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Prakash Kushwaha And Anr vs The State Of Bihar on 3 April, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.853 of 2017
Arising Out of PS. Case No.-139 Year-2013 Thana- GOPALPUR District- Gopalganj

1. Prakash Kushwaha S/o Satyanarayan Bhagat

2. Chandrawati Devi W/o Satyanarayan Bhagat.

Both R/o Village – Rampur Khurd, P.S. – Gopalpur, District – Gopalganj.

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

Appearance :

For the Appellant/s : Mr. S. Lal, Adv.
Mr. Harendra Prasad, Adv.
For the Respondent/s : Mr. Bipin Kumar, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date : 03-04-2019

1. Appellants, Prakash Kushwaha, Chandrawati

Devi have been found guilty for an offence punishable under

Section 304B/34 of the IPC and each one has been sentenced to

undergo R.I. for seven years as well as to pay fine appertaining to

rupees ten thousand in default thereof to undergo S.I. for six

months, additionally, vide judgment of conviction dated

14.02.2017 order of sentence dated 15.02.2017 passed by

Additional Sessions Judge,Vth, Gopalganj in Sessions Trial

No.140/2014.

2. Gyanti Devi (PW.5) gave her fardbeyan on

04.11.2013 while she was at the Sasural of her deceased daughter

Kiran Kumari lying at village-Rampur Khurd divulging the fact

that deceased Kiran Kumari was married with Prakash Kushwaha
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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(Appellant No.1) whereupon, came at her Sasural where she led

her marital life happily for two years. Then thereafter, her

husband, father-in-law, mother-in-law advanced demand of one

chain (gold) and rupees one lac which, on account of her financial

constrain could not be fulfilled as a result of which, she was

subjected to torture and cruelty. Times without number she was

kicked out but, due to intervention of relatives anyhow she was

allowed to stay at her Sasural. During midst thereof, she had

begotten a daughter who is presently of two months. She has

further disclosed that today, after receiving the information that

her daughter has been murdered by her husband, father-in-law,

mother-in-law she along with others rushed came to her place

where they have been seen dead body of the deceased having

mark over her neck. During midst thereof, police also came on

beng informed.

3. After registration of Gopalpur P.S. Case

No.139/2013, investigation commenced and after concluding the

same charge sheet was submitted, followed with order of

cognizance whereupon the accused faced trial and met with the

ultimate result, subject matter of instant appeal. It looks pertinent

to mention that during course of trial the father-in-law of
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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deceased, namely, Satya Narayan Bhagat died, on account thereof,

his name has been expunged vide order dated 03.01.2017.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of

the Cr.P.C. is that of complete denial. It has further been pleaded

that deceased was suffering from some sort of abnormality

whereupon committed suicide. To substantiate the same, also

adduced oral as well as documentary evidence.

5. The prosecution has examined altogether eight

PWs in order to substantiate its case who are, PW.1-Amerika

Prasad, PW.2-Krishna Kushwaha, PW.3-Umesh Kumar, PW.4-

Ramnath Prasad, PW.5-Gayanti Devi, PW.6-Dulan Bhagat, PW.7-

Uma Shanker Chaudhary, PW.8-Dr. Imteyaz Ahmad as well as has

also exhibited Ext.1-Signature of Krishna Kushwaha over written

report, Ext.1/1-Signature of Umesh Kumar over written report,

Ext.1/2-Signature of Dulam Bhagat over written report, Ext.2-

Signature of Gyanti Devi over written report, Ext.3-Seizure list.

Side by side three Dws have also been examined on behalf of

defence who are DW.1-Mahendra Kushwaha, DW.2-Arun Kumar

Sharma and DW.3-Rajeev Ranjan Shrivastava as well as has also

exhibited Ext.A/1-Letter written by the deceased Kiran Devi,
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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Ext.A/2-Letter written by Kiran Devi, Marked-X-Photocopy of

Ext.A/1, Marked-Y-Photocopy Ext.A/2, Ext.B- Expert report..

