Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.604 of 2015
Arising Out of PS.Case No. -353 Year- 2009 Thana -CIVIL LINE District- GAYA

Sanjay Kumar Gupta, son of Sri Ramdeo Sao @ Ramdeo Prasad, resident of
Mohalla- Ghugharitand, P. S. Civil Lines, District Gaya.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ramakant Sharma-Sr. Advocate
Mr. L. K. Sharma-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 03-07-2018

Appellant Sanjay Kumar Gupta has been found guilty

for an offence punishable under Section 304B of the I.P.C. and

sentenced to undergo S.I. for nine years, under Section 498A of the

I.P.C. and sentenced to undergo S.I. for two years, under Section 323

of the I.P.C. and sentenced to undergo S.I. for 15 days, under Section

3 of the D.P. Act and sentenced to undergo S.I. for three months as

well as to pay fine appertaining to Rs.3,000/- and in default thereof, to

undergo S.I. for three months, additionally, under Section 4 of the

D.P. Act and sentenced to undergo S.I. for three months as well as to

pay fine appertaining to Rs.3,000/- and in default thereof, to undergo

S.I. for three months, additionally, with a further direction to run the

sentences concurrently, with a further direction that the period having
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 2

undergone during course of trial will be subject to set off in

accordance with Section 428 of the Cr.P.C. vide judgment of

conviction dated 31.08.2015 and order of sentence dated 03.09.2015

passed by the Additional Sessions Judge-4th, Gaya in Sessions Trial

No.544 of 2010/ 29 of 2015.

2. Bimla Devi (PW-3) gave her fard-bayan on

15.11.2009 at about 10.00 a.m. at A.N.M.M.C.H., Emergency Ward,

Gaya before the police officials of Magadh Medical P.S. disclosing

therein that her daughter Rubi Devi, deceased was married on

17.05.2004 with Sanjay Kumar Gupta, son of Sri Ramdeo Sao @

Ramdeo Prasad of village-Kachnama, P.S. Makhdumpur, at present

resident of Mohalla-Ghughari, Narayani Mai Pool, Gautam Chowk,

P.S. Civil Lines, District-Gaya, as per Hindu rites and rituals. At the

time of negotiation of marriage, her Samdhi advanced demand of

dowry and so, during course of marriage, she had gifted Anusa

Gadna, utensils handed over cash totaling Rs.3,50,000/-. After

marriage, Rubi Devi had gone to her sasural, but she was not allowed

to lead peaceful life as her husband Sanjay Kumar Gupta, father-in-

law Ramdeo Sao, mother-in-law Usha Devi, brother-in-law Pawan

Kumar, Niranjan Kumar, they all began to torture. Sometimes

physically manhandling her for fulfilment of demand of dowry. Their

torturous activity had gone to such extent that at the time of death of
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 3

grand mother of deceased, she was not allowed to visit her Maika.

They were demanding Rs.one lac for getting the husband (Sanjay

Kumar Gupta) either to have his employment by paying bribe or to

initiate his independent business. Anyhow, they have managed

Rs.30,000/- and paid to her son-in-law Sanjay Kumar Gupta and after

paying the same, he got employment as a Teacher under Shiksha

Mitra. Even thereafter, they continued with persistent demand

regarding remaining, which her daughter used to inform her

frequently and for that, she had also disclosed with regard to torturous

activity having attributed at the end of the accused persons. All of a

sudden, she received information on 14.11.2009 at about 3.30 p.m.

over her mobile No.9308219096 that her daughter Rubi Devi has been

burnt completely and her sasuralwala took her to A.N.M.M.C.H. for

treatment. Then thereafter, she along with her family members

reached at the A.N.M.M.C.H. on 14.11.2009 at about 6.30 p.m. where

she came to know that her daughter has died and her dead body has

been placed at mortuary. She had not found anybody from her sasural,

whereupon, she gone to Civil Lines Police Station and informed.

Today, that means to say on 15.11.2009, when she came back at

A.N.M.M.C.H., dead body of her daughter was taken for post

mortem. It has further been disclosed that the occurrence had taken

place at Narayan Mai Chowk, Ghugharitand, P.S. Civil Lines,
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 4

District-Gaya on 14.11.2009.

3. The aforesaid fard-bayan was transmitted to Gaya

Civil Lines P.S., whereupon Civil Lines P.S. Case No.353 of 2009

was registered followed with an investigation and after completing the

same, chargesheet has been submitted against the appellant keeping

investigating pending against other co-accused and the same happens

to be the basis for trial, meeting with the ultimate result, the subject

matter of instant appeal.

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. Furthermore, it is evident that so

many alternative pleas have been taken up at the end of the appellant.

First of all, it has been pleaded that accused/ appellant was not at all

present on the alleged date and time of occurrence as being a Teacher,

he was present at his place of posting. Then, it has been pleaded that

deceased was an idiot and for that, she was being treated since long. It

might be possible that she got burnt on account of accidental fire. To

substantiate the same, apart from oral evidences, documentary

evidences have also been led.

