fire,

whether they poured water or not, whether they put a

blanket or thick cloth on the burning body or not. The

Investigation Officer also did not find any sign of effort to

extinguish the fire. According to D.W. 3, when he reached at

the roof the deceased was alive. In this situation, it is quite

unnatural as to why no steps were taken to take her to a

hospital when the place of occurrence is a densely populated

locality of the town.

To flee away from the place of occurrence after
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giving information on phone and not to inform the police

about the occurrence and simply giving statement under

Section 313 Cr.P.C. that he would depose, brings the husband

in the shadow of doubt because the defence witnesses give

contradictory statements and their conduct is unnatural.

Recovery of the dead body of the wife in a

severely burnt condition in the house of her husband, fleeing

of the husband from the place of occurrence without

informing the police about the occurrence, absence of any

evidence to the effect that the husband lives or works in a

different town are such questions which were to be

answered by the husband, but he has completely failed to

discharge this liability.

19. This Court is in agreement with the

submissions advanced by Sri Mishra and the alternative

submissions advanced by Sri Thakur. Accordingly, Cr. Appeal

No. 609 of 2013 is dismissed and the judgment of conviction

dated 24.04.2013 and the order of sentence dated

30.04.2013, as against the appellant, Pradeep Kumar, is

affirmed.

Cr. Appeal No. 556 of 2013 is allowed and the

judgment of conviction dated 24.04.2013 and the order of
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sentence dated 30.04.2013, as against the appellants, Arjun

Sao, Dulari Devi and Rajesh Kumar, is set aside.

Since the appellants, Arjun Sao and Dulari Devi

are on bail, they are discharged from the liability of their

respective bail bonds and the appellant, Rajesh Kumar, who

is in custody, is directed to be released forthwith, if not

required in any other case.

(Arvind Srivastava, J)

Rakesh Kumar, J : I agree.

(Rakesh Kumar, J)

mcv/-

AFR/NAFR NAFR
CAV DATE 20.11.2018
Uploading Date 16.05.2019
Transmission Date 16.05.2019