6. After going through the record along with

judgment impugned, it is apparent that the learned lower court has

passed a cryptic nature of judgment on account thereof, same is fit

to be set aside and matter has to be referred to the learned lower

court for passing, afresh a judgment after hearing the parties. That

being so, the instant judgment is not at all burdened with the

submissions whatever been made at the rival end on the merit of

the case along with the evidences. At the stage of argument itself

the deficiency persisting on the judgment has been pointed out

over which both the parties were requested to address the court.

The simple submission having at the end of appellant is that there

happens to be fault of the court and so, appellants be acquitted

while the learned APP confronting the submission having at the

end of the appellant has submitted that it is not a case werein there

should be judgment of acquittal, rather lower court be directed to

take afresh exercise.

7. From the record it transpires that appellants were

charged for an offence punishable under Section 304B/34 of the

IPC as well as 302/34 of the IPC and the trial proceeded under

aegis thereof. As stated, after closer of the prosecution case
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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statement of accused under Section 313 of the Cr.P.C. were

recorded and during course thereof same nature of activity has

been followed at the end of the lower court. In defence, by way of

examination of three DWs the appellants/accused had pleaded it a

case of suicide, however due to mental abnormality.

8. Be that as it may, when the judgment impugned

has been gone through, it is evident therefrom, that save and

except having reference of framing of charge under Section

302/34, 304B of the IPC, brief reference of the prosecution case,

from para-6, 7, 8 the evidences on behalf of prosecution, defence

have been dealt with. During course thereof, it is evident that

learned lower court had not cared to elaborate the evidence at all

and further, the cross-examination as, the evidence consist

examination-in-chief, cross-examination and re-examination if

any in accordance with Section 136 of the Evidence Act. Due to

aforesaid fault, probability the learned lower court failed to

properly scrutinize the evidence in order to trace out whether a

case under Section 302/34 IPC is made out or under Section

304B/34 IPC. On the other hand, it is evident from the judgment

impugned that there happens to be no finding at the end of the

learned lower court with regard to Section 302 of the IPC.

Because of the fact that the learned P.O. had not marshalled the
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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evidence and so, he left to scrutinize the evidence enabling to

form an opinion whether the evidence as on record substantiate a

case under Section 302/34 IPC or Section 304/34 IPC. Apart from

this, the learned lower court also failed to perceive the ingredients

of Section 304B of the IPC inconsonance with the presumption

though rebuttable as provided under Section 113B of the Evidence

Act inconsonance with proper appreciation of the materials having

at the end of the appellant/accused.

9. In order to entwine the lower court with the art

of writing judgment as well as the requirements therefor, first of

all Section 354 Cr.P.C is to be seen and for better appreciation,

same is quoted below:-

“354. Language and contents of judgment.-(1)
Except as otherwise expressly provided by this Code,
every judgment referred to in section 353,-

(a) shall be written in the language of the Court;

(b) shall contain the point or points for
determination, the decision thereon and the reasons
for the decision;

(c) shall specify the offence (if any) of which, and
the section of the Indian Penal Code (45 of 1860 )
or other law under which, the accused is convicted
and the punishment to which he is sentenced;

(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and direct
that he be set at liberty.

(2) When the conviction is under the Indian Penal Code
(45 of 1860 ), and it is doubtful under which of two
sections, or under which Of two parts of the same
section, of that Code the offence falls, the Court shall
distinctly express the same, and pass judgment in the
alternative.

(3) When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment for
life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded, and, in
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the case of sentence of death, the special reasons for such
sentence.

(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more, but
the Court imposes a sentence of imprisonment for a term
of less than three months, it shall record its reasons for
awarding such sentence, unless the sentence is one of
imprisonment till the rising of the Court or unless the
case was tried summarily under the provisions of this
Code.

(5) When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck till he
is dead.

(6) Every order under section 117 or sub- section (2) of
section 138 and every final order made under section
125, section 145 or section 147 shall contain the point or
points for determination, the decision thereon and the
reasons for the decision.”

10. In Prem Kaur v. State of Punjab Ors.

reported in AIR 2013 SC 2083, it has been held:-

“10.The findings recorded by the courts below may be
perverse for the reasons that the Trial Court did not
record any sound reasoning for acquittal, though it had
been the case of the prosecutrix that she remained
hospitalised. She had deposed in court that she had been
subjected to the aforesaid crime. The High Court had also
been swayed by the reasoning recorded by the Trial
Court without making much effort to find out the truth in
the case.