5. Prosecution in order to support its case, had

examined altogether five PWs, who are PW-1, Parag Anand, PW-2,

Ratan Kumar, PW-3, Bimla Devi, PW-4, Dr. Arbind Prasad and PW-
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 5

5, Paras Nath Dwedi, I.O. Side by side, had also exhibited as Exhibit-

1 series, signature of informant as well as other witnesses over the

fard-bayan, Exhibit-2, post mortem report, Exhibit-3, fard-bayan,

Exhibit-4, formal F.I.R., Exhibit-5, inquest report. Defence had also

examined altogether five DWs, who are DW-1, Anil Kumar, DW-2,

Jagarnath Gautam, DW-3, Sarita Kiran, DW-4, Binod Kumar Pandey

@ Binod Kumar Sah and DW-5, Vinay Kumar Gupta. Side by side,

had also exhibited, Exhibit-A, signature of Sanjay Kumar Gupta

(appellant) over attendance register (relating to date 14.11.2009),

Exhibit-B series, doctor’s prescription, Exhibit-C, signature of

informant over compromise petition, Exhibit-D, C.C. of judgment of

Sessions Trial No.194 of 2014/ 498 of 2014, Exhibit-E series, C.C. of

deposition of respective witnesses concerning above referred Sessions

Trial.

6. While assailing the judgment of conviction and

sentence, the learned counsel for the appellant has raised various

points. The first and foremost happens to be that the case has been

compromised and from the compromise petition, it is apparent that

subsequently to the event the prosecution party collected correct

information regarding the affair, whereupon did not opt to prosecute

the appellant and the aforesaid situation has been divulged by none

others than own brother of deceased (DW-5). In its continuity, it has
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 6

also been submitted that during course of sailing of other Sessions

Trial being taken up against the remaining accused, witnesses have

not supported the case of the prosecution as a result of which, the

other co-accused got acquittal. Exhibit-A, Exhibit-D and Exhibit-E

series are the documents which support the finding. That being so, the

Court should take notice of the subsequent event, more particularly

visualizing on account of real affair having noticed by the prosecution

party completely exonerating culpability of the appellant during

commission of the alleged occurrence.

7. Then, it has been submitted that plea of alibi has also

been taken and for that, apart from Exhibit-A, attendance register.

DW-3, Principal of concerned School had supported the same. It has

also been submitted that on 14.11.2009, happens to be the Children

Day and on which date, the Teachers, Students are being engaged in

cultural programme wherein there was active involvement of the

appellant and so, the prosecution evidence dragging the appellant

under the column of an accused is found completely gutted down.

Because of the fact that plea of alibi is found duly proved, whereupon

the allegation whatsoever been attributed against the appellant could

not survive.

8. Furthermore, it has also been pleaded that deceased

was an idiot or was suffering from mental disorder, more particularly
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 7

was schizophrenic and for that, she was being treated since last so

many years. Unfortunately, it appears that she had gone to cook

during course of the same, she sustained accidental fire. In the

aforesaid background, it has also been submitted that conduct of

family members is also to be seen, who taken the deceased

immediately to A.N.M.M.C.H. for treatment where she died during

course of treatment. The instant prosecution has been launched only in

revengeful manner as when the prosecution party came, they have not

seen any of the Sasuralwala. Though they have admitted that deceased

was admitted at A.N.M.M.C.H. by her sasuralwala. Had there been

any kind of adverse activity at the end of appellant or his family

members, then in that circumstance, deceased would not have been

taken to A.N.M.M.C.H. for admission as well as treatment.

9. It has also been submitted that so far demand and

torture is concerned, apart from being bald in its nature, there also

happens to be completely lacking at the end of the prosecution to

satisfy that soon before her death, deceased was subjected to torture

for demand as well as fulfilment of demand of dowry. To justify the

same, it has been submitted that marriage was solemnized in the Year

2004, while enjoying conjugal life, deceased had begotten two

daughters, who are staying with the appellant, would not have taken

place, had there been strained relationship amongst the spouse. So,
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 8

submitted that apart from evidence, suffering from ambiguity in the

facts and circumstances of the case, did not justify the finding having

recorded by the learned lower Court, whereupon appeal is fit to be

allowed.

10. It has further been urged that the present F.I.R. is hit

by Section 162 of the Cr.P.C. as the informant and her family

members had categorically deposed that before recording of her fard-

bayan, she had already informed the Civil Lines Police Station. That

being so, it was incumbent upon the prosecution to bring on record the

initial version wherein it failed putting doubt over its genuineness

apart from legal deficiency persisting on that score, as stated. In any

view, the totality of events did not aye the prosecution version.

11. On the other hand, while controverting the

submission made on behalf of appellant, it has been submitted that

there happens to be consistency amongst the PWs over the manner as

well as genesis of occurrence. Furthermore, it has also been submitted

that though there happens to be disclosure in the fard-bayan as well as

the witnesses also in that Civil Lines P.S. was informed, but during

course of cross-examination, neither the informant nor the I.O. were

cross-examined on that very score, at least to find out what kind of

information was given coupled with after effect. Prosecution as it

appears, played fair game by disclosing the same, but the defence
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 9

knowingly and intentionally left to cross-examine in order to avail

undue advantage. That being so, for want of an opportunity before the

witnesses at least the I.O. to enlighten the issue, appellant is precluded

to raise the issue that the present F.I.R. is hit by Section 162 of the

Cr.P.C. The appellant happens to be very much conscious as is

evident from his conduct as during course of defence, had examined

five DWs, exhibited large number of documents, then in that

circumstance, had there been some sort of legal lacuna also crept up at

the end of the police officials, the defence would have spared an

opportunity to demolish the same. In the aforesaid facts and

circumstances of the case, whatever argument has been made by the

learned counsel for the appellant relating to inadmissibility of the

present F.I.R. is not at all found entertainable.

