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Yogendra Singh vs The State Of Bihar on 21 August, 2023

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.198 of 2019
Arising Out of PS. Case No.-64 Year-1999 Thana- RAMPUR CHAURAM District-
Jehanabad

Yogendra Singh, Son of Late Ramashray Singh, Resident of Village-Dhorhan,
Police Station-Rampur Chauram, District-Arwal

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Ms. Roona, Adv.
For the State : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 21-08-2023

Heard Ms. Roona for the appellant and Mr.

Sujit Kumar Singh for the State.

2. This appeal is directed against the

judgment and order of conviction and sentence dated

09.01.2019 and 10.01.2019 respectively, passed by

the learned Fast Track Court No. 1, Jehanabad in
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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Sessions Trial Nos. 35 of 2001/285 of 2017, arising

out of Rampur Chauram (Arwal) P.S. Case No. 64 of

1999, whereby the appellant has been convicted under

Sections 302 and 201 of the I.P.C. and has been

sentenced to undergo R.I. for life, to pay a fine of Rs.

5000/- and in default of payment of fine, to further

suffer R.I. for three months for the offence under

Section 302 of the I.P.C. and to undergo R.I. for three

years, to pay a fine of Rs. 3000/- and in default of

payment of fine, to further suffer R.I. for three months

for the offence under Section 201 of the I.P.C. The

sentences have been ordered to run concurrently.

3. The appellant is the husband of the

deceased.

4. According to the prosecution case lodged

by the father of the deceased, namely, Kedar Singh,

who has been examined as P.W. 4 at the trial, the

deceased was married to the appellant seven years

ago. During the subsistence of this marriage, the
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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appellant is alleged to have married another person.

He has alleged that the deceased was ill-treated in her

matrimonial home.

5. In this context, a reference has been

made about a bond executed by the appellant and his

family members on 28.03.1999.

6. On 18.05.1999, one Baikunth Singh

(P.W. 2) informed the father of the deceased (P.W. 4)

that his daughter (deceased) is missing since

09.05.1999. On such information, P.W. 4 visited the

matrimonial home of the deceased, but did not find his

daughter. His son-in-law, i.e., the appellant and his

father did not give any information regarding the

whereabouts of his daughter. He, therefore, suspected

that his daughter has been taken to some unknown

destination.

7. On the basis of the afore-noted written

report, referred to above, a case vide Rampur Chauram

(Arwal) P.S. Case No. 64 of 1999, dated 27.05.1999,
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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was registered for investigation for the offences under

Sections 498(A), 364, 494 and 34 of the I.P.C.

8. In the aforesaid case, only three persons

were made accused, namely, the appellant, his father

and the sister of the appellant.

9. The police submitted charge-sheet

against all the three accused persons, whereupon

cognizance was taken and the case was committed to

the Court of Sessions for trial.

10. During the pendency of the trial, the

father of the appellant died and, therefore, the case

against him was dropped.

11. A supplementary case record was

initiated and the person with whom the appellant is said

to have contracted marriage during the subsistence of

the marriage with the deceased, was also put on trial,

who has since been acquitted.

12. It may be noted that during the course

of investigation, a dead-body was recovered from near
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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the banks of river Punpun, which was identified to be

that of the deceased and, hence, Section 302 I.P.C.

was added.

13. The sole appellant before this Court was

charged for the offence of murder and of screening the

offence punishable under Sections 302 and 201 of the

I.P.C. respectively.

14. The Trial Court, after having examined

five witnesses on behalf of the prosecution including

the mother of the appellant, convicted and sentenced

the appellant as aforesaid.

15. Ms. Roona, the learned Advocate for the

appellant has submitted that in this case, neither the

Doctor nor the Investigating Officer have been

examined and, therefore, the appellant has been

severely prejudiced as he could not bring to the fore

the falsity of the prosecution evidence. Apart from

this, it has been urged that the identification of a dead-

body to be that of the deceased of this case is highly
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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doubtful. A skeleton was identified by the prosecution

witnesses. The post-mortem report also does not

inspire confidence. The skeleton had no muscles

attached to it. The face was totally unidentifiable.

16. These facts, Ms. Roona argues, have

not been rebutted during the trial but on the contrary

affirmed by the prosecution witnesses. The manner in

which the dead-body was identified by the witnesses

also appears to be absolutely doubtful. Some of the

witnesses have identified the deceased by the bangles

and the clothes that she was wearing.

17. There is nothing on record, it has

further been argued that the dead-body which was

recovered and was made to be identified by the

witnesses had any clothes on it. It is the consistent

evidence collected by the prosecution that what was

recovered was almost a skeleton, which was identified

by the witnesses. In fact, P.W. 4 did not even see the

skeleton himself, but claims to have identified it on the
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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basis of photographs which was shown to him.

18. Lastly, it has been submitted that the

deceased had an unstable mind and every time she

used to run away from her matrimonial home to her

parental home. On this occasion also, she had

disappeared from her matrimonial home but never

reached her parental home. These facts were known to

the prosecution witnesses, but on a wrong advice, the

instant case was filed.

