IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.110 of 1989 Against the judgment and order of conviction dated 27.01.1989 passed by Sri J.P. Verma, Sessions Judge, Sitamarhi in S.T. No.41 of 1987 arising out of G.R. Case No.1218/86 and Sitamarhi P.S. Case No.288/86. ==================================================== Bijoy Sah, son of Parsuram Sah, resident of village-Bhasar, P.S. & District-Sitamarhi. .... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ==================================================== Appearance : For the Appellant : M/s Vishwanath Pd. Sinha, Sr. Adv., Anil Kumar Singh, Sanjay Kumar Singh & Prabhash Ranjan Thakur, Advocates. For the Respondent : Ms. Shashi Bala Verma. ==================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ****** The present appeal by the sole-appellant is directed against the judgment and sentence dated 27.01.1989 passed by the learned Sessions Judge, Sitamarhi in Sessions Trial No.41 of 1987 by which the learned Sessions Judge having found the appellant guilty of committing offence under Section-302 of the Indian Penal Code (IPC) has sentenced him to undergo rigorous imprisonment for life. The appellant is said to have murdered his wife Gayatri Devi. The prosecution case is based on the fardbeyan (Ext.2) lodged on 15.11.1986 by the informant, Ram Swarth Sah (P.W.14) with the Sitamarhi Town Police Station, inter alia, alleging that he had married his daughter, Gayatri Devi aged about 19 years to the appellant but the appellant and his family members used to trouble her and demand bed and tape-recorder which he could not give at the time of marriage. She had come in a family wedding whereafter the appellant - 2 - had said to have assured that there would be no further trouble in the matter. Thereafter, Mauze Kapar (P.W.12) was sent to meet her at her ‘Sasural’ who informed that she was very upset and apprehended danger to her life and wanted to return home. On the evening of 13.11.1986 Bhola Sah (P.W.13) who is a villager informed him that his daughter had been killed and, accordingly, on the morning of 14.11.1986 he and his two brothers, namely, Rijhan Sah (P.W.10) and Jagannath Sah (P.W.11) went to the ‘Sasural’ of his daughter where they learnt that the appellant along with his father and mother on 11.11.1986 had killed his daughter by pressing her neck with a ‘Lathi’ and when people came to know on the next day they sprinkled kerosene oil on her and burnt her. It is also alleged that he was not informed about the death though his house is only about 6 miles away from the appellant’s house. Upon this information a case was registered under Section-302/34 IPC against the appellant and his parents. It may be noticed here that while registering the case itself the Officer-in-Charge of Sitamarhi Police Station noted thereon that it relates to Sitamarhi U.D. Case No.09 of 1986. It may also be noted here that at about 5:30 pm on 12.11.1986 an information was given to Sitamarhi Police Station (Ext.3) which laid to registration of U.D. Case No.09 of 1986, inter alia, alleging that Gayatri Devi the wife of the appellant had locked herself in a room and poured kerosene oil and lit herself. Seeing the smoke and sound from the locked room the door was broken but she had died by then. Police immediately arrived and inquest report (Ext.4) on the same day was prepared noting that the death was apparently suicidal and not homicidal. Police recovered the broken door latch on the same day and prepared a seizure list (Ext. A) which was duly witnessed by Jindar Mahto (D.W.1) and Asharfi Mahto (D.W.2) and this exhibit is admitted by the Investigating Officer, - 3 - Baleshwar Ram (P.W.15) in his deposition. The dead body was then immediately sent for postmortem examination which was carried by Sri Dharmdeo (P.W.9), Civil Assistant Surgeon of Sitamarhi Sadar Hospital on 13.11.1986 at 11 am and Ext.1 is the postmortem report. The investigation having been completed the chargesheet was submitted against the appellant and his father and mother under Section-302/34 IPC and charges were framed under Section-302 IPC against all the accused persons who pleaded not guilty and faced the trial. The defence of the appellant and his parents were that the death was suicidal and not homicidal. The Trial Court gave benefit of doubt and acquitted the father and mother of the appellant but held the appellant guilty for the offence under Section-302 IPC and sentenced him to life imprisonment. In order to establish the charge the prosecution has in all examined 15 witnesses. P.W.1, Ram Babu Sah and P.W.2, Munna Jha were declared hostile. In their examination-in-chief itself they had stated that the appellant came after ploughing his field after being informed about the incident. P.W.3, Jaikishore Sah has simply been tendered. Similarly, P.W.4, Ram Achal Mahto, P.W.6, Shyam Sah, P.W.7, Lal Babu Sah, P.W.8, Meena Devi had been declared hostile. Whereas P.W.5, Ram Awtar Paswan, the village chawkidar has been tendered. P.W.9, Dharmdeo, Civil Assistant Surgeon, Sitamarhi Sadar Hospital, who conducted the postmortem examination (Ext.1), in his deposition has clearly admitted that the burn injuries were ante-mortem and not postmortem. He clearly admits that apart from the burn injuries there were no other injuries found on the deceased. He had conducted the postmortem examination at about 11 am on 13.11.1986 and the death had occurred within 24 hours. - 4 - Rijhan Sah the brother of the informant and Jagannath Sah the other brother of the informant are P.W.10 & P.W.11 respectively. Jagannath Sah (P.W.11) has been tendered. Rijhan Sah is the brother who is said to have gone along with the informant and his other brother to the place occurrence on 14.11.1986. As noted above, Mauze Kapar (P.W.12) who was sent to the ‘Sasural’ of the