CRIMINAL APPEAL No.380 OF 1989 Against the judgment of conviction and order of sentence dated 4th July 1989 passed by Sessions Judge, Vaishali at Hajipur, in Sessions Trial No. 66 of 1988 arising out of Rajapakar P.S. Case No. 41 of 1987. Ram Balak Rai, son of Late Jitan Rai, resident of village – Rajapakar, P.S. – Rajapakar, District – Vaishali. ----- Appellant. Versus The State of Bihar. ---------- Opposite Party. ****** For the Appellant : Shri Chittranjan Sinha, Sr. Adv. Shri Uday Shamkar Sharan Singh, Adv. Shri Sanjay Kumar Singh, Adv. Shri Krishna Narayan Jha, Adv. For the State : Ms. Shashi Bala Verma, APP. ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ****** Akhilesh Chandra, J. The sole appellant Ram Balak Rai has preferred this appeal against order of conviction under sections 302 and201 of the Indian Penal Code and sentence respectively to undergo rigorous imprisonment for life and rigorous imprisonment for two years awarded by learned Sessions Judge, Vaishali at Hajipur, on 4th July 1989 in Sessions Trial No. 68 of 1988 arising out of Rajapakar P.S. Case No. 41 of 1987. The appellant besides four others was charged under section 304(B)/34 of the Indian Penal Code for allegedly committing dowry death of his wife Indu Devi on 18th April 1987, besides they were further charged under section 302/201/34 of the Indian Penal Code for committing her murder and screening of the evidence. 2 2. The prosecution case as reveal from Exhibit 2, the fardbeyan of Sakal Deo Rai (P.W. 1) recorded by Sri Neelam Kumar Singh (P.W.3) Inspector-in-charge of Town Police Station, Hazipur (Ext. 3) on 19.04.1987 at 8.10 P.M., is that at about 8.10 P.M. in presence of Chandrika Roy (P.W.6), Nand Lal Rai (P.W.4) and Jagannath Rai and Jag Narain Rai (both not examined) is that Indu Devi (deceased) aged 25 years, daughter of the informant was married with the appellant five years ago during negotiation father of the appellant (accused died before the commencement of the trial) had a demand of Rs. 25,000/-, anyhow only Rs. 15,000/- could be paid, but for remaining Rs. 10,000/- there was consistent demand and torture caused to his daughter by both father and son. She was regularly assaulted and ill-treated. At about 12.00 noon on 19.04.1987 (Sunday), the informant received a message from Chaterbhuj Prasad (P.W.5) to contact him and when in response the duo meet in the market, informant was told that his daughter is missing from her Sasural along with her husband, the appellant, and father-in-law raising a doubt that his daughter might have been killed. On getting such information, the informant went to the house of the appellant but found none of three and the female inmates failed to reply satisfactorily. The informant could be able to learn that either his daughter has been killed or abducted for said purpose, but due to fear he did not approach the nearest police station Rajapakar, but returned to Hajipur, where his statement was 3 recorded and forwarded to concerned Police Station Rajapakar. Where on the basis of Ext.2, formal First Information Report, bearing Rajapakar Police Station Case No. 41 of 1987 was instituted at 1.00 A.M. on 20.04.1987 under sections 302/201/34 of the Indian Penal Code and ¾ of the Dowry Prohibition Act. Immediately, after institution of the case, investigation proceeded and in the morning, dead body of the deceased was recovered from the custody of appellant and his father who made an unsuccessful attempt to escape in a field at village Kanhauli Bishunpur Parti Garhwal, P.S. – Mahua. Inquest report was prepared, body was sent for post mortem examination and subsequently after completion of investigation charge sheet was submitted, cognizance was taken and case was committed to the court of sessions, where the trial proceeded in the manner as aforesaid. On the pleading of the accused persons including the appellant not guilty and claiming to be tried. 3. The prosecution has examined altogether seven witnesses out of whom Sakal Deo Rai (P.W.1) is the informant, Dr. Sakal Kumar Sinha (P.W.2) conducted the post mortem examination of the dead body of the deceased proved post mortem report (Ext. 1), Neelam Kumar Sinha (P.W.3) is a formal witness who proved Ext.2 the fardbeyan and Ext. 2/1, forwarding to Rajapakar Police Station. Nand Lal Rai (P.W.4) is also a formal witness proved Ext. 2/2, his signature on fardbeyan. Chaterbhuj Prasad (P.W.5) since did not supported 4 the prosecution case declared hostile. Chandrika Rai (P.W.6) is also a formal witness proved his signature on fardbeyan Ext.2/3 and other witnesses Jagannath Rai and Jag Narain Rai Ext.2/4 and Ext.2/5. Md. Muiddin Rahim (P.W.6) is the Investigating Officer proved formal First Information Report (Ext.3), inquest report Ext.4, Challan for post mortem examination Ext.5 and on completion of investigation submitted charge sheet. 4. The defence has also examined three witnesses. Dhanu Rai (D.W.1), Raj Narayan Singh (D.W.2) and Ram Bilash Ray (D.W.3) to show that deceased met an accidental death by burn injuries caused to her in spite of taking all care and caution while she was preparing meal. 5. On consideration of the above materials, the trial court hold the appellant, being husband, guilty of committing murder of the deceased and making attempt to screen his guilt, but acquitted other co-accused finding nothing against them. Now, it is to be seen in this appeal, whether the prosecution has been able to substantiate the charges against the appellant beyond any shadow of reasonable doubt or finding of the court below needs any interference. 