11.In H.B. Gandhi and Ors. v. Gopi Nath and Sons, 1992
Supp (2) SCC 312, this Court held that if a finding of fact
is arrived at by ignoring or excluding relevant material or
by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the
vice of irrationality incurring the blame of being
perverse, then, the finding is rendered infirm in law.

12.In Triveni Rubber and Plastics v. Collector of Central
Excise, Cochin, AIR 1994 SC 1341 : (1994 AIR SCW

775) this Court held that an order suffers from perversity,
if relevant piece of evidence has not been considered or
if certain inadmissible material has been taken into
consideration or where it can be said that the findings of
the authorities are based on no evidence at all or if they
are so perverse that no reasonable person would have
arrived at those findings.

13.In Kuldeep Singh v. Commissioner of Police and Ors.,
AIR 1999 SC 677 : (1999 AIR SCW 129) this Court
while re-iterating the same view added that, if there is
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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some evidence on record which is acceptable and which
could be relied upon, howsoever, compendious it may be,
the conclusions would not be treated as perverse and the
findings would not be interfered with.

14.In Gaya Din and Ors. v. Hanuman Prasad and Ors.,
AIR 2001 SC 386 : (2000 AIR SCW 4275) this Court
further added that an order is perverse, if it suffers from
the vice of procedural irregularity.

15.In Rajinder Kumar Kindra v. Delhi Administration,
AIR 1984 SC 1805, the Court while dealing with a case
of disciplinary proceedings against an employee
considered the issue and held as under–

“It is equally well-settled that where a quasi-judicial
tribunal or arbitrator records findings based on no legal
evidence and the findings are either his ipse dixit or
based on conjectures and surmises, the enquiry suffers
from the additional infirmity of non-application of
mind and stands vitiated. ….they disclose total non-
application of mind…. The High Court, in our opinion,
was clearly in error in declining to examine the
contention that the findings were perverse on the short,
specious and wholly untenable ground that the matter
depends on appraisal of evidence.”

16.This Court in Satyavir Singh v. State of Uttar Pradesh
(2010) 3 SCC 174 : (AIR 2010 SC (Supp) 651 : 2010
AIR SCW 1442) held:

” ‘Perverse’ was stated to be behaviour which most of
the people would take as wrong, unacceptable,
unreasonable and a
‘perverse’ verdict may probably be defined as one that
is not only against the weight of the evidence but is
altogether against the evidence. Besides,, a finding
being ‘perverse’, it could also suffer from the infirmity
of distorted conclusions and glaring mistakes.”

17.If the judgments of the courts below are examined in
the light of the aforesaid settled legal proposition, the
same have to be lebelled as suffering from perversity.

18.The Trial Court did not decide the case giving
adherence to the provisions of Section 354 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the
‘Cr.P.C.’). The said provisions provide for a particular
procedure and style to be followed while delivering a
judgment in a criminal case and such format includes a
reference to the points for determination, the decision
thereon, and the reasons for the decision, as pronouncing
a final order without a reasoned judgment may not be
valid, having sanctity in the eyes of the law. The
judgment must show proper application of the mind of
the Presiding Officer of the court, and that there was
proper evaluation of all the evidence on record, and the
conclusion is based on such appreciation/evaluation of
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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evidence. Thus, every court is duty bound to state
reasons for its conclusions.

19.In State of Punjab v. Jagir Singh Baljit Singh and
Karam Singh, AIR 1973 SC 2407, this Court held as
under:

“A criminal trial is not like a fairy tale wherein one is
free to give flight to one’s imagination and phantasy. It
concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime with
which he is charged. Crime is an event in real life and
is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt
of the accused charged with the commission of a
crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to
the accused the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of
conjectures.”

