Criminal Appeal (D.B.) No. 195 of 2003 **** Against the judgment, and order of conviction, dated 16.04.2003, passed by Shri Samiul Haque, Additional Sessions Judge, VI, Gaya, in S.T. No. 66 of 2003/142 of 1996 **** 1. Arun Kumar @ Arun Kumar Singh 2. Ramashish Singh @ Ramashish Prasad, both sons of Ram Avtar Singh 3. Ram Avtar Singh @ Ram Avtar Singh Mahto, son of late Raghu Singh 4. Dharmsheela Devi, wife of Ramashish Singh all residents of village Lath Bigha, P.S. Khizersarai, district Gaya .. Appellants Versus The State of Bihar ..Respondents **** For the appellants .. M/S Rana Pratap Singh & Rama Kant Sharma, Sr. Advs. With M/S Rajesh Kumar & Arun Kumar Pandey, Advs. For the respondent .. Mr. Lala Kailash Bihari Prasad, Sr. Adv. **** P R E S E N T THE HON'BLE JUSTICE MRS. MRIDULA MISHRA THE HON'BLE MR. JUSTICE S. MOHAMMAD MAHFOOZ ALAM Mridula Mishra, J. Heard the counsel for the parties. 2. Present appeal was filed by four appellants, namely, ArunKumar @ Arun Kumar Singh, Ramashish Singh @ Ramashish Prasad, 2 Ram Avtar Singh @ Ram Avtar Singh Mahto and Dharmsheela Devi, against their conviction in Sessions Trial No. 66 of 2003/142 of 1996. Appellants have been convicted by Additional Sessions Judge, IV, Gaya, for offences under Sections 302/34 and 328/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also fine of Rs.10,000/- each, in default, they are further sentenced to undergo rigorous imprisonment for four months. No separate sentence has been awarded for the offence under Section 328/34 of the Indian Penal Code. 3. During the pendency of the appeal, appellants no. 3, Ram Avtar Singh @ Ram Avtar Singh Mahto, died and an affidavit, in this regard, was filed in order to apprise the Court regarding the death of appellants, as such, the Criminal Appeal is abated, so far appellants no. 3 is concerned. 4. Appellants no. 1, Arun Kumar @ Arun Kumar Singh, is the husband of Sunita Devi, appellants no. 2, Ramashish Singh @ Ramashish Prasad is the brother of appellants no. 1 and appellants no. 3, Dharmsheela Devi, is the wife of appellants no. 2. 5. On the basis of fardbeyan of Udai Kumar (P.W. 4), brother of victim, Sunita Devi, Khizersarai P.S. Case No. 89 of 1991 was registered under Sections 302 and 328/34 of the Indian Penal Code. It was stated in the first information report that on 19.09.1991 at 06.00 a.m. some persons came to the house of the informant from village Lathbigha and informed that in the evening of 18.09.1991 his sister, Sunita, has been killed by informant‟s brother- in-law, Arun Kumar, and his family members by administering poisoning and 3 strangulating her. The informant and his family members were also informed that dead body of Sunita was being carried for cremation in the night, but, villagers apprehended them along with the dead body and not allowed to cremate. On such information, Udai Kumar (P.W. 4) with his father Harihar Mahto (P.W. 1) uncle and other family members went to the police station and gave information in writing that informant‟s brother-in-law, Arun Kumar, had illicit relationship with his sister-in-law, Dharmsheela Devi. He had fallen in love with his sister-in-law and due to this Sunita was being tortured in different ways. Three months‟ prior to the occurrence Arun Kumar, along with his friend, Arvind Kumar, had come to the informant‟s place as Sunita was residing there. Arun Kumar, at that time, had given assurance that he will keep his wife properly and will give her dignity of a wife. On such assurance, Sunita was allowed to go to her husband‟s place, but, again, she was ill-treated and tortured. Arun Kumar started assaulting her. At times when Arun used to be sleeping with Sunita, Dharmsheela forcibly brought him to her room to sleep with her. Earlier Sunita had sent written complaints to the Officer of the Army Regiment of her husband regarding such torturous behaviour. Arun Kumar, thereafter, had given in writing to his Officers that in future he will not torture his wife and will never talk about any second marriage. Sunita had informed about the torture and misbehaviour when she came at parents house from her husband‟s place. In the fardbeyan, it has further been, stated that Sunita had also informed regarding demand of television and other articles by her in-laws and family members. She was being assaulted by the family members and the 4 husband. The fardbeyan also disclosed that Sunita was poisoned and throttled by her husband and family members. 