6. At the outset, it is crystal clear that the instant case is materially based on only one witness, P.W.1 i.e. father of the deceased, who in his statement has stated that roughly five years before his daughter Indu Devi (deceased) was married with the appellant. Appellant’s father (Died) had demand of Rs. 5 20,000/- anyhow marriage could be performed on payment of Rs. 15,000/-, remaining one payment was due for which there was consistent demand. His daughter was being tortured and also he was deprived of meeting with her. On Saturday, his daughter was assaulted by her in-laws and some where misplaced on the following day i.e. Sunday. P.W.5 a teacher, informed him, he went and met with him and at his instance he proceeded to the house of appellant, where do not find his daughter, son-in-law or father-in-law of his daughter, but could get information that she has been killed and dead body has been misplaced. By dint of fear, he did not went to Police Station rather returned to his house from where he along with others went to Superintendent of Police, Vaishali, at whose instance fardbeyan was recorded by Inspector, Town Police Station, Vaishali. At 8.00 P.M. on Sunday, in presence of P.Ws. 4, 6 and 1. Narayan Rai (not examined) his fardbeyan was forwarded to Rajapakar Police Station, where he went with the police personnel, where the case was instituted and investigation started. This witness accompanied the Investigating Officer who got information that dead body has been taken towards north. During search, the police party arrived in village Kanhauli where a boy namely Anil (not examined) given some clue, police party arrived near the land adjacent to Bamboo clumps, found the dead body lying on a cot, where appellant and his father besides others were present. But tried to escape on arrival of the police who chased 6 and apprehended the appellant and his father. The dead body sustained burn injury right from knee to neck coming smell of kerosene oil and besides the above something was penetrated in her chest. Head was also injured. It could be transpired that she has been assaulted and killed by fire. Father of the appellant died in custody. In cross examination he asserts that roughly 20-25 days after marriage his daughter returned to his place where remained for two years, but her husband, the appellant, never visited during her stay with the informant. Further he stick on the point of demand etc. and mediation by Chaterbhuj Rai (P.W. 5) who has been declared hostile. He has denied suggestion that his daughter, the deceased, died during preparation of meal and when she caught fire in order to meet attempts to escape she sustained other injuries. He further denied the suggestion that she was not assaulted rather for treatment she was brought to Kanhauli at place of doctor and the informant was informed about such happenings but he started demanding cloths, ornaments of the deceased, on refusal in collusion with P.W.5 got this false case instituted and neither there was any demand nor payment of dowry at the time of marriage of the appellant with the deceased. The other witnesses like Neelam Kumar Singh (P.W.3), the Inspector of Police, recorded fardbeyan and forwarded the same to the concerned police station. Nand Lal Rai (P.W.4) and Chandrika Rai (P.W.6) are witnessed to fardbeyan, there is nothing more in their evidence. P.W.5 denied playing role of mediator in the 7 marriage of deceased with the appellant and giving any information to the informant, he was declared hostile. There is also nothing in his evidence for consideration. 7. Md. Muiddin Rahim (P.W.7) an Investigating Officer, on institution of the formal First Information Report (Ext.3) provided for investigation, recorded further statement of the informant, investigated the place of occurrence i.e. the house of appellant in village Rajapakar, after making arrangement for sufficient light found nothing noticeable proceeded to village Milanpur found one Anil Rai coming from village Kanhauli, on getting some clue from him proceeded to village Kanhauli, where dead body was found. The informant accompanied him who identified the body there, appellant and his father were also present and apprehended in spite of their unsuccessful attempt to escape. He prepared inquest report (Ext.4) through A.S.I. Jagjivan Ram and also issued Challan (Ext.5) for post mortem examination, apprehended the appellant and his father and subsequently submitted charge sheet. Here, it could be not out of place to mention that in cross examination of P.W.1 there was one ignorable improvement (contradiction) as regard to which his attention was drawn is that in his statement under section 161 of the Code of Criminal Procedure he had not sent to the Investigating Officer (P.W.7) as evident from para 6 that he was not permitted to meet his daughter. 