20.In Mukhtiar Singh and Anr. v. State of Punjab, AIR
1995 SC 686 : (1995 AIR SCW 467) this Court
emphasised on the compliance of the statutory
requirement of Section 354, Cr.P.C., observing as under:
“…..same is far from satisfactory. Both, the order of
acquittal as well as the order of conviction, have been
made by the trial Court in a most perfunctory manner
without even noticing much less, considering and
discussing the evidence led by the prosecution or the
arguments raised at the bar….It was in paragraphs 28 to
32, noticed above, that the orders of acquittal and
conviction were made. The trial Court was dealing
with a serious case of murder. It was expected of it to
notice and scrutinize the evidence and after
considering the submissions raised at the bar arrive at
appropriate findings….. There is no mention in the
judgment as to what various witnesses deposed at the
trial, except for the evidence of the medical witness.
The judgment does not disclose as to what was argued
before it on behalf of the prosecution and the
defence. The judgment is so infirm…..The trial Court
appears to have been blissfully ignorant of the
requirements of Section 354(i)(b), Cr. P.C.Since, the
first appeal lay to this Court, the trial Court should
have reproduced and discussed at least the essential
parts of the evidence of the witnesses besides
recording the submissions made at the bar to enable
the appellate Court to know the basis on which the
‘decision’ is based. A ‘decision’ does not merely mean
the ‘conclusion’ – it embraces within its fold the reasons
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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which form the basis for arriving at the ‘conclusions’.
The judgment of the trial Court contains only the
‘conclusions’ and nothing more. The judgment of the
trial Court cannot,
therefore, be sustained. The case needs to be remanded
to the trial Court for its fresh disposal by writing a
fresh judgment in accordance with law.” (Emphasis
added)

21.Thus, in view of the above, the law can be laid down
that the court must give reasons for reaching its
conclusions. The courts below have dealt with the matter
in a very summary fashion. The statements of reasons,
for the conclusion reached by them, which could have
been more enlightening, are missing. The judgments of
the courts below do not comply with the requirement of
the statutory provisions as laid down in Cr.P.C. The view
taken by the courts below is manifestly unreasonable and
has resulted in miscarriage of justice. The courts ought
not to have given the defective and cryptic judgment. In
fact it is no judgment in the eyes of the law. We are not in
a position to judge the correctness, legality and propriety
of the findings recorded by the courts below. The absence
of sound reasons is not a mere irregularity, but a patent
illegality.

11. In Prasad @ Hari Prasad Acharya vs State Of

Karnataka reported in AIR 2009 SC 1911, it has been held:-

“8.Reasons introduce clarity in an order. On plainest
consideration of justice, the High Court ought to have set
forth its reasons, howsoever brief, in its order indicative
of an application of its mind. The absence of reasons has
rendered the High Court’s judgment not sustainable.

9.Even in respect of administrative orders Lord Denning,
M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All
ER 1148, observed : “The giving of reasons is one of the
fundamentals of good administration.” In Alexander
Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120
(NIRC) it was observed : “Failure to give reasons
amounts to denial of justice.” “Reasons are live links
between the mind of the decision-taker to the controversy
in question and the decision or conclusion arrived at.”
Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision
reveals the “inscrutable face of the sphinx”, it can, by its
silence, render it virtually impossible for the courts to
perform their appellate function or exercise the power of
judicial review in adjudging the validity of the decision.

Right to reason is an indispensable part of a sound
judicial system; reasons at least sufficient to indicate an
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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application of mind to the matter before court. Another
rationale is that the affected party can know why the
decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for
the order made; in other words, a speaking-out. The
“inscrutable face of the sphinx” is ordinarily incongruous
with a judicial or quasi-judicial performance.”