12. It has also been submitted that there happens to be

no cross-examination at least of PW-2 and PW-3 relating to demand

as well as torturous activity having at the end of the appellant as well

as his family members. Appellant had not challenged that out of Rs.

One Lac was paid by the prosecution party by which, he got an

employment as a Teacher under Siksha Mitra. So the activity of the

appellant and his family members are found duly exposed.

13. It has also been submitted that whatever activity the

prosecution had shown relating to other co-accused in another
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 10

Sessions Trial, will not be taken into consideration in the instant trial

and so, Exhibit-A, D and Exhibit-E series have got no legal

recognition so far instant Sessions Trial is concerned.

14. Furthermore, it has also been submitted that learned

lower Court had taken into consideration the deficiency at the end of

the appellant over proving the plea of alibi as well as exposing the

deceased to be a schizophrenic patient/ suffering from mental disorder

for want of non-examination of doctor as well as considering the

evidence of DWs and that being so, adverse impact will be taken

against the appellant. Apart from this, it has also been submitted that

in worst case even accepting the plea of appellant for a moment not

admitted that deceased was mentally disordered then why the

appellant or his family members allowed her to go to cook and that

happens to be a ground which speaks a lot with regard to intention as

well as conduct of the appellant. The cumulative effect did justify the

finding having recorded by the learned lower Court.

15. For constituting an offence of a dowry death, the

following limbs are found to be duly acknowledged:-

a) The death should be within seven years of marriage,

b) The death should be by burnt or bodily injury or otherwise than

normal circumstance,

c) Soon before death, the deceased would have been subjected to

torture for fulfilment of demand of dowry,
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 11

d) Death should be at the end of husband or relative of the

husband.

The aforesaid ingredients are to be duly proved at the

end of the prosecution. If prosecution fails to substantiate any of the

ingredients, then in that circumstance, the event would not fall within

the definition of dowry death. In case, the prosecution succeeds in

substantiating the aforesaid ingredients, then in that circumstance, the

Court will have to presume it a case of dowry death as laid down

under Section 113B of the Evidence Act, subject to rebuttal. This

happens to be the basic principle while deciding a case of dowry

death.

16. Now, facts of this case is to be seen in order to

search out whether prosecution has substantiated the allegation or not.

Moreover, from the evidences available on the record, having adduced

on behalf of respective parties, admitted by respective parties, the

following facts are found out of controversy:-

a) Marriage of the deceased on 17.05.2004 and death of deceased

on 14.11.2009, that means to say, within seven years of marriage,

b) That too, by burnt.

c) Deceased sustained at her matrimonial house.

d) She was taken to hospital. However, it is not known whether

deceased died at hospital or not, for want of injury report.

Now, the remaining ingredients are to be seen in
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 12

consonance with the plea having raised on behalf of appellant.

17. Before coming to trace out whether the prosecution

has substantiated the other remaining ingredients, first of all, the legal

point having raised on behalf of appellant with regard to

maintainability of instant case is to be seen. It is needless to say that

F.I.R. has to be recorded as provided under Section 154 of the Cr.P.C.

irrespective of its nature. It is also to be noted down that for the same

occurrence version and counter-version is permissible, but two F.I.R.

are not permissible and that happens to be under the garb of Section

162 of the Cr.P.C. Though the appellant was very much

acknowledged with the facts since the date of inception of the case by

having presence of the facts in the fard-bayan that on 14.11.2009 itself

informant rushed to the Civil Lines P.S. and had informed the same,

but neither the informant PW-3, Bimla Devi was cross-examined on

that very score, at least whether she had made detailed statement

before the police with regard to commission of the cognizable offence

and in likewise manner, the appellant also failed to cross-examine

PW-5, Paras Nath Dwedi, I.O. at least on the score that during course

of investigation whether he had gone through the aforesaid disclosure

having in the written report to trace out whether the aforesaid

information led to registration of the station diary entry or substantial

case though on his side, the I.O. is totally blank. It is needless to say
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 13

that whenever a witness is not given an opportunity to explain the

circumstance, then in that event, the aforesaid plea would not be

entertainable. In Gian Chand others vs. State of Haryana reported

in 2013(4) P.L.J.R. 7 (S.C.), it has been held:-

“11. The effect of not cross-examining a witness on a

particular fact/circumstance has been dealt with and

explained by this Court in Laxmibai (Dead) Thr. L.Rs. Anr.

v. Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR 2013 SC

1204 observing as under:

