IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1096 of 2007 Against the judgment and order of conviction dated 22.09.2007 and sentence dated 24.09.2007 passed by Om Prakash Additional District and Sessions Judge, F.T.C.-V, Patna in Sessions Trial Case No. 315 of 1995 arising out of Punpun P.S. Case No. 25 of 1994, G.R. No. 1285 of 1995. ========================================================== Mithilesh Singh, son of Sheo Lochan Singh, resident of Village Paimar Ghat P.S. Punpun District-Patna. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant/s : Mr. Kanhaiya Pd. Singh, Sr. Advocate Mr. Pramod Kumar Singh, Advocate Mr. Binod Kumar, No. 2, Advocate For the Respondent/s : Mr. S.N. Lal, A.P.P. ========================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) (Dharnidhar Jha, J) The appellant and his father, namely, Sheo Lochan Singh were charged for committing offence under Section 304(B) and 498A of the Indian Penal Code as also Section 4 of the Dowry Prohibition Act by the Presiding Officer, Fast Track Court No. V, Patna in Sessions Trial No. 315 of 1995. While acquitting the father of the appellant, the learned Trial Judge, by his judgment dated 22.09.2007, held the charges proved as against the present appellant and, accordingly, found him guilty and after hearing on the quantum of sentence on 24.09.2007 directed him to suffer R.I. for ten years and two years under Sections 304B and 498A of the Indian Penal Code respectively. As regards the conviction of the Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 2 appellant under Sections 3 and 4 of the Dowry Prohibition Act, a composite order of sentence directing the appellant to suffer rigorous imprisonment for one year was passed. The trial judge did not award any sentence of fine to the appellant and directed the sentences to run concurrently. Being aggrieved by findings of guilt and the sentences passed upon him the appellant appeals to this Court. 2. Some of the facts are not disputed as may appear from the written report Ext.-3 of P.W.5, the informant, as also the plethora of evidence which was brought on record by examination of as many as 10 witnesses. It was not disputed that Radhika Devi aged about 25 years was married the second time to the present appellant due to the death of the first wife of the appellant. It is also not in dispute that the appellant had three children from his first wedlock. Another undisputed fact is that on 27.03.1994 the deceased was in the house of the appellant and she died under circumstances not natural, to be exact, she died of extensive burnt injuries. The last admitted fact is that after the occurrence had taken place, the dead body of the deceased Radhika Devi was carried to the police station by some of the villagers of the appellant who were also accompanied by P.W.4 Mukesh Kumar and simultaneously the informant and others also reached the Police Station. 3. The informant alleged that after being married to the appellant the deceased was living in his house and the informant wanted to bring back his daughter to his house. The proposal of the Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 3 informant being consented to by the appellant, another accused, it is alleged made a demand for a colour T.V. as also cash of Rs. 50,000/-. The evidence of some of the witnesses, like, P.W.-3, Ram Jee Singh would show that he had gone with the proposal to the house of the appellant and at that time P.W.4 was accompanying him and while he came back, P.W.4 stayed over there, which fact is not seriously disputed. 4. It was alleged by the informant that he picked up some rumor in his village that his daughter Radhika Devi had been killed by the accused persons. He along with his brothers who have been examined in this case as P.W.1 and P.W.3 and also his Bahnoi P.W.2, namely, Nageshwar Singh rushed to the Police Station to find that the dead body had already been carried there by the villagers of the present appellant who were accompanied by P.W.4. The informant alleged that his daughter had been killed by the appellant and his family members by pouring kerosene oil and setting the deceased at fire. 5. The allegation was general as noted above in Ext.3, the written report dated 27.03.1994 presented by P.W.5 before the Officer In-charge of the Police Station. 6. Investigation of the case was undertaken by S.I. Ram Sahay, examined as P.W.9 at the directions of this Court under Section 391 of the Cr.P.C. His evidence would show that after having received the written report (Ext. 3), he drew up the F.I.R. of the case and took up the investigation. During that course he held the inquest on the dead body of the deceased at the police Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 4 Station in presence of the witnesses including P.W.2 Nageshwar Singh. Thereafter, he recorded the statements of the witnesses as also inspected the place of occurrence, he sent the dead body for post mortem examination which was held by P.W.10 Dr. Mohammad Irshad Alam @ Dr. M.I. Alam and on receipt of all reports and finding materials sufficient sent up the two accused for trial which, ultimately, ended in the impugned judgment. 