12. In Mukhtiar Singh and another v. State of

Punjab reported in AIR 1995 SC 686, it has been held:-

“12.We have gone through the judgment of the learned
trial Judge and find that the same is far from satisfactory.
Both, the order of acquittal as well as the order of
conviction, have been made by the trial Court in a most
perfunctory manner without even noticing much less,
considering and discussing the evidence led by the
prosecution or the arguments raised at the bar. The trial
Court noticed the prosecution case, the medical evidence
and the material collected during the investigation of the
case besides the arrest of different accused person on
different dates in paras 1 to 23 of the judgment. In
paragraph 24 it noticed the names of the prosecution
witnesses and in paragraphs 25 and 26 it noticed the fact
that the accused had been examined under Section 313
Cr. P.C. It was in paragraphs 28 to 32, noticed above, that
the orders of acquittal and conviction were made. The
trial Court was dealing with a serious case of murder. It
was expected of it to notice and scrutinize the evidence
and after considering the submissions raised at the bar
arrive at appropriate findings. In vain have we searched
through the cryptic judgment of the trial Court the
reasons which prevailed with it to acquit the respondents
in Criminal Appeal No. 489 of 1985 or convict the
appellants in Criminal Appeal No. 434 of 1985. On the
plainest requirement of justice and fair trial the least that
was expected of the trial Court was to notice, consider
and discuss, howsoever briefly, the evidence of various
witnesses as well as the arguments addressed at the bar.
The trial Court has not done so. The trial Court
apparently failed in the discharge of its essential duties.

There is no mention in the judgment as to what various
witnesses deposed at the trial, except for the evidence of
the medical witness. The judgment does not disclose as
to what was argued before it on behalf of the prosecution
and the defence. The judgment is so infirm that we are
unable to appreciate as to how the findings were arrived
at. The judgment of the trial Court is truly speaking not a
judgment in the eye of law. The trial Court appears to
have been blissfully ignorant of the requirements of
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Section 354(i)(b) Cr. P.C. Since, the first appeal lay to
this Court, the trial Court should have reproduced and
discussed at least the essential parts of the evidence of
the witnesses besides recording the submissions made at
the bar to enable the appellate Court to know the basis on
which the ‘decision’ is based. A ‘decision’ does not merely
mean the “conclusion” – it embraces / within its fold the
reasons which form the basis for arriving at the
“conclusions”. The judgment of the trial Court contains
only the “conclusions” and nothing more. The judgment
of the trial Court cannot, therefore, be sustained. The
case needs to be remanded to the trial Court for its fresh
disposal by writing a fresh judgment in accordance with
law.”

13. In Jamuna Chaudhari Ors vs State Of

Bihar reported in AIR 1974 SC 1822, it has been held:

“18. When the appellants took their appeal to the
High Court neither the evidence of the witnesses nor the
cases of the individual accused except Jamuna were
discussed at all. The High Court observed that, in view
of the arguments, advanced, it would reduce the
sentences of each of the accused persons, other than
Jamuna appellant, by half. So far as Jamuna appellant
was concerned, it dealt with the case only to point out
that the head injury was a stray one. This injury had been
held, by the High Court also, to be outside the scope of
the common object. The High Court came to the
conclusion that the appellant Jamuna could only be
convicted under Section 304 I. P. C. IInd part for the
injury on Laldhari’s head. Therefore, convicting him
under that section, it sentenced him to five years’
rigorous imprisonment. it maintained his conviction
under Section 147 I. P. C. With the necessary
modifications, the appellants’ appeals were dismissed.

19. We are unable to discover from the judgment of
the High Court whether the learned counsel for the
appellant had confined his submissions to those affecting
the sentences or alteration of the Section under which the
appellant Jamuna was to be convicted. We can only
infer, from the observations of the High Court, that this
may explain the very superficial manner in which the
case was dealt with by the High Court. We’ may,
however, observe that learned counsel are expected to
assist Courts in reaching a correct conclusion in a case in
which so much evidence and so many witnesses and
points worth consideration were there. The High Court
had dealt with the appeal in a very summary fashion. It
would have been better if the statement of reasons for
Patna High Court CR. APP (SJ) No.853 of 2017 dt.28-03-2019
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the conclusions reached by it was more enlightening.
The judgment under appeal does not comply with the
requirements of Section 367, Criminal Procedure Code.”

14. Accordingly, the judgment impugned is set aside.

Appeal is allowed. Matter is remitted back to the learned lower

court to hear both the parties and pass a judgment, afresh.

Appellants who are under custody are directed to be produced

before the learned lower court. In the background of tenure of

custody, the learned lower court is directed to dispose it of within

three months from the date of receipt of the judgment/lower court

record. Office is directed to transmit the record along with

judgment to the learned lower court through special messenger, at

once so that trial be concluded in terms of directions.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR AFR
CAV DATE 06.02.2019
Uploading Date 03.04.2019
Transmission Date 03.04.2019

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