6. On such information, Officer-in-Charge of Khizersarai Police Station recorded fardbeyan of the informant and came to village Lathbigha where dead body of Sunita was lying in the house of accused persons. Her inquest report was prepared and dead body was sent for post mortem. Case was investigated and finally after submission of charge sheet it was committed to the Court of sessions for trial, which ended in conviction of the accused persons. 7. The trial Court framed charges against all the accused persons under sections 302/34, 328/34, 304B and 498A of the Indian Penal Code. However, accused persons were acquitted of the charge under Sections 304B and 498A of the Indian Penal Code on account of insufficient evidence for their conviction. 8. The prosecution, in order to prove charges, framed against accused, examined seven witnesses. P.W. 1, Harihar Mahto, is the father, P.W. 2, Umesh Prasad, is maternal cousin, P.W. 3, Kalawati Devi, is mother and P.W. 4, Udai Kumar, is the brother of the deceased and the informant of the case. P.Ws. 5 and 6 are co-villagers of the accused and residents of village Lath Bigha. They were declared hostile. P.W. 7, Dr. Arvind Prasad, Associate Professor and Head of the Department of Forensic Science, Gaya, has proved post mortem report (Exhibit 4), since the doctor, who had conducted post mortem on the dead body of the deceased could not be examined. 5 9. P.W. 7 has deposed that the post mortem on the dead body of deceased had been conducted by Dr. M.K. Sinha, who was Head of the Department of Forensic in the year 1991. He retired in the year 1999, left Gaya in the year 2000 and, thereafter, there is no information regarding his where about. The post mortem report (Exhibit 4) indicate that the doctor, who conducted post mortem, found some mark on the back portion of the neck of the deceased. The doctor was of the opinion that death was caused due to poisoning, as such, viscera was preserved and sent for it‟s examination to the Forensic Science Laboratory. The Forensic Science Laboratory sent it‟s report, which has been marked as Exhibit 5. As per the report of Forensic Science Laboratory the glass jar contained some dark brown fluid, which could have been dissolved tissue of viscera. As per Forensic Science Laboratory, “indosulfan” was detected in the dark brown fluid. Indosulfan is an organic pesticides widely used in agriculture for killing pests and is poisonous. On perusal of Exhibit 5, it is clear that death of Sunita was not a natural death, but, she died as poison was administered to her. 10. P.Ws. 1, 2, 3 and 4 all have deposed that relationship of deceased was not cordial with her husband. P.W. 1, father of the deceased, has stated that when Sunita came to his place she disclosed regarding assault and torture by her husband. P.W. 1 has admitted that he himself had never asked Sunita, in this regard, and never made any such enquiry from his son-in-law. P.W. 2 is cousin of the deceased. He has stated that behaviour of Arun Kumar was not cordial with his sister. He used to assault her and because of ill- 6 treatment and torture. Sunita usually resided at her parents‟ place. Arun Kumar when came on leave, came along with his friend for taking away Sunita to his place. He had given assurance of good behaviour in future. On such assurance Sunita was allowed to go by her parents. Instead of keeping her properly she was killed by throttling her neck and administering poison. P.W. 3, mother of the deceased, has stated that when Sunita returned from her husband‟s place, she had disclosed that her husband always assaults her at instigation of Dharmsheela. Sunita had disclosed that her husband had developed illicit relationship with her sister-in-law. Sunita, thereafter, for one year continued to reside at her parents place. She was taken by her husband when he came on leave and gave assurance that henceforth there will not be any such complaints. In spite of this assurance Sunita was again ill-treated and tortured. Sunita, again, came to her parents‟ place, but, within three days she was taken by her husband to village Lathbigha. P.W. 3 has also deposed that her son-in-law is military personnel and only when he came on leave used to live with her daughter, but, he never took Sunita at his place of posting. P.W. 4, Udai Kumar, informant of the case, has stated that since her marriage Sunita could live properly with her husband only for six months. Sunita was tortured and ill- treated by her husband and family members on account of such ill-treatment. Sunita had sent letters addressed to Commandant of the Regiment narrating her grievance against her husband. The Commandant took cognizance of one of the letters of Sunita (Exhibit 1) and in response to that Arun Kumar was asked to 7 give undertaking of good behaviour in future. Arun Kumar had given undertaking in writing (Exhibit 3). 