“31. Furthermore, there cannot be any dispute with respect to

the settled legal proposition, that if a party wishes to raise

any doubt as regards the correctness of the statement of a

witness, the said witness must be given an opportunity to

explain his statement by drawing his attention to that part of

it, which has been objected to by the other party, as being

untrue. Without this, it is not possible to impeach his

credibility. Such a law has been advanced in view of the

statutory provisions enshrined in Section 138 of the Evidence

Act, 1872, which enable the opposite party to cross-examine a

witness as regards information tendered in evidence by him

during his initial examination in chief, and the scope of this

provision stands enlarged by Section 146 of the Evidence Act,

which permits a witness to be questioned, inter-alia, in order

to test his veracity. Thereafter, the unchallenged part of his

evidence is to be relied upon, for the reason that it is

impossible for the witness to explain or elaborate upon any
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 14

doubts as regards the same, in the absence of questions put to

him with respect to the circumstances which indicate that the

version of events provided by him, is not fit to be believed,

and the witness himself, is unworthy of credit. Thus, if a party

intends to impeach a witness, he must provide adequate

opportunity to the witness in the witness box, to give a full

and proper explanation. The same is essential to ensure fair

play and fairness in dealing with witnesses.” (Emphasis

supplied)

(See also: Ravinder Kumar Sharma v. State of Assam Ors.,

AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya

Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of

Haryana, JT 2013 (8) SC 181).”

12. The defence did not put any question to the

Investigating Officer in his cross-examination in respect of

missing chits from the bags containing the case

property/contraband articles. Thus, no grievance could be

raised by the appellants in this regard.”

18. So, on his own fault, defence would not be allowed

to raise the plea that too, at the present moment, that the instant fard-

bayan is hit by Section 162 of the Cr.P.C.

19. Now, proceeding ahead with the evidences

available on the record, it is evident that only PW-1, PW-2, PW-3 are

the material witnesses, out of whom, PW-3 is the informant, mother

of the deceased while PW-2 Ratan Kumar, is own brother. PW-1 is
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 15

the cousin brother. From the evidence of PW-1, it is evident that his

place of stay is at Dhanbad. In the aforesaid background, he had stated

that deceased Rubi Devi was married with Sanjay Kumar Gupta in the

Year 2004. She was subjected to torture at her sasural for fulfillment

of demand of dowry. Her sasuralwala was demanded Rs. One lac, out

of which, Rs.30,000/- was paid by them. The aforesaid amount was

handed over by the father of the deceased. Then had disclosed that

father-in-law Ramdeo Sao, mother-in-law Usha Devi, husband Sanjay

Kumar Gupta and brother-in-law Pawan and Niranjan were

demanding the money. Then had disclosed that on 14.11.2009, his

cousin brother had informed him that condition of Rubi Devi is

precarious. He arrived on 15.11.2009 at hospital and found Rubi Devi

dead. He had found her body was completely burnt. He had further

stated that she was burnt at her sasural. Somebody brought her and

admitted at hospital. Then had stated that because of the fact that

remaining dowry amount was not paid on account thereof, she was

done to death by burnt. During cross-examination at Para-15, that

happens to be with regard to his family affairs as well as affair of the

accused. He had further stated that he had not gone to the place where

Sanjay Kumar Gupta was employed. He was posted at village-

Simarua, P.S.-Rafiganj as a Teacher. He received information at

Dhanbad from the brother that Rubi Devi has been burnt. In Para-7,
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 16

he had admitted that he was informed that sasuralwala of Rubi Devi

had admitted her. In Para-8, he had stated that after receiving

information about the aforesaid misfortune, he came to Gaya and gone

to A.N.M.M.C.H. where he had seen dead body of Rubi Devi. He had

not seen his uncle Ramji Sao (father of the deceased). But he had seen

his aunt, brother Ratan Kumar, Vinay Kumar, Manoj and uncle Gopal

Prasad. In Para-9, there happens to be contradiction. In Para-10, he

had stated that he had made statement before the police regarding the

eventualities which he perceived. He had further denied the

suggestion that his cousin sister, Rubi Devi was mentally disordered.

He denied the suggestion that she was not at all subjected to burnt by

her husband, father-in-law, mother-in-law, brother-in-law for dowry.

He had denied the suggestion that neither dowry was ever demanded

nor she was subjected to torture. He had also denied the suggestion

that during course of cooking, she accidentally caught fire. He also

denied the suggestion that at the time of occurrence, (appellant/

husband) was not at all present at his house. He also denied the

suggestion that at the time of his arrival at the hospital neither Rubi

Devi nor her dead body was there rather the same was sent to post

mortem since before. Then had denied the suggestion at Para-11 that

it is wrong to say that the members of sasuralwala of deceased Rubi

Devi had informed regarding burn as well as having been admitted at
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 17

the hospital. Then had denied the suggestion that he had falsely

deposed.

20. PW-2 is Ratan Kumar. During his examination-in-

chief, he had stated that the deceased Rubi Devi was his sister, who

died on 14.11.2009 while staying at her sasural. She was married with

Sanjay Kumar Gupta on 17.05.2004. At the time of marriage, they

have incurred expenses appertaining to Rs.3,50,000/- (cash,

ornaments, utensils etc.). After marriage, his sister had gone to her

sasural where a demand of Rs. One lac was further made and for that,

she was subjected to torture. She used to telephonically inform them

and further, requested to have its fulfilment. The demand was being

made by Ramdeo Sah, father-in-law, Usha Devi, mother-in-law,

husband Sanjay Kumar Gupta, brother-in-law and for that, they all

frequently tortured her. In the month of May, he had gone to sasural

of his sister where she had also disclosed that accused persons were

adamant and for its procurement, she was being physically assaulted.