7. The defence of the appellant was that the lady being frustrated on account of being married to a person who had earlier been married and who had already had three children from the first wedlock, was quite unhappy about her life and as such committed suicide out of disgust and despair. 8. For proving the charges the prosecution examined altogether eight witnesses which included P.W.8 Dr. B.D. Prasad who had in fact not held the post mortem examination but deposed on the writings of Dr. Alam by stating that the postmortem examination report (Ext. 4) was prepared by Dr. Mohammad Irshad Alam @ Dr. M.I. Alam after he had held postmortem examination on the dead body of Radhika Devi and he was acquainted with the writings of Dr. Alam. At the time when evidence of the prosecution was adduced the investigating officer P.W.9 had fully not been examined. This Court felt his examination necessary as there was cross-examination of almost all witnesses on every fact they had stated in examination in chief to suggest to each of them that they had not made those statements before the police. The Court felt that it was a case of prejudice Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 5 caused or likely to be caused to the appellant which could be removed by the examination of the investigating officer as such directed the trial court to proceed to take additional evidence of the investigating officer and this is how P.W.9 Ram Sahay Rai was examined. Out of the seven witnesses P.W.6 and 7 were the villagers of the appellant. They were narrating the facts to tell the court that the deceased had committed suicide by setting herself at fire. Other witnesses were the informant P.W.5, his son Mukesh Kumar P.W.4, his two brothers P.W. 1 Ram Babu Singh and P.W.3 Ram Jee Singh and his Bahnoi P.W.2 Nageshwar Singh. They all stated that after having learnt about the incident they rushed to the police station for lodging a report but found that the dead body of Radhika Devi had already arrived there and that had been brought on a cot by the villagers of the appellant who were being accompanied by P.W.4. A written report (Ext. 3) was lodged. The evidence of P.W.2 Nageshwar Singh would show that he had signed the inquest report as the document was prepared in his presence. 9. All witnesses stated that Radhika Devi was not allowed to come back to her father’s house because P.W.5 was not in a position to pay Rs. 50,000/- in cash as also to give a color T.V. to the appellant. The attention of all witnesses were drawn by suggesting to them that they had never made those statements before the police earlier. On perusal of the evidence of P.W.9 S.I. Ram Sahay, the investigating officer of the case, this Court finds that the facts which have been stated by all the witnesses in their Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 6 examination in chief, which were suggested to everyone of them as not having been stated before the police gets corroborated from his evidence and that undoubtedly, the witnesses were making those statements for the first time in court. That being the position, this Court finds it into a very serious anomalous situation when the evidence in examination in chief of the witnesses appear a new material which was produced before the court of trial for the first time. So far as the statement of two witnesses P.W.4 and P.W.5 and of the informant recorded under Section 164 Cr.P.C. is concerned, by cross examining P.W. 4, the defence was suggesting that those statements were not recorded by the investigating officer and as such the defence was suggesting that those statements which were not recorded during the investigation could not be considered. The witness P.W.4 has stated that he was taken to the court of the Magistrate for recording his statement under Section 164 Cr.P.C. as was done by his father P.W. 5 and when one considers the time lag between the date of occurrence and date on which two statements Exts. 1 and ½ were recorded, one could find that it was after about seven months of the occurrence, that those statements were coming on the record. I have already noted that the evidence of all the witnesses, as regards the examination-in- chief part of their evidence, was completely new which was made by them for the first time during the trial. That fact was also contrary to the earlier fact which was stated by them before the police. This could be illustratively, pointed out by making reference to the statement of P.W.4 in Paragraph 11 when his Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 7 attention was drawn to the statements which were made by him during his examination in chief and he was suggested that he had never made such statement before the police. The attention of the Court was further drawn to certain facts stated by this witness in his evidence in para-17 of his evidence as regards the statement which had been made by this witness during investigation before the police. The contents of both paragraphs 11 and 17 of P.W.4 were later