11. From Exhibits 1, 2 and 3, it is apparent that relationship in between Arun Kumar and Sunita was strained. Exhibit 1 also discloses that Sunita was assaulted regularly specially whenever Arun Kumar came on leave. Behaviour of Arun Kumar towards Sunita was inhuman. He always used to threat of solemnizing second marriage. Arun Kumar in his undertaking (Exhibit 3) has written that he will not ill-treat Sunita in future and will never talk about solemnizing second marriage. This undertaking is nothing, but, an admission on the part of the Arun Kumar that earlier he used to ill-treat and torture his wife. Exhibits 1, 2 and 3 are documents which sufficiently prove that Sunita was apprehensive of her security at the instance of her husband and family members. She was taken by her husband giving assurance of good behaviour and peaceful marriage life. She went in the company of her husband with hope, but, finally met with her fate, which ended in her death. 12. Mr. Rana Pratap Singh, counsel for the appellants, has submitted that there is no direct evidence, so far killing of Sunita is concerned. This is a case of circumstantial evidence, but, several links are missing in between taking away of Sunita and her death. He has further submitted that even Forensic Science Laboratory‟s report can not be relied upon for the reason that it was received after a long delay. The Forensic Science Laboratory report only discloses that cause of death was poison. Only conclusion, to which one can arrive, on consideration of Forensic Science Laboratory report, in the light 8 of Exhibit 1, is that Sunita committed suicide by consuming poison. Sunita in her letter (Exhibit 1) had disclosed her mind that in case behaviour of her husband will not improve, she will commit suicide. Evidence of P.Ws. 1 to 4 indicates that behaviour of Sunita‟s husband remained unchanged. In this background it can be presumed that on account of some incident, she ended her life by consuming poison as there is no evidence that poison was administered to her by her husband or any family member. Except suspicion there is no direct or circumstantial evidence to connect the appellants with the unnatural death of Sunita. 13. Counsel for the appellants has also tried to persuade that strained relationship in between Sunita and her husband was for no other reason than non-fulfillment of Sunita‟s desire to live with her husband at his place of posting. Since, it was not possible, the relationship got bitter and finally she committed suicide. 14. It has also been submitted by the counsel for the appellants that appellants have falsely been implicated by the appellants and family members of Sunita by instituting a police case in haste. Family members of Sunita did not give any time to Sunita‟s husband and family members even to give information at the police station regarding her unnatural death. They without enquiring anything instituted a case, falsely implicated all family members. I do not find much strength in this submission. First information report discloses that some persons came at informant‟s house in the morning of 19.09.1991 at 06.00 a.m. to inform that Sunita has been killed by her husband 9 and family members in the evening of 18.09.1991. It was also informed that in the night itself family members made attemd to cremate the dead body, but, villagers restrained them from cremating the dead body. The prosecution case indicate that almost 12 hours time was allowed to the accused persons for giving information at the police station regarding unnatural death, but, there is nothing on record to show that any step was taken by them for giving information at the Police Station. 15. Counsel for the appellants has submitted that it was a case of suicide and Sunita herself consumed poison out of frustration. Submission on behalf of appellants would have got much force if it was correct that if Sunita had tried to commit suicide by consuming poison then it was expected from the family members that they should have taken steps to save her life. It is expected that they would take her to the nearest hospital or the doctor available in the vicinity for saving her life. There is no such evidence on record to show that any step was taken by any one specially by the husband to save her life. The circumstance rather shows that the family members and the husband left her to die. Another circumstance, which indicate the guilt of the accused, is that Sunita died in the evening of 18.09.1991. The village of her parents is situated only at a distance of four kilometers. No information was given to her parents regarding unnatural death of Sunita, instead surreptitiously they tried to cremate the dead body without giving any information to the parents. Accused persons have not taken any defence that information was sent regarding death of Sunita to her parents. 