The Court cannot discard the whole evidence given by witnesses merely because it’s exaggerated: Supreme Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.42718 Arising Out of PS. Case No. 218 Year 2013 Thana KARAKAT District Rohtas Shivjee Sah Son of Late Ram Sakal Sah 2. Manju Devi Wife of Sri Sheojee Sah Both resident of Village Jaishree P.S. Karakat District Rohtas The State of Bihar ... Appellant s ... Respondent s CRIMINAL APPEALNo. 1219 Arising Out of PS. Case No. 218 Year 2013 Thana KARAKAT District Rohtas Prashant Kumar Son of Shivjee Sah Resident of Village Jayshree P.S. Karakat District Rohtas The State of Bihar ... Appellant s ... Respondent s Dr. Amarendra Kumar Advocate. In CRIMINAL APPEALNo. 42718 For the Appellant s Mrs. Surya Advocate. For the Informant For the State In CRIMINAL APPEALNo. 1219 For the Appellant s For the Informant For the State CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Mr.Vikram Deo Singh Advocate. Mr. Mithilesh Kumar Singh Advocate. Mr.Sujit Kumar Singh APP. Mr. Mithilesh Kumar Singh Advocate. Mr. Sujit Kumar Singh APP Date : 15 04 2021 Appellants Shivjee Sah and Manju Devi are parents of appellant Prashant Kumar. All the appellants faced trial for offence under Section 304 B of the Indian Penal Code before learned Fast Track Court I Rohtas Sasaram in Sessions Case Patna High Court CR. APPNo.42718 dt.15 04 2021 No. 814 arising out of Karakat P.S. Case No. 2113. The appellants were found guilty for the aforesaid offence by judgment dated 25.09.2018. Appellant Prashant Kumar was sentenced to undergo rigorous imprisonment for 10 years and other appellants were sentenced to undergo rigorous imprisonment for 7 years by the order of sentence dated 29.09.2018. The judgment of conviction and order of sentence are challenged in these appeals. 2. The prosecution case as disclosed in the written report of PW 3 Ramesh Prasad Gupta is that Namita Devi the sister of the informant was married with appellant Prashant Kumar on 09.12.2012. After marriage Namita went to her sasural in village Jayshree P.S. Karakat District Rohtas. After few days Namita left for Visakhapatnam along with her husband Prashant where Prashant was a locomotive driver From Visakhapatnam Namita used to inform that she was being tortured even by physical assault by the husband for dowry. On request of Namita her mother gave a gold chain to Prashant however torture continued On 20.09.2013 Namita along with Prashant came to the house of the informant in village Dihri. Namita stayed there at and Prashant left to appear in some examination at Patna High Court CR. APPNo.42718 dt.15 04 2021 Patna. After return from Patna on 23.09.2017 Namita and appellant Prashant left for village Jayshree. On 24.09.2013 Namita telephonically informed that her husband and other family members have bitterly assaulted her and have threatened to kill her. Thereafter mother of Namita tried to contact her on phone but no one was receiving the call. In the night at about 09:20 a call came that Namita is serious. Again at 09:30 a call came that Namita is dead now. According to informant for non payment of money the in laws eleven in number named in the F.I.R. allegedly committed murder of Namita by throttling her. 3. After investigation of the case the police submitted chargesheet against the appellants aforesaid and investigation against the rest was kept pending 4. Mr. Vikram Deo Singh learned counsel for the appellant Prashant Kumar would contend that there is no acceptable evidence of demand of dowry and torture for the same after fulfillment of the demand of a gold chain as alleged by the prosecution. For the first time during trial some of the prosecution witnesses claimed that there was further demand of a motorcycle. Learned counsel next contends that PW 2 Suresh Kumar Gupta and PW 4 Umesh Kumar Gupta are full brothers of the informant as well as of deceased Namita and these Patna High Court CR. APPNo.42718 dt.15 04 2021 witnesses have not stated that there was any further demand after fulfillment of demand of gold chain. PW 4 has not stated at all that there was any demand of dowry and torture for non fulfillment of the demand. The prosecution case suffers from non corroboration of claim of the prosecution that the victim was throttled to death by the medical evidence. The doctorhas found the case of ‘hanging’. Learned counsel contends that there is complete lack of evidence that Namita was being tortured by her in laws at any point of time due to non fulfillment of dowry demand. Learned counsel contends that specific question on incriminating material as to nature of dowry demand and nature of torture is missing in the statement of accused under Section 313 Cr.P.C. Hence prosecution evidence if any cannot be relied upon Dr. Amrendra Kumar learned counsel for the appellants Shivjee Sah and Manju Devi contends that the prosecution has not alleged about any demand of dowry against these appellants specifically nor there is any evidence that these appellants were involved in torture to Namita 5. Mr. Sujit Kumar Singh learned counsel for the State respondent contends that plurality of the witness on any specific point is not the requirement of law. PW 3 and PW 5 Patna High Court CR. APPNo.42718 dt.15 04 2021 have specifically deposed that even after fulfillment of earlier demand of gold chain further demand of motorcycle continued