19. Mr. Sujit Kumar Singh, the learned

counsel for the State, on the other hand, has submitted

that even assuming the proposition put forth by the

appellant that the deceased came out of her

matrimonial home, never to be found again, is accepted

to be true, no missing report has been lodged by the

appellant, who is the husband of the deceased. He

further submits that the deceased was subjected to

cruelty. Precisely for this reason, case was instituted

under Section 498A of the I.P.C. also along with other
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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sections of the I.P.C. Admittedly, the appellant

married another lady during the subsistence of this

marriage and in front of the respectable persons of the

village, a bond also was executed (we have no idea

about the contents of the bond or the promise made by

the appellant).

20. The learned counsel for the State,

therefore, urges that this bond must have been for

good conduct of the appellant and a promise not to ill-

treat the deceased. Additionally, it has been argued

that it was the husband of the deceased who was

required to explain as to where had she gone if she was

not dead.

21. As noted above and as a sequitur to his

earlier argument, Mr. Singh has raised the point that

there is nothing on record to indicate that any

complaint was made either by the appellant or his

father while she was surviving about the victim having

disappeared from her marital home. That the father of
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the deceased also was never informed about such

disappearance, is also confirmed by the fact that the

case was lodged after a long time of the deceased

having disappeared from her house. This information

also was given to P.W. 4 by P.W. 2, who is only

remotely related to P.W. 4.

22. In order to test the correctness of the

proposition put forth by the prosecution, we have

examined the deposition of P.W. 4 in detail. As noted

above, he is the father of the deceased, who affirms

the fact that the appellant had married another person

during the subsistence of this marriage. He has also

talked about the bond, which was executed by the

appellant for keeping the deceased in her matrimonial

home with dignity and honour. Notwithstanding the

execution of the afore-noted bond, P.W. 4 has asserted

that the deceased was ill-treated in her matrimonial

home. He received information from P.W. 2 that the

deceased was not be found in her matrimonial home
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since 09.05.1999. He had looked for his daughter at

all places, but only when he could not get any clue

regarding her whereabouts, he lodged the instant case.

After lodging of the case, he was informed that the

police party of Karpi Police Station has recovered a

dead-body from Punpun river. On this information, he

visited Karpi (Punpun) Police Station, where he was

made to see the photograph of the dead body and the

clothes. He could identify with the clothes that the

dead-body was of Sushma (deceased). He had not

made any statement before the police after getting his

F.I.R. recorded. He has also denied that his daughter

was mentally unstable but because of ill-treatment, she

had temporarily lost her mental balance. Within six to

seven months of the marriage of the deceased with the

appellant, the appellant had married again. In the

meantime, the deceased did not bear any child from

the wedlock for which she was taken to a doctor for

treatment. The doctor had diagnosed some congenital
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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defect in the stomach.

23. In the cross-examination, the afore-

noted witness has stated that after four to five months

of the marriage, the victim became trace-less. This

obviously appears to be some kind of misconception on

the part of P.W. 4 as the deceased was married to the

appellant about seven years ago and the disappearance

of the deceased was reported only on 09.05.1999. He

waited for about eight days for lodging the case after

knowing about the disappearance of the deceased.

During his cross-examination, he has admitted that he

did not see the dead-body himself, but had only

identified by means of photograph in which the face

was very visible.

24. The suggestion to him that it was only

a skeleton was denied.

25. Very surprisingly, the mother of the

appellant has been cited and examined as a prosecution

witness No. 5. She has said before the Trial Court that
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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the deceased had gone out of the house for attending

to the call of nature, but she never returned. An

attempt was made to locate her, but it yielded no

result. She has also confirmed that her daughter-in-

law was mentally weak. She further confessed that till

date, i.e., till the date of her deposition before the Trial

Court, she could not know the whereabouts of her

daughter-in-law.

26. Similar statement has been made by

Baikunth Singh (P.W. 2) and Bhagwan Singh (P.W.1),

both of whom have testified to the fact that the

appellant had married another person and the deceased

was ill-treated in her matrimonial home. However,

none of these witnesses have said anything which

would indicate that they had any information about the

deceased having been killed at the hands of the

appellant.

27. The cousin of the deceased, namely,

Nagdeo Singh (P.W. 3) has categorically stated in his
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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cross-examination that the photograph of the

deceased, which was shown, was only of skeleton and

that the identification was only on the basis of clothes.

28. From the inquest as well as post-

mortem report, it appears that the dead-body which

was recovered was attempted to be burnt. The hairs of

the body was found to be partially singed. No such

accusation has been levelled against the appellant. As

noted above, the charge against the appellant is only

under Sections 302/201 of the I.P.C.

29. With the non-examination of the I.O. as

also the Doctor, there is no way in which it could be

discerned as to how the dead-body was recovered; the

reason for intimating the prosecution witnesses for

identifying the dead-body; whether post-mortem could

have been conducted on such muscle-less skeleton,

which was recovered from Punpun river, so on and so

forth.