They have consoled her. The accused persons were saying that they

have not given Godrej, television and other items in dowry, so they

will have to pay Rs.1,00,000/-. Lastly, they anyhow managed

Rs.30,000/- and paid the same on the pretext of getting the husband an

employment. He had also stated that for the last 2-3 years, her

sasuralwala was not allowing her Bidai. Even at the time of Shradh of
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 18

his grand mother, they have not allowed her to come. On 14.11.2009

at about 3.30 p.m., he received call on his mobile that her sister had

sustained burn injury, whereupon taken to A.N.M.M.C.H. They

accordingly rushed. At the time when they reached at the

A.N.M.M.C.H., his sister was dead, her dead body was lying at

mortuary. None of her sasuralwala was present. Then they have gone

to their house. None of them were found. They absconded. Then they

returned back to A.N.M.M.C.H. They received dead body after post

mortem. They done funeral. He claimed that on account of non-

fulfilment of demand of dowry, his sister was done to death by

burning. He had further stated that police had come at Magadh

Medical College and took statement of hir mother, whereupon, he had

put his signature, identified the accused. During cross-examination at

Para-9, he had stated that accused was a Teacher on the date of death

of his sister. He used to stay at Tankuppa having a sweet shop. He

received information telephonically regarding precarious condition of

his sister, whereupon he came at A.N.M.M.C.H. on the same day at

about 6.30 p.m. He came to know that dead body was lying at

mortuary. In Para-10, he had stated that he inquired, who had

admitted his sister at hospital. On 14.11.2009, after arrival at Magadh

Medical College and even coming to know about death of his sister

and the dead body was lying at post mortem house, he had not
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 19

informed Magadh Medical Police Station. Information was given at

Civil Lines Police Station. He gave information to Civil Lines P.S.

that the accused persons have done to death his sister by burn. Police

had initiated action. He is unable to say whether police had come to

see the dead body at Magadh Medical College. In his presence, police

had not come. Inquest was prepared by Police of Magadh Medical

College Police Station. It was prepared in his presence. At that very

moment, Magadh Medical College Police had taken his statement

also. They gone to post mortem house. They received dead body and

then, after completion of funeral of dead body, they returned back to

their house. At Para-11, there happens to be cross-examination

relating to the event of funeral. Then had stated that case was

investigated by Civil Lines Police. He had further stated that he had

not informed any authority regarding torture having inflicted over the

dead body since before. At Para-12, he had stated that they after

receiving dead body have gone to the house of the accused along with

the dead body, but none was present there. Lock was hanging. Then

they returned back and then, funeral was effected. Then there happens

to be contradiction. He denied the suggestion that his sister met with

accidental fire during course of cooking. Then had denied the

suggestion that his family members had informed the police official

with regard to accidental death. Then had denied the suggestion that
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 20

after taking some time, they conspired and then, second F.I.R. was

instituted. Then had denied the suggestion that whatever allegation

has been attributed happens to be false.

21. PW-3 is the informant. She had deposed that

deceased Rubi Devi was her daughter. She has been murdered by her

sasuralwala by burn. She was married with Sanjay Kumar Gupta on

17.05.2004. At the time of marriage, she had gifted cloths, utensils,

ornament and cash appertaining to Rs.3,50,000/-. After marriage,

Rubi Devi had gone to her sasural. During course of her stay, her

sasuralwala advanced demand of Rs.One lac and for that, they began

to torture her. Rubi Devi had come to her place twice and during

course thereof, she had disclosed the event relating to demand and

torturous activity at the end of the accused persons. The accused

persons were demanding money to initiate a business. Anyhow, they

managed Rs.30,000/- and paid, whereupon his son-in-law got

employment as a Teacher under Siksha Mitra Scheme. Even then, the

members of her sasuralwala were not satisfied. They continued with

demand. On 14.11.2009 at about 3.30 p.m., her son Vinay Kumar

received an information with regard to critical condition of Rubi Devi

as she sustained burn injury and has been admitted at A.N.M.M.C.H.

Then thereafter, they have gone to A.N.M.M.C.H. where came to

know that her daughter is dead and her dead body has been kept at the
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 21

post mortem room. All the members of her sasural have fled away.

Then she had gone to Civil Lines Police Station and informed. On the

following day, police officials of Magadh Medical College came and

recorded her statement which was read over to her and finding it

correct, put her signature. Her son also put his signature. Received

dead body after post mortem. She had seen the dead body, which was

completely burnt. All the accused persons burnt the deceased on

account of non-fulfilment of demand of dowry, identified the accused.