The victim died within a year of her marriage in unnatural circumstances in the matrimonial house. Hence the burden was on the appellants to dispel the presumption that this was not a case of dowry death altogether seven witnesses 6. To prove the charge the prosecution examined PW 1 Ravishankar is a hearsay witness as he stated that he heard about death of Namita from the informant and about demand of dowry and torture from the parents of Namita. PW 3 Ramesh Prasad Gupta supported what he had stated in the written report with improvement that after fulfillment of demand of gold chain and locket a motorcycle was being demanded after 2 3 months of the fulfillment of the aforesaid demand. To the same extent PW 5 Chinta Devi the mother added to the allegation by saying that she carried a gold chain and locket to Visakhapatnam and handed over to Prashant and returned back. Later on demand of motorcycle started. PW 3 and PW 5 were confronted with their statement under Section 161 Cr.P.C. and attention of the Patna High Court CR. APPNo.42718 dt.15 04 2021 investigating officerwas also drawn that the aforesaid witnesses had not made any statement before him regarding demand of motorcycle after fulfillment of the demand of gold chain and locket. If such improvement of allegation is allowed at the belated stage of trial it would open a pandora gate to improve the prosecution allegation and make any suitable allegation against the accused to be harassed. PW 2 Suresh Kumar Gupta and PW 4 Umesh Kumar Gupta are also full brothers of the informant. PW 2 does not say that after fulfillment of demand of gold chain there was further demand of motorcycle. Moreover this witness was confronted with his other statements as prosecution witness to that of his statement before the police under Section 161 Cr.P.C and attention of the investigating officer was also drawn to that PW 4 Umesh Kumar Gupta who is full brother of the deceased does not speak at all about any demand of dowry and torture to Namita for non fulfillment of the aforesaid demand. PW 4 is a family member of the deceased and he is not a hostile witness. 7. In Raja Ram V. The State of Rajasthan reported in5 SCC 272 the Hon’ble Supreme Court said that if a witness is not declared hostile by the prosecution the Patna High Court CR. APPNo.42718 dt.15 04 2021 defence can rely upon the evidence of such witness and it would be binding on the prosecution. 8. The aforesaid view was reiterated in Mukhtiar Ahmed Ansari V. The State reported in 2005) 5 SCC 258. Paragraphs 29 to 31 of the judgment are being reproduced below “29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He however did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead it supported the defence. The accused hence can rely on that 30. A similar question came up for consideration before this Court in Raja Ram V State of Rajasthan No.42718 dt.15 04 2021 the defence to rely on the evidence of the doctor and it was binding on the prosecution 31. In the present case evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case the accused can rely on that evidence.” 9. Thus the evidence of PW 2 and PW 4 would go against the prosecution case and the accused would be entitled to rely on that which makes the prosecution case doubtful. There is no prosecution witness who claims to have seen the appellants committing any torture against the deceased or making any demand from the deceased or any other family 10. Coupled with the aforesaid drawback in the prosecution evidence the appellants have come up with a probable case that at the time of leaving for Visakhapatnam by train the deceased handed over her ornaments to her mother as mother suggested that it would not be safe to carry ornaments on train journey. When she returned from Visakhapatnam and was in her mother’s house on 20.09.2013 she asked for her ornaments from her mother and bhabhi and for not returning the Patna High Court CR. APPNo.42718 dt.15 04 2021 ornaments a quarrel took place. The deceased was very furiated and had locked herself inside the room but the appellant Prashant who was present there anyhow pacified the matter and took his wife to his own village and on the very same night she committed suicide by hanging herself. The aforesaid evidence has come as suggestion to the prosecution witnesses as well as in the testimony of DW 1 Shyama Devi DW 2 Satendra Chaudhary DW 4 Ritesh Kumar and DW 5 Prashant Kumar the appellant himself. In his statement under Section 313 Cr.P.C. the appellant specifically made disclosure of the aforesaid DW 3 Gopal Chand Sawant is Chief Manager of Life Insurance Corporation of India. He has proved the two certificates of life insurance one taken in the name of appellant Prashant Kumar in which deceased Namita Devi is nominee and another taken in the name of Namita Devi in which appellant Prashant Kumar is nominee. Both the policies were taken on 11. To prove the charge under Section 304 B IPC only factum of unnatural death in matrimonial home within seven years of marriage would not by itself suffice to hold the accused persons guilty of the offence under Section 304 B IPC Patna High Court CR. APPNo.42718 dt.15 04 2021 rather the prosecution has to prove that the woman was subjected to cruelty or harassment in connection with any demand for dowry and such cruelty or harassment was soon before her death. On proof of all these ingredients the presumption under Section 113 B of the Evidence Act would arise. Reference may be made to Bakshish Ram’s case reported in4 SCC 131 12. Even if the prosecution allegation is assumed to be correct that there was demand of a gold chain and a locket the said demand was already fulfilled. Therefore allegation of any torture for non fulfillment of dowry demand loses its surface. Some of the prosecution witnesses for the first time stated in Court that there was further demand of motorcycle which is not believable nor acceptable as this allegation of demand never surfaced before the trial. 