8. From the evidence of P.W.1 and P.W.7 i.e. the 8 informant and Investigating Officer, it is crystal clear that right from Sunday i.e. 19.04.1987, the informant was in search of his daughter who could be found dead in the next morning i.e. 20.04.1987 sustaining some sort of injuries including burn injury and appellant and his father besides others were there in a different village far from place of occurrence village. Relationship between the parties etc. are not at all disputed. Now, comes the last witness, Dr. Sushil Kumar Sinha (P.W.2), who conducted post mortem examination on 20.04.1987 at 3.15 P.M. proved his post mortem examination report (Ext.1) which speaks rigor mortis presence in all the four limbs both the hands and finger clenched. The following ante mortem injuries were found on the dead body of the deceased:- (I) Odour of Kerosine oil, sooty blackening of the parts, the body assumes the typical Puglastic attitude. There was stiffness of all the four limbs. Sineing of hairs, blackening of sking and burning of body below the neck including whole chest, abdomen, pelvis, perineum and both the knees. Burning of both arm & fore arms mid-shaft. Burning includes elbow also. Vasiculation present on the body on burned area with containing semifluid. (II) Swelling of right fore-arm 2” above the right wrist with abraision 2”x1/2”. On dissection 9 there is commuted fracture of both radius- ulna. (III) Swelling and abrasion left side of bake 3 ½”x2”. On opening the chest there is fracture of left four, fifth, sixth and seventh ribs at their angles. (IV) Lacerated wound at right shoulder 2”x1/2”x1/2” with dislocation of shoulder joint. (V) Incised wound at right side of chest 3” below with clavicle mid line 1½” x ½” x ½“. On dissection it piercing right pleura and lung. The whole chest cavity is full of blood. Left lung and pleura is congested and shirnken. The chambers of heart are full of blood and blood clots. (VI) Abrasion at the front of fore-head 1½ x ½ “. Small hair present at the wound. On opening the skull brain matter is found congested. (VII) Lacerated wound at lower lumber area linear type 3” x ½ “ x ½ “. Stomach contains one ozs. Of undigested material. Mucous membrane of stomach and intestine reddened. Nature of weapon used : - For injury no.1 was caused by burn, Injury no.5 caused by sharp 10 cutting weapon and rest by hard blunt substance. Cause of death had been due to above mentioned injuries causing shock and hemorrhage. The injuries were sufficient to cause death in ordinary course of nature. 9. He has further opined death has been caused by previously injuries followed by burn. In his short cross examination he has denied the possibility of causing injury no.5 by fall on vegetable cutter though he accepted the possibility by fall on sharp penetrating weapon but at the same time denied possibility of causing other injuries by fall as it is scattered on all over the body. Further he is firm with the opinion that deceased must have taken meals before one or two hours of her death. Of course, admits that normally in case of burn one tries to run away for safety. From Ext.1 the post mortem report (as endorsed in column 13), it appears that no abnormality was detected (NAD) in trachea and this finding of the doctor conducting post mortem examination alone rules out, the burn injuries being caused to the deceased while she was alive. Had during her life time she caught fire during preparation of meal as suggested by appellant who is none else than husband of the deceased that she sustained burn injuries during preparation of meal. Trachea must have some carbon particles that apart as is evident from Modi’s Medical Jurisprudence and Toxicology 23rd Edition at page 637. The three main points to differentiate between the ante mortem and post 11 mortem burns are: (a) line of redness; (b) vesication; (c) reparative processes. (a) Evidence of Vital Reactions – Line of Redness: In the case of a burn caused during life, a line of redness involving the whole true skin is formed around the injured part. It is a permanent line, persisting even after death, but redness or erythema, which is found beyond this line of redness due to distension of the capillaries, is transient, disappears under pressure during life and fades after death. (b) Vesication: Vesication casued by a burin during life contains a serous fluid consisting of albumen, chlorides, and often a few polymorhponuclear white blood cells and has a red, inflamed base with raised papillae. The skin surrounding it is of a bright red or copper colour. This is known as 12 true as compared with false vesication which is produced after death. False vesication contains air only but may contain a very small quantity of serum comprising traces of albumen and chloride. Again, its base is hard, dry, horny and yellow instead of being red and inflamed. (c) Reparative Processes: Reparative processes, such as signs of inflammation, formation of granulation tissue pus and sloughs, will indicate that the burns were caused during life. Burns caused after death shows no vital reaction and have a dull white appearance with the openings of the skin glands coloured grey. The internal organs are roasted, and emit a peculiar offensive odour. But when finding nothing of the kind there will be only conclusion that the burn injuries are post mortem, in no case anti mortem as contrary opined by the doctor and also suggested by defence as such it is to be ignored. In view of the established principle that the witnesses may tell lie but the cirumstances never, such clinching circumstances is much 13 more than satisfactorily adduced direct evidence, if any, and is to prevail upon hypothetical medical opinion. This inspiration is derived from a decision of Apex Court in a case Punjab Singh Vs. State of Haryana A.I.R. 1984 SC 1233 wherein it is said in para 2, if direct evidence is satisfactory and reliable the same cannot be rejected on hypothetical medical evidence. 