Criminal Appeal (SJ) No. 835 of 2006 -------- Against the judgment and order of conviction and sentence dated 18.8.2006 and 19.8.2006 passed by Shri Manmohan Choudhary, Additional Sessions Judge, FTC V, Bhagalpur in S.T. No. 300 of 1990 / Trial no. 190 of 2002 ----------- Ram Bilash mandal, son of late Mahabir Mandal, resident of village – Kalikapur, Police station – Goradih, District – Bhagalpur …………….. Appellant Versus The State of Bihar ……………….. Respondent -------- For the Appellant : Sarvshri Bhola Prasad & Swapnil Kumar Singh, Advocates For the State : Shri Ajay Mishra, APP --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The solitary appellant Ram Bilas Mandal, was charged together with acquitted accused persons, namely, Kaleshwar Mandal and Ganesh Mandal under sections 304B/34, 201/34 and 498A IPC. Subsequently, the charges were amended and alternative charges under sections 304B, 201/34 and 498A IPC were added by order dated 28.6.2000. After the initial framing of charges under sections 302/34 and 201/34, witnesses Chano Mandal and Dhiran Mandal, Budhni Devi, Dr. Nagendra Narain Bhagat and Shailendra Kumar Jha were examined. Not only that, the statement of the accused persons were also recorded under section 313 Cr.P.C. and during the 2 pendency of the case for defence and argument, new charges under sections 304B, 201/34 and 498A IPC were added up. The learned trial judge who added up new charges in addition to those which were already framed by an order passed on 12.4.1993, without there being any application or an order to that effect, recalled two witnesses, namely, Budhni Devi and Chano Mandal for fresh evidence and this is how their depositions were recorded afresh. When the judgment was delivered by Fast Track Court No. 5, Bhagalpur in S.T. No. 319/190 of 2002 on 18.8.2006, all accused persons except the present appellant were acquitted of the charges. The present appellant was convicted by Fast Track Court No.4, Bhagalpur for committing offences under sections 304B, 201 and 498A IPC and was, accordingly, directed to suffer rigorous imprisonment for seven years, five years and two years respectively on the three counts. The sentences were directed to run concurrently. The above judgment and order of sentence is being assailed by the present appellant in the present appeal. 2. Undisputedly, the present appellant was married to Kari Devi, daughter of the informant Dhiran Mandal (P.W. 2). It is not denied that the deceased was living on the day of occurrence in the house of the present appellant. This is also not disputed that the appellant or his father had lodged report before the police that the deceased had run away from his house after creating an opening in the wall of the house and that report was registered by the police. A dead body was, thereafter, located in a well and that was retrieved from it. The informant Dhiran Mandal identified the dead body and then gave 3 his fardbeyan Ext.2 in which he stated that the deceased had been killed by the appellant and others on account of not getting the watch, radio and cycle as dowry and a false report had been lodged with the police about the lady going missing. The fact of the matter was that after killing the deceased her dead body was consigned to the well with intent to destroy the evidence of murder. P.W. 2 further stated that the deceased was married in the year 1986, in the month of Ashadh and at the time of the marriage, various articles as also cash were demanded, which could not be given but, still the informant paid rupees two thousand seven hundred after borrowing the amount from his villagers. When it came to performing the Gauna ceremony, which was fixed for 3.2.1987, this appellant along with his father came to the house of the informant about 5 – 6 days prior to the fixed date to threaten that if the watch, the cycle, the radio, full pant and shirt were not given to him then Gauna would not be performed. The informant stated that he tried to convince them to bear with his economic condition and further that whatever he could be able to give as presents, he would, on which the appellant came with another man and Gauna was performed on 3.2.1987. The informant stated that the lady told him on 20th February, 1987 that she had picked up some news that the accused persons were contemplating to execute their plan of liquidating her and he was deeply disturbed after having received the information. While he was looking for a way to wriggle himself out of that difficult situation, he learnt about his daughter 4 going missing and subsequently, came across to the dead body lying in the well. 3. On the basis of Ext. 2, the FIR was drawn up and the police investigated the case. The police sent the dead body for postmortem examination which was held by P.W. 4 Nagendra Narayan Bhagat, who stated that a bruise was found on either sides of the neck of the deceased measuring 2 ½” x 1”. A depressed fracture on thigh, buttock and calf was also located. Muscles were missing. On dissection, the doctor found the blood infiltrated into the muscles in both sides and in front of it and blood clot was also found in muscles and tissues of the neck. Rings of trachea were fractured and, in the opinion of the doctor, the lady had been asphyxiated to death due to pressure over her neck. Thus, what was concluded by the police and what I