During cross-examination at Para-6, she had admitted that she

(deceased) had begotten two daughters and they are staying along

with their grandmother. She had further stated that she had met with

members of the sasuralwala of her daughter before finalization of the

marriage. Even after marriage, her son-in-law, daughter had come to

her place twice or thrice. About six months prior to the death of her

daughter, son-in-law got employment. After employment, her son-in-

law had not come to her place. Sasural of her daughter lies at Gaya

District itself. Her son-in-law got employment at village-Simarua,

P.S. Rafiganj. In Para-7, she had stated that date on which, her

daughter met with death, her son-in-law was employed as a teacher,

but on that day, he was at his house. Her son-in-law was at his house

after taking leave. She had further admitted that she had not informed

the police at an earlier occasion with regard to torture having inflicted
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 22

upon her daughter. She had received information that her daughter has

been taken to Medical College, whereupon they came directly to

medical college where they received information regarding her death.

They informed Magadh Medical Police Station. They have informed

orally, which was scribed by the Darogaji. Dead body was received by

her after post mortem. Then thereafter, they came to Civil Lines P.S.

along with dead body. Then, they have taken the dead body to her

sasural, but none was present there. Then her funeral was done. In

Para-8, she had stated that she had not taken the dead body of her

daughter to her house. Sasuralwala of Rubi Devi had not performed

Shradh. She had got no information. Then had denied the suggestion

that her sasuralwala had performed her Shradh during course thereof,

they were informed. But they intentionally withheld themselves. After

funeral, they have gone to their house, police had not gone. In Para-9,

she had stated that her daughter was mentally fit. She was never

treated for mental illness before the marriage or after the marriage.

Then denied the suggestion that deceased was mentally abnormal on

account thereof, she was being treated by psychiatrist Dr. Laxmi

Narayan. She had further stated that she had gone to sasural of her

daughter on the eve of Chhaththi of her daughter’s daughter. Her

daughter’s daughter happens to be kid and so, she could not stay with

her. According to her information, her son-in-law had not remarried.
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 23

They have not visited sasural of her daughter after the incident. The

place happens to be locked. She is unable to say whether her husband

or son had talked with sasuralwala of her daughter or co-villagers

after the occurrence. Then had denied the suggestion at Para-10 that it

is wrong to say that at the time of burning, her daughter was alone.

She vehemently opposed and said that all the family members of her

sasuralwala were present. Then had denied the suggestion that her

son-in-law as well as they themselves were informed by villagers

through mobile. Then had denied the suggestion that her daughter was

not set ablaze by the accused persons, rather she fallen victim of an

accident of fire. Then had denied the suggestion that after concealing

the real fact, they have deposed falsely.

22. PW-4 is the doctor, who had found the death of

deceased on account of ante-mortem burn injury. Because of the fact

that cause of death happens to be out of controversy on account

thereof, its detail discussion is forbidden.

23. PW-5 is the Investigating Officer, who had

deposed that he was posted as A.S.I. on 15.11.2009 at Civil Lines

Police Station. After having been entrusted with the investigation of

the Civil Lines P.S. Case No.353 of 2009 by the Officer-in-Charge, he

took up the same and during course thereof, gone through the fard-

bayan. He recorded further statement of the informant. He had
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 24

recorded statement of Ratan Kumar, Parag Anand. He had seen the

place of occurrence as pointed out by the informant, which happens to

be double storey house of Sanjay Kumar Gupta lying at Mohalla-

Narayani Maipur, Gautam Chowk of the accused. Then had gone

inside the house, whereupon the detail physical feature of the house.

Also shown its boundary. Then, he had taken statement of the

witnesses, received post mortem. As accused Sanjay Kumar Gupta

had surrendered on 27.01.2010, on account thereof, he had submitted

chargesheet after completing the investigation keeping investigation

pending against others. Exhibited the relevant document (fard-bayan,

inquest report etc.). During cross-examination at Para-5, he had stated

that after completing investigation against other co-accused, he had

submitted final form. In Para-6, he had stated that he had not found

any kind of objectionable material at the P.O. Then, his attention has

been drawn towards statement of Anil Kumar, cross-examination over

recording of statement of Anil Kumar, Yedunath @ Gautam,

Sabender Kumar, Bihari Lal, Devendra Prasad, Chandragupt Kumar,

Shiv Narayan, Vishwanath and Sanjay singh, whose house happens to

be near about place of occurrence. At Para-7, he had stated that he got

information from the District Magistrate Aurangabad that accused

happens to be Teacher deployed at Rafiganj. Then contradiction

relating to witnesses PW-1, Parag Anand has been drawn up and in
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 25

likewise manner, under Para-8 regarding witness Ratan Kumar (which

appears to be minor).

24. DW-1 had stated that on 14.11.2009, he had come

to the place of his uncle, house was open. It was 2.00 p.m. When he

gone inside the room, he had seen fire. Wife of Sanjay Kumar Gupta

was burning. There was gas leak, whereupon fire had broken. He tried

to extinguish the fire. Then thereafter, called tempo and took her to

medical college. During course of treatment, she died. At that very

time, two kids were inside the house. His uncle Ramdeo had gone to

Bhagalpur to attend meeting. Sanjay, who was Teacher at Simarua,

P.S.-Rafiganj, had gone there. No other male member was present.

Brother had also gone on his work. Deceased burnt on her own.

Accused is innocent and falsely been implicated. During cross-

examination at Para-3, he had stated that for the last three years, he is

staying at Tekari having a photo copy shop before that, he was staying

at Mau. He had also stated that Ramdeo happens to be his own uncle.