10. Apart from the above finding of undigested food coupled with the opinion of the doctor (P.W.2) in cross examination that the deceased must have taken meals an hour or the two before death, further rules out the possibility of catching fire during preparation of meal and being the family members and husband of the deceased who died while in custody and control of the appellant is to be explained by him since the causes behind her abnormal death is presumed to be within the personal knowledge of the deceased and her husband, the appellant, in view of section 106 read with Section 114 of the Evidence Act. 11. It is true that such a vital circumstance and completely discarding burn injuries upon deceased being anti mortem rather giving clear indication that during her life time she was subjected to assault by other weapons sustained injuries which were themselves sufficient to cause death and just to screen the offences, colour of burn injuries, has been given lost sight of the trial court who failed to put such circumstances before the doctor P.W.2 during his examination as witness as well as the appellant to explain while recording 14 his statement under section 313 of the Code of Criminal Procedure. 12. During the course of argument, while finding of the above circumstances we provided an opportunity to learned counsel representing the appellant to explain what could have been replied by the appellant. Had such circumstances been put at the time of recording his statement under section 313 of the Code of Criminal Procedure. But, in face of emerging such a clear circumstance, learned counsel for the appellant had no reply but to submit that conviction of the appellant be treated only under section 304(B) of the Indian Penal Code and minimum prescribed punishment be awarded taking into consideration the time elapsed and present age of the appellant. But by only accepting such submission we are afraid of doing real justice in the instant case. 13. We have taken into consideration, the mandates of the provision as contemplated under section 313 Cr.P.C. and on going through decision of this court dated 31st January 2011 in a case Ram Jiwan Choudhary and others Vs. The State of Bihar Criminal Appeal No. 273 of 1989, wherein such matter has elaborately been dealt with and in our considered view, in the instant case, it would be proper to rely upon the decision of the Apex Court in a case Shivaji Sahabrao Bobade Vs. State of Maharashtra reported in 1973(2) SCC 793, wherein para 16 it is stated as such: “It is trite law, nevertheless fundamental, 15 that the prisoner‟s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had 16 relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial Court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was „I do not know’. Counsel for the appellants could not make out any intelligent explanation and the „blood’ testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial Court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of sessions Judges who try grave cases to collect every incriminating circumstance and put it to 17 the accused even though at the end of a long trial the Judge may be a little fagged out.” (Underlined by me). And in view of the fact that no reply was available to the appellant to meet the circumstances completely going against him and no prejudice have been caused to him due to such circumstance remaining unnoticed by the trial court who while recording his statement failed to put before him seeking any explanation from him. 14. The learned Additional Public Prosecutor further relying upon the averments of the trial court in para 14 wherein it has been mentioned: “ ………… It is crystal clear that deceased was subjected to ill-treatment by the accused persons because money was not given in dowry. The death had taken at the house of the accused persons. Besides burn injuries the deceased had also sustained severe injuries on her person which were anti- mortem and were sufficient to cause death in ordinary course of nature. No treatment was given to the deceased……..”. tried to submit that in fact, the conviction of the appellant was also under section 304(B)(II) of the Indian Penal Code without any separate sentence, though, it is not clearly worded and the order of conviction and sentence awarded 18 prima facie appears only for the offences under section 302/201 of the Indian Penal Code only. 15. It is also pointed out that out of the three defence witnesses only D.W.1 is a co-villager remaining two of different villages and D.W.1 Dhanu Rai, the co-villager without giving date and time has said that on alarm he arrived at the house of the appellant found the deceased crying sustaining burn injuries and making statement with pains that during preparation of meal her sari caught fire. In cross examination, he found no bleeding or any other injury on her person and he has unable to show where she was provided any medical assistance etc. But, this witness appears not stating the truth as evident from testimony of P.W.2 and Post Moretm Report (Ext.1). D.W.2 also in same fashion arrived at the house of appellant who could narrate same story of catching fire during preparation of meal but in cross examination he is unable to state whether she was provided any medical assistance or not and Ram Bilash Ray (D.W.3) is said to be a compounder of a Homeopathy Doctor who was not available, when he arrived found the deceased crying but did not provide