deceased and who lastly informed that she was being mistreated. P.W.13 is Bhola Sah who is referred to in the fardbeyan as a co-villager of the informant who informed him about the killing of the deceased by the appellant and others. In his deposition he has admitted that when he came to the village of the appellant on 13th November, 1986 he did not meet anyone. He admits that he knew no one in the village yet he got information about the death and accordingly informed the informant. He has admitted to be the nephew of the informant and not mere co-villager. P.W.14 is Ram Swarth Sah, the informant and the unfortunate father of the alleged victim, deceased. He has supported his fardbeyan. P.W.15 is the Investigating Officer. In his deposition he has admitted that he had received information about the alleged suicide by Gayatri Devi and registered the U.D. Case No.09 of 1986. He had gone to the house and seized the broken door latch and prepared the seizure list. On 12.11.1986 he had prepared the inquest report noticing that the deceased had committed suicide. He had sent the body for postmortem which was done on 13.11.1986. In his cross-examination, he has admitted that Rijhan Sah, P.W.10 the brother of the informant had stated to him that on coming to know of the death of the lady three brothers had gone there. The body of the girl was taken to Sadar Hospital where postmortem was done and then the body was returned to the father of the appellant. He had stated that they had been cheated in marriage as the boy used to remain sick because of which the marriage could not be - 5 - consummated. Here, it may be noted that as per the fardbeyan the informant had alleged that they had come to know of the death on the evening of 13th November, 1986 and gone there on 14th November, 1986. They found that she had been killed and fardbeyan was lodged on the 15th November, 1986 whereas this witness P.W.10 had admitted to the Investigating Officer that they had gone on 13th November, 1986 in the morning itself as postmortem was performed in the morning of 13th November, 1986. The Investigating Officer also did not find any injury on the person as per the inquest report except burn injury. The defence has examined two witnesses who are witnesses to the seizure list of the broken door latch by the Investigating Officer when the U.D. case was lodged. Before proceeding to consider the evidence, it may be worthwhile to note that Section-304 B IPC and Section-113 A of the Evidence Act were made effective with effect from 19.11.1986 by appropriate enforcement notification and, accordingly, the appellant and others were not charged under Section-304 B IPC and consequently the onus of proof did not shift to the defence as envisaged under Section- 113A of the Evidence Act as the date of occurrence in this case is 12.11.1986. Under the said circumstances, it was for the prosecution to establish the guilt of the appellant beyond reasonable doubt. From the evidence as brought on behalf of the prosecution, the allegation in the fardbeyan is that Gayatri Devi was killed on 11.11.1986 by pressing her neck by a ‘Lathi’. On the next day, i.e., 12.11.1986 to hide the fact of murder she was burnt which information the informant got on 13th evening they (informant and his brothers) accordingly went to the ‘Sasural’ of the deceased daughter on 14th and fardbeyan was lodged on 15th November, 1986. First, the postmortem examination and the medical evidence of the doctor, P.W.9 - 6 - does not support this even one bit. There are no injuries apart from burn injuries found on the deceased. The story of strangulating her or suffocating her with a ‘Lathi’ pressed on the neck stands falsified. Then if as alleged she was killed on 11th November, 1986 and later burnt on 12th November, 1986 the burn injuries ought to have been postmortem. The postmortem report as well as the doctor, P.W.9 clearly shows that the burn injuries were ante-mortem and not postmortem. This itself is sufficient to falsify the prosecution case, especially when U.D. case was duly registered and enquired into on 12th November, 1986 itself and the body sent for postmortem and the postmortem report also received before the fardbeyan. As apparent from the deposition of the Investigating Officer, these three brothers of the informant were present when postmortem was conducted and body was received on 13th November, 1986 itself which falsifies the fardbeyan that they came to know later. From the deposition of these witnesses it seems that the grievance of the informant party that they were not immediately informed of the death as raised, the story had been built up and exaggerated. From the evidence of the witnesses, it is also clear that there was a big mismatch in the status of the appellant who was a poor farmer and the informant side who were rich businessman which gave rise to frustration to the deceased resulting in her suicidal death rather than the homicidal within about 1½ years of the marriage. Having heard the parties and considered the matter, in our view, there is nothing on record to establish much less beyond reasonable doubt that the death was homicidal in any manner. The evidence is to the contrary. In the result, we have no option but to allow the appeal and set aside the conviction and sentence of the appellant. While doing so, we may note that on the same evidence the Trial Court has acquitted - 7 - the father-in-law and mother-in-law of the deceased against which neither the State nor the informant has preferred any appeal. We see no reason to take a different view of the matter in case of the appellant. The appellant is discharged from the liabilities of his bail bond. (Navaniti Prasad Singh, J.) I agree. (Ashwani Kumar Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court The 21st December, 2011 Trivedi/NAFR