30. There is force in the submission of the
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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learned counsel for the appellant that in the present

case, non-examination of I.O. and the Doctor has

caused severe prejudice to the appellant, who only

could have unravelled the circumstance under which

the investigation proceeded when a dead-body from the

Punpun river was recovered. Whether the house of the

appellant was searched was also necessarily to be

known for confirming that the so-called dead-body was

that of the deceased. There are traces of the

recovered dead-body having been burnt, which is not

the allegation in the present case.

31. After all, if the deceased did not die and

the identification of the dead-body to be that of the

deceased of this case is incorrect, where did the

deceased go?

32. We have given our anxious

consideration to this aspect of the matter for there is

complete absence of any explanation on the part of the

appellant regarding the deceased having gone missing
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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from the house. A husband is required to protect his

wife. If she was not to be found in home, there were

some necessary steps which were required to be taken

by the appellant. The records do not indicate any such

step having been taken by the appellant. Could then, it

be inferred that the deceased was done to death and

the dead-body was thrown somewhere, perhaps, in

Punpun river. For that also, the evidence had to be

collected, which could have completed the chain.

33. The I.O. of this case, as noted above,

has not been examined.

34. We have found the identification of the

dead-body of the person so recovered to be that of the

deceased. It is impossible to identify by the

photograph of a skeleton like dead-body, when most of

the witnesses have confirmed during the trial that the

face was absolutely unidentifiable. With that kind of

dead-body in possession of the police, the death must

have occurred long time ago. The time of death of the
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so-called dead-body recovered does not match with the

prosecution version.

35. In this context, in view of the specific

charge of murder and of screening the offence saddled

on the appellant, even the provisions contained in

Section 106 of the Evidence Act would be of no avail to

the prosecution.

36. Section 106 of the Evidence Act

provides that when any fact is essentially within the

knowledge of any person, the burden of proving that

fact is upon him.

37. There is no allegation or charge of the

deceased having died in the house of the appellant.

Only under such circumstance, would the requirement

under Section 106 of the Evidence Act be triggered.

The case of the defense consistently has been that the

wife of the appellant had come out of her matrimonial

home and never reached her destination, which was,

perhaps, her parental home. In such a situation, in the
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absence of the prosecution having done its part of

proving the case beyond all reasonable doubts, there

could be no question of reading the provisions under

Section 106 of the Evidence Act as being akin to the

proposition of “reverse burden”. That would amount to

rewriting the criminal jurisprudence. All that the

appellant can be charged for is that he has shown

carelessness and callousness in not taking steps for

recovering or locating his wife. That the deceased was

ill-treated in her home has been spoken about by the

witnesses. The fact which has not been denied that the

appellant married another lady during the subsistence

of his marriage with the deceased, further confirms

that the relationship between the spouses were not

cordial. However, no case having been lodged either

by the wife of the appellant or P.W. 4 or any one of

her relatives, reflects that the cold relationship between

the husband and the wife was accepted as a fait

accompli.

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38. There is reference of a bond executed

by the appellant. According to P.W. 4, the bond was

for keeping the wife of the appellant with dignity in her

marital home. This bond was executed after the

appellant had married the other person. Was it an

aquiescence or was it helplessness in reacting to the

situation? In either case, the deceased/wife of the

appellant would be presumed to have stayed in her

matrimonial home.

39. It is really strange that the appellant

has not been able to satisfy the Trial Court about the

location of his wife, but in the absence of any charge

against him for any offence which would otherwise

have been attracted for this, there is no way in which

the judgment and order of conviction of the appellant

for the offence under Sections 302/201 of the I.P.C.

can be sustained.

40. We say so, we repeat, for the reason of

the identification of the skeleton like dead-body being
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doubtful, especially when the identification was by

looking at the photograph of such dead-body.

41. Thus, giving benefit of doubt to the

appellant, we set aside the judgment of conviction

dated 09.01.2019 and the consequent order of

sentence dated 10.01.2019 passed by the learned Fast

Track Court No. 1, Jehanabad in Sessions Trial Nos. 35

of 2001/285 of 2017, arising out of Rampur Chauram

(Arwal) P.S. Case No. 64 of 1999.

42. The appellant is acquitted of the

charges levelled against him.

43. The appellant/Yogendra Singh is in

custody. He is directed to be set at liberty forthwith

unless his detention is required in any other case.

44. The appeal stands allowed.

45. Let a copy of this judgment be

dispatched to the Superintendent of the concerned Jail

forthwith for compliance and record.

46. The records of this case be returned to
Patna High Court CR. APP (DB) No.198 of 2019 dt.21-08-2023
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the Trial Court forthwith.

47. Interlocutory application/s, if any, also

stand disposed off accordingly.

(Ashutosh Kumar, J)

(Partha Sarthy, J)

Praveen-II/Avinash

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 25.08.2023
Transmission Date 25.08.2023

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