—
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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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