10 16. The circumstances, discussed above, completely demolishes the defence of the accused appellants that it was a case of suicide and not of murder by administering poison to the deceased. 17. Admittedly, Sunita was taken from her parents‟ place on assurance of good behaviour. She was young and healthy. There is no evidence that she was suffering from any ailment. In this circumstance, if she died due to poisoning and no reason has been assigned by the accused appellants for committing suicide by the deceased, only inference which can be drawn is that she was poisoned and left to die without any medical assistance or help. 18. Counsel for the appellants has submitted that accused appellants were acquitted of charge under Sections 304B and 498A of the Indian Penal Code on account of insufficient evidence, on similar evidence they could not have been convicted for offence under Sections 302/34 and 328/34 of the Indian Penal Code. They should have been acquitted of this charge also as the prosecution failed to prove any motive for killing Sunita. I do not find this submission sustainable, considering evidence on record. 19. Analyzing the evidence and considering submissions, I find that none of the witnesses have specifically deposed regarding involvement of Ramashish Singh @ Ramshish Prasad either in assault or torture of the deceased. Similarly, there is no evidence on record to show that Dharmsheela Devi indulged in torturing or ill-treating the deceased. The allegation in the first information report is regarding illicit relationship of Dharmsheela with 11 Arun Kumar, but, no specific evidence has been brought on record to prove this illicit relationship. Sunita in her letter (Exhibit A) has also not alleged anything against Dharmsheela Devi. Exhibit „A‟ is silent, so far Dharmsheela Devi is concerned. In this letter there is no whisper regarding ill-treatment by Dharmsheela or her illicit relationship with Arun. 20. Considering evidence, on record, I hold that the prosecution has not been able to prove charges framed by the trial Court against appellants, Ramashish Singh @ Ramashish Prasad and Dharmsheela Devi. These two appellants are acquitted of the charge under Sections 302/34 and 328/34 of the Indian Penal Code. The judgment of conviction and order of sentence is set aside. Appeal of these two appellants is allowed. They are discharged from the liabilities of their bail bonds. 21. Case of appellant, Arun Kumar @ Arun Kumar Singh, is completely on different footing. Entire prosecution case and evidence revolve around him. Exhibits 1 and 2 disclose ill-treatment, assault, torturous behaviour of this appellant towards his wife. In his own pen and writing (Exhibit 3) this appellant has given undertaking of good behaviour and also that he will never talk for second marriage in future. This undertaking indicates that in fact his behaviour was not satisfactory and he was not discharging duties of a husband. All circumstances are against appellant, Arun Kumar @ Arun Kumar Singh. The strongest circumstance which goes against this appellant is that when he came on leave, he purposely went to her in-laws‟ place with his friend for bringing his wife. He gave assurance of good behaviour and good treatment. 12 On this assurance parents of Sunita allowed her to go in his company. She was brought by this appellant to his house, but, started ill-treating Sunita forgetting all assurance. She was assaulted, tortured and finally killed by administering poison. Being a husband, it was expected of him that if his wife had taken poison he will make all attempts to save her life. There is no evidence, on record, that he made any efforts to save her life. The evidence shows that he kept on watching and waiting patiently for Sunita‟s death. All these circumstance connect Arun Kumar @ Arun Kumar Singh to homicidal death of Sunita. His conviction by the trial Court does not require any interference. 22. Accordingly, conviction of appellant no. 1, Arun Kumar @ Arun Kumar Singh is affirmed. His conviction under Sections 302/34 and 328/34 of the Indian Penal Code is modified to Sections 302 and 328 of the Indian Penal Code and the sentence of rigorous imprisonment for life of Rs.10,000/-, in default, rigorous imprisonment for four months is also upheld. Criminal Appeal on behalf of appellant, Arun Kumar @ Arun Kumar Singh, is dismissed. ( Mridula Mishra, J.) S.M. Mahfooz Alam, J. I agree. (S.M. Mahfooz Alam, J.) The Patna High Court, The 16th December, 2008 N.A.F.R./S.A.