In Para-5, he had stated that at the time of occurrence, at least 8-10

persons have arrived, but he is unable to identify. In Para-6, he had

stated that he had extinguished the fire and during course thereof, his

hands had also burnt, but he had not treated for the same. He had not

informed anybody, after death, he had informed. Death occurred in

between 2.00-2.30 p.m. During course of funeral, he was present. But
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 26

he is unable to say the exact date. No other accused was present at the

time of funeral. Then had stated that Gautam was along with him

while lifting her to hospital over tempo. At about 2.30 p.m. deceased

died, whereupon police came and lifted the dead body to post mortem

house. Police of Magadh Medical College P.S. had come. He had not

made any kind of statement before the police. Then thereafter, he

returned back along with Gautam. Then had disclosed that whole

body of deceased, wife of Sanjay Kumar Gupta was not burnt rather

her face, chest were completely burnt, hands were slightly burnt.

25. DW-2 is Jagannath Gautam. He had deposed that

accused Sanjay Gupta happens to be his cousin brother. His wife died

on account of gas leaked during course of cooking. Occurrence is of

dated 14.11.2009. He had come to Gaya. He along with Anil Kumar

Gupta had come to meet. He had gone inside the house and raised

alarm, door was closed. There was no response, whereupon they have

gone inside and had seen children were weeping, Rubi Devi was lying

in kitchen, was groaning, there was flame over her cloth. He along

with Anil extinguished the fire and then, called auto and then, taken

her to Magadh Medical College where she was admitted. He

telephoned Niranjan and informed regarding the occurrence. After 3-4

hours, she died. At that very time, no male person of her family

members was there. Sanjay Gupta was at his School. Neither his
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 27

brother nor nephew were present. Only two daughters of deceased

aged about 2-3 years as well as four months were present. He made

statement before the police. During cross-examination, he had stated

that he is unable to disclose the ancestral house of the accused. Then

had disclosed his ancestral house at village-Ket. In Para-4, he had

stated that he had not met with police at Medical College at the time

of treatment. Only he along with Anil Kumar was present at the time

of death of Rubi Devi. He was present at the hospital. After half an

hour of death of Rubi Devi, family members of Sanjay Kumar Gupta

came. He had not gone to inform the police. He is unable to say

whether the family members of Rubi had gone to police station or

they had participated in the funeral of Rubi Devi. At that very

occasion, Sanjay Kumar, Pawan Kumar, Niranjan Kumar and others

have also participated. Funeral took place on 15.11.2009 at about 9-10

a.m. His statement was recorded after funeral. At that very time,

neither Sanjay Gupta nor his family members were present at his

house. He had not shown his burnt hands to police. Then had stated

that he along with Anil Gupta took the deceased to the hospital over

tempo and during course thereof, he had not talked to anybody. At

Para-5, he had stated that even after death of Rubi Devi, he remained

there. He had gone to his place after funeral. At Para-6, he had further

stated that Maikawala of Rubi Devi had also come on the date of
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 28

occurrence at the hospital and on same day, they have instituted case

at Civil Lines, which he knew. In Para-7, he had stated that police had

come at noon. He was not present at the time of statement. He had

given statement before the police. On the following day, he came to

know regarding institution of the case. At Para-8, he had further stated

that police came at the hospital, at that very time, family members of

Rubi Devi were not present. In Para-10, he had stated that he had

stayed at the house of Sanjay Kumar Gupta for half an hour. During

midst thereof, his family members as well as neighbours came there.

In Para-11, he had stated that he had tried to extinguish the fire.

During course thereof, his hands as well as hands of Anil Kumar

Gupta also burnt, but they have not treated.

26. DW-3 is the Principal of Simarua School, who had

deposed that Sanjay Kumar Gupta was Teacher of her school in the

Year 2009. On 14th, November, there happens to be Children’s Day,

5th September, there happens to be Teacher’s day, on which day

programmes were being organized for the children. Programme of

eight schools were organized together, which was performed at

Vishambharpur School, but again corrected as she independently

organized for her own school and during course thereof, Sanjay

Kumar Gupta was present. She had also brought the attendance

register and exhibited the same wherein at Page No.21 dated
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 29

14.11.2009, there happens to be signature of Sanjay Kumar Gupta

(exhibited). In Para-2, she had deposed that she happens to be

Principal since the Year 2007, but she is unable to say from which

date, Sanjay Kumar Gupta was deployed, but after her joining. Then

was cross-examined with regard to organization of the programme on

the specified date consisting of eight schools and for that, she was

informed by the department wherein the school teachers, students

participated. On that day, no teaching was being performed. Then had

shown her inability to say, how much time Sanjay Kumar Gupta

remained at the school. Then at Para-3 had disclosed that Sanjay

Kumar Gupta continued to attend for a fortnight and for that, she also

shown the attendance register. Then had shown inability whether

Sanjay Gupta took Casual Leave or not after the month of November,

2009. Then had stated that on being noticed to depose, she came to

know that Sanjay Kumar Gupta happens to be an accused relating to

an offence whereunder his wife has been murdered.

27. DW-4 had deposed that he knew wife of Sanjay

Kumar Gupta, who was coming mentally ill since before. Then had

specifically stated that she was ill since before marriage. She was

treated by the Dr. Laxmi Narayan for about two years and then, had

exhibited the prescription.

Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 30

28. DW-5 Vinay Kumar Gupta, one of the sons of

informant (PW-3), had exhibited compromise petition as well as the

subsequent event whereunder other co-accused have been acquitted

relating to different Sessions Trial as they were prosecuted later on, as

witnesses became hostile in the background of compromise.

29. As stated above, there happens to be no denial at the

end of the accused/ appellant that deceased had not sustained burnt

injury. DW-1, 2 have been produced to depose that accidental fire

broken on account of leakage of gas as well as during course of

extinguishment of the fire, they have also sustained burnt injury over

their hands, but it is not at all found corroborated by the any

suggestive evidence as they have themselves disclosed that they have

not got their burnt hands treated. Be that as it may, there happens to

be specific disclosure at their end that fire broken out on account of

gas leaking, there was flame, deceased was lying. While I.O. visited

the P.O., nothing was found there, that means to say, the gas cylinder,

gas stove, any utensil. None of the witnesses DW-1 and DW-2

spoken, how they had been able to extinguish the fire that means to

say, gas stove that means to say, whether they been able to close the

knob of the gas cylinder, who removed the gas cylinder, who removed

the gas stove, there was no sign of flame over ground as well as over

wall, so actually kitchen happens to be the place of occurrence,
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 31

became doubtful. Furthermore, neither name of the tempo driver nor

registration number has been disclosed. The most ridiculous part

appears to be, when there happens to be cross-examination of the I.O.

over the scene of occurrence as no objectionable items were found

during course of inspection of the P.O. Whether that part goes in

favour of accused/ appellant or against the accused/ appellant. Had

there been house of the accused to be the actual place of occurrence,

there would have been ample sign.

30. Now, coming to remaining aspect, it is evident that

there happens to be consistent evidence at the end of PW-2 and PW-3

that there was demand of Rs. One lac and for that, she was being

tortured. Though the evidence happens to be suffering from some

ambiguity, but they have not denied or confronted or suggested that

Rs.30,000/- out of one lac was not at all paid by the prosecution party

and on the basis thereof, appellant got employment under Siksha

Mitra that means to say, the aforesaid part also not controverted

against the defence. In Bachni Devi and another v. State of Haryana

through Secretary, Home Department reported in A.I.R. 2011 SC

1098, it has been held:-

“17. Learned counsel for the appellants heavily relied upon

the following observations made by this Court in the case
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 32

of Appasaheb (AIR 2007 SC 763):

“A demand for money on account of some financial

stringency or for meeting some urgent domestic expenses

or for purchasing manure cannot be termed as a demand

for dowry as the said word is normally understood”.

The above observations of this Court must be

understood in the context of the case. That was a case

wherein the prosecution evidence did not show `any

demand for dowry’ as defined in Section 2 of the 1961 Act.

The allegation to the effect that the deceased was asked to

bring money for domestic expenses and for purchasing

manure in the facts of the case was not found sufficient to

be covered by the `demand for dowry’. Appasaheb (AIR

2007 SC 763) cannot be read to be laying down an

absolute proposition that a demand for money or some

property or valuable security on account of some business

or financial requirement could not be termed as `demand

for dowry’. It was in the facts of the case that it was held

so. If a demand for property or valuable security, directly

or indirectly, has a nexus with marriage, in our opinion,

such demand would constitute `demand for dowry’; the

cause or reason for such demand being immaterial.”

That means to say, any demand which originate or is

connected with the marriage will cover the definition of dowry. That

being so, the evidence whatever been at the end of the prosecution is
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 33

found duly satisfying the definition of the dowry.

31. Now, coming on the score of alibi, it is evident that

PW-3 could not be able to substantiate the same rather she had, during

course of cross-examination, stated that she is unable to say from

which time to which time Sanjay Kumar Gupta remained present at

her school. On the day of occurrence, teaching was not going on.

Furthermore, collusiveness of the DW-3 is found very much exposed

as the students of the school were to take part along with students of

the eight other schools as directed by the Education Department, but

she had also stated that she organized independently for her own

school and the same is not found at all substantiated by any cogent

and reliable evidence. That being so, the plea of alibi having raised on

behalf of appellant is found shaky and could not satisfy its reliability.

The adverse inference is to be that presence of appellant at the place

of occurrence.

32. Furthermore, being an offence non-compoundable,

the evidence of DW-5 is not going to give any kind of additional help

to the appellant. In likewise manner, the conduct of the prosecution

witnesses relating to other trial, relating to co-accused will also not

give any lifeline to the appellant.

33. That being so, the finding recorded by the learned
Patna High Court CR. APP (SJ) No.604 of 2015 dt.03-07-2018 34

lower Court did not attract interference. Consequent thereupon, this

appeal sans merit and is accordingly, dismissed. The appellant had

been sentenced to undergo for a period of nine years, which is reduced

to seven years considering the admitted fact that two kids are along

with his family. Appellant is on bail, hence his bail bonds is cancelled

directing him to surrender before the learned lower Court within

fortnight to serve out the remaining part of sentence, failing which the

learned lower Court will be at liberty to proceed against the appellant

in accordance with law.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 09.07.2018
Transmission 09.07.2018
Date