13. Moreover the prosecution allegation that death of Namita was a homicidal death is inconsistent with the prosecution evidence of Dr. Rajesh Kumar Singh who has found the case of suicidal death by hanging. The witness is specific that in cases of hanging ligature mark is found upwards as noticed in the instant case. Ligature mark in this case discontinued in the back of the neck. The Doctor further opined Patna High Court CR. APPNo.42718 dt.15 04 2021 that in case of wrapping electric wire around the neck the ligature mark would be in circle covering entire circumference of the neck 14. Two of the prosecution witnesses who are full brothers of the deceased namely PW 2 and PW 4 have not supported the prosecution case of demand of dowry and torture for the same inasmuch as PW 2 does not say about any further demand after fulfillment of demand of the gold chain and PW 4 does not say about any demand or torture for the same. 15. In Sunil Bajaj Vs. State of Madhya Pradesh reported in 2001 CRI. L. J. 4700 the prosecution had produced only vague and inconsistent statement of interested witnesses being relation of the deceased. There was no evidence of any independent witness or neighbor of the place of occurrence or whereever the deceased was residing regarding cruelty to the deceased by the accused in relation to demand of dowry. In that case there was no mention of dowry demand in letters written by the deceased to her parents. The Hon’ble Supreme Court set aside the judgment of conviction. In the case on hand there is no independent corroboration of any torture to the deceased by any neighbor who had occasion to watch the relationship of the deceased with Patna High Court CR. APPNo.42718 dt.15 04 2021 her in laws nor there is any evidence that the deceased while she was in her parents house from 20.09.2013 to 23.09.2013 made any complaint of demand and torture nor the doctor found any external injury on the person of the deceased to corroborate the claim of the prosecution witnesses that the deceased telephonically informed that she was bitterly assaulted by the in laws and after few hours report of her death was received. Thus the prosecution evidence is very shaky and clumsy to prove the ingredient of demand of dowry and torture for the same and on such evidence conviction would not be safe. It is settled law that incriminating circumstances appearing against the accused in prosecution evidence must be put to the accused at the time of statement under Section 313 Cr.P.C. Unless such statements are put to the accused to give opportunity to meet the same with explanation such incriminating circumstances cannot be used against the 17. In Naval Kishore Singh v. State of Bihar reported in 7 SCC 502 the Hon’ble Supreme Court observed as follows “5. The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner Patna High Court CR. APPNo.42718 dt.15 04 2021 Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least the various items of evidence which had been produced by the prosecution should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same as the accused may not be in a position to give a rational and intelligent explanation The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the Patna High Court CR. APPNo.42718 dt.15 04 2021 accused is part of a fair trial and if it is done in slipshod manner it may result in imperfect appreciation of evidence.” 18. The aforesaid Judgment was followed by a three Judges Bench of the Hon’ble Supreme Court in Maheshwar Tigga Vs. State of Jharkhand reported in16 SCC 328 the Hon’ble Supreme Court said: “21. Section 313 of the Code casts a Patna High Court CR. APPNo.42718 dt.15 04 2021 duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused and the conviction is intended to be based upon it it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence it would vitiate the trial. Of course all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v Patna High Court CR. APPNo.42718 dt.15 04 2021 State(1976) 2 SCC 819 while dealing with Section 342 of the Procedure Code 1898 corresponding to Section 313 of the Code). Non indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case Recording of a statement of the accused under Section 313 is not a purposeless The Judgment in Asraf Ali was considered and followed in Samsul Haque Vs. State of Assam reported in 2019) 18 SCC 161 20. In the case on hand the examination of the accused under Section 313 Cr.P.C. has been done in extremely casual and perfunctory manner: “Question no.1: Have you heard the statement of the prosecution witnesses Question No.2: The witnesses have deposed that on 24.09.2013 in village Jayshree P.S. Karakat District Rohtas you all in furtherance of your common intention caused death by throttling of Namita