on corroborated by cross examination of P.W.9 who supported those statements were not made before him during investigation by P.W.4 of Mukesh Kumar. P.W.9 stated that Mukesh Kumar had made similar statements which were suggested to him having been made by him before the police during investigation as are contained in paragraph 17 of P.W.4. P.W.9 proved those facts as may appear from paragraph 18 of his evidence and if one considers that part of evidence of P.W. 9 then one could not have any hesitation in recording that P.W.4 could never one of eye witnesses to the occurrence and he was never present at the time when the lady was beaten up. 10. P.W.4 has projected himself as an eye witness. He has stated that he was at his sister’s house and he was taking his meals when this appellant took up a heavy wooden hammer and dealt two and three blows on the head of the deceased. The witnesses starting wailing and weeping, the deceased fell down and died. Thus P.W. 4 was projecting himself as an eye witness to the occurrence. It had a purpose and there was a foundation for this purpose also. P.W.5 has stated in his written report that his son Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 8 P.W.4 was already present at the time of the occurrence in the house where the occurrence had occurred. So it was very convenient for the prosecution to put words into the mouth of P.W.4 so as to projecting him as an eye witness. But, I have already shown by making reference to paragraph 7 of P.W. 4 and paragraph 18 of P.W.9 that it was an improbability to accept that P.W.4 could have remained present in the house of the appellant. In fact, on the basis of his own statement proved by P.W. 9 in paragraph 18, it could be held that P.W.4 was never present in his house. This is one of the reasons for discarding the claim of P.W.4 of being an eye witness. 11. The other reason which appears to the court is that P.W.10 Dr. Md. Irshad Alam who held postmortem examination on the dead body was noting down the injuries. The oral evidence of P.W.4 indicates that the blow of wooden hammer was so heavy as to causing instantaneous death of the deceased. One could simply be surprised to find after having perused the evidence of P.W.10 that he did not find any external or internal damage to the head of the deceased. It was an ante-mortem injury. The burnt injury extensively appeared on the whole body of the deceased except her soles, which had caused death of the deceased. The doctor pointed out as may appear from column no.-6 of Ext.4, the post mortem examination report, that the limbs of dead body was found in pugilistic attitude. The text book of medical jurisprudence shows that this could be found only when there is suicidal death on account of commission of suicide by setting oneself at fire. Thus, Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 9 the evidence of P.W.4 that the deceased was hit by a wooden hammer on her head is completely overruled by the evidence of P.W.10 and this is yet another reason on which I reject him as an eye witness. 12. I have already recorded the undisputed facts of the case. One such fact which appears is that the lady was aged about 25 years and probably the present appellant was some where in around 45. The appellant had been married earlier and had three children out of that wedlock. Witnesses have stated the number of children, their ages and class in which they had been admitted for their studies. The occurrence had taken place one year after the marriage of the appellant to the accused. The young lady must have her own aspirations. Finding herself living in a marriage which could have been completely against her aspirations must have caused her to be deeply depressed. In addition to that, she appears running the whole family which was consisting of her father-in-law, husband and three small children who were born out of the first wedlock of the appellant prior to being married to the deceased wife. One may not conjecturise, but may imagine situation. In the facts of the present case the lady must have gone in such deep depression so as to ardently desiring to get rid of such situations as appears indicating from facts. Her hopes must have been shattered after being married to a person quite senior to her in age and having brought with him such serious liabilities of nursing three children who were already in the family from the first marriage of the appellant. No wonder the lady, as such set herself Patna High Court CR. APP (SJ) No.1096 of 2007 dt.28-07-2011 10 at fire to get rid of the above difficult situations. This aspect of the case, probably, was missed by the trial judge while recording the conviction of the appellant. 13. In the light of the discussions of evidence and circumstances appearing therefrom, which I have just noted, this appeal is allowed by setting aside the judgment of conviction and order of sentence passed against the appellant. The appellant is on the bail. He shall stand discharged from the liabilities of his bond. Patna High Court Patna Dated 28th July, 2011 A.N.F.R./Devendra/ ( Dharnidhar Jha, J.)