also conclude is that the lady was murdered and it was only when the dead body was consigned to the water of the well, it started decomposing, which fact would appear from another document the Inquest report, (Ext.3), which is also available on the lower court records. The inquest report indicates that in spite of high state of decomposition of the dead body, the face was very clear and it was clearly identifiable. The informant stated right from his fardbeyan up to his evidence in court that he had identified the dead body. 4. Witnesses who were examined in support of the charges were P.W. 1 Chano Mandal, who was the uncle of the deceased and full brother of the informant Dhiran Mandal (P.W.2), who fully supported the evidence of P.W.2. Likewise, P.W. 3 Budhni Devi, who 5 was the wife of the informant and mother of the deceased, was also supporting the evidence of P.W. 2 on all aspects of the matter; regarding demand, its non-fulfillment and thereafter payment of rupees two thousand seven hundred by P.W. 2 after having borrowed the sum from his villager. P.W. 4 is one of the I.Os of the case, who laid charge sheet and who also proved the fardbeyan (Ext.2) and inquest report (Ext.3). 5. It was contended by Shri Bhola Prasad, learned counsel for the appellant that there was no eye witness to the occurrence and there could be a probability, as was reported by the appellant and his family members, that the deceased had strayed away from her house and could be killed by some unknown hands. It was further contended that the evidence on record was quite deficient and after addition of the charges under section 304B, etc. IPC by a subsequent order, it was required under law that witnesses ought to have been recalled for further cross examination. It was contended that on account of not recalling the witnesses, who had already been cross-examined and discharged, their evidence ought not have been read for judging the correctness of the evidence recorded by learned trial judge. It was a case of absence of evidence and the appellant must be acquitted. 6. I find from the perusal of the judgment passed by the learned lower court that he was unnecessarily delving into the provision of Evidence Act so as to considering whether the evidence which was recorded after the framing of charges firstly on 12.4.1993 and subsequent addition of charge by order dated 28.6.2000 could be 6 considered or not. In a criminal trial, there could be two situations. If the situation could be that on same facts multiple charges in the alternative are required to be framed, then the law permits it to be framed as may appear from section 221 of the Cr.P.C. If it appears from the facts of a case that multiple offences are constituted and if the court finds itself uncertain as to for what offence or offences the accused should be charged, then it is permissible by that provision of the Cr.P.C. that alternative charges in multiple heads could be framed and the joinder of charges could be made at the same trial. The learned trial judge, who was adding the charges by a subsequent order passed on 28.6.2000, might have lived under some mis-comprehension of the said provision of law and might have treated it as altering or adding up a fresh charge and, as such, was examining the two witnesses Budhni Devi and Chano Mandal afresh who had already been examined and discharged. In fact, there was no change in the fact situation, there was no further allegation which was being considered for adding up the charge under sections 304, 201, etc. IPC rather the charges were being added up in alternative to the earlier charges, on the same facts. The witnesses had deposed to the same facts and they had been cross examined by the defence also. The case of prejudice does not appear coming out of the whole exercise of the addition of the charges afresh by an order passed on 28.6.2000. The defence had an opportunity to fully cross examining the witnesses. The accused persons were questioned generally on the circumstances appearing from the evidence and, as such, the question of not admitting the evidence 7 which were recorded for framing of the earlier charges under sections 302, and 201 IPC was never available to the court and it was a useless exercise by the learned trial judge to go into that aspect of the case. 7. The evidence clearly indicates that the parents of Kari Devi were pestered regularly for one article or the other which were demanded as additional dowry. Kari Devi was reportedly to be murdered in a pre-planned manner as she appears done. She was the wife of the appellant and she went missing from the house. The dead body which was ultimately located was lying in the water of the well and the state of dead body indicated that the lady had been asphyxiated to death and thereafter the corpse had been consigned to the water of the well. It could be a situation which could be fully covered by section 106 of the Evidence Act because the appellant being husband of Kari Devi is obliged to explain as to under what circumstances she was killed and by whom. He or his family members were lodging a false case. This is additional circumstance against him to strengthen his guilt. 8. Considering all these circumstances, I find no merit in the present appeal and the same is dismissed. (Dharnidhar Jha, J.) Patna High Court, The 13th July, 2011, NAFR/Anil/