Devi for non fulfillment of demand of dowry. Question No.3: The witnesses have deposed that Patna High Court CR. APPNo.42718 dt.15 04 2021 Namita the sister of the informant Ramesh Prasad Gupta was married with you on 09.09.2012. Question No.4: What you have to say else in your Evidently the trial Judge failed in its duty to put specific incriminating material as to nature of demand and nature of torture allegedly committed by the accused persons against the deceased. Specific question on nature of demand and nature of torture was essential. The accused cannot be expected to submit a reasonable explanation to a vague question. The accused seriously prejudiced due to non specific question as the prosecution had improved the allegation of demand of a motorcycle for the first time in the Court Thus on a deeper scrutiny of the prosecution evidence it has surfaced that a) the prosecution has failed to establish that the victim was being tortured before her death for non fulfillment of dowry demand for the reason that the demand which was alleged in the F.I.R i.e. of a gold chain and locket was already fulfilled and thereafter there was no demand and the prosecution cooked up a case only during trial that Patna High Court CR. APPNo.42718 dt.15 04 2021 there was further demand of motorcycle. b) There is no prosecution evidence that the victim during period of her stay in her mother’s house from 20.09.2013 to 23.09.2013 had made any complaint of demand of dowry and torture for the same. c) there is no independent witness or any evidence that any witness had seen the deceased being tortured by her in laws much less torture for non fulfillment of dowry demand. d) the doctor has not found any physical injury on the body of the deceased except the ligature mark as such the oral testimony of the prosecution that the deceased telephonically informed that she was bitterly beaten by the family members soon before her death is not e) Coupled with the aforesaid infirmities non asking of specific question under Section 313 Cr.P.C. regarding specific demand and nature of torture to the deceased by the appellants any prosecution evidence on the point cannot be Patna High Court CR. APPNo.42718 dt.15 04 2021 accepted. The defence version put forward during the trial evidently appears to be a probable story of unnatural death of Namita raised by the accused and is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. 21. The learned trial Judge has not considered correctly that the prosecution has failed to prove a case of demand of dowry and torture for non fulfillment of the same. As such the prosecution failed to establish the charge under Section 304 B IPC beyond reasonable doubt. 22. In the result the appellants are allowed the benefit of doubt for which they are entitled. The impugned judgment of conviction and order of sentence are set aside. The appellants are acquitted and these appeals stand allowed. The appellants are serving out the sentence. Let them be set free at once. Birendra Kumar J

Summary: A Court of law, being mindful of such distinction is duty bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. This was said in the case of Achhar Singh v State of Himachal Pradesh [CRIMINAL APPEAL No. 1144 of 2010] by Justice Surya Kant, J in the Supreme Court of India. The facts of the case date back to 12.05.2010/27.05.2010 when the High Court set aside the acquittal order passed by the Sessions judge. The two appellants are convicted for offences under Sections 452, 326 and 323 of IPC and Sections 302 and 452 IPC. Aggreived by the judgment of the High Court, the appellants filed an appeal The appellants contended that the statements made by the prosecution witnesses contained exaggerations and therefore it was wrong to convict him on the basis of such statements. According to the FIR, the deceased died owing to a single axe blow inflicted by the accused and the post­mortem report also showed only one head injury on her person. However, three prosecution eyewitnesses, deposed that the first accused gave two axe blows on her head and then co ­accused also hit the also hit the deceased’s left ear with an axe twice. The State contended that the credibility of the witnesses cannot be questioned merely because they were related to the deceased or because there were minor discrepancies or exaggerations. Inconsistent   evidence   by   the prosecution witnesses against one accused cannot be capitalised to give the benefit of doubt to another. The Court after analysing the contentions from the appellant side, opined that “Cambridge Dictionary defines “exaggeration” as “the fact of making something larger, more important, better or worse than it really is”. Merriam¬Webster defines the term “exaggerate” as to “enlarge beyond bounds or the truth”.  These   expressions   unambiguously   suggest   that   the genesis of an ‘exaggerated statement’ lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every exaggeration, therefore, has the ingredients of ‘truth’ Oxford   Concise   Dictionary   states   that   “false”   is “wrong;   not   correct   or   true. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it”. Referring to Hari Chand v. State of Delhi (1996) [9 SCC 112], the court said that “while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff”. Furthermore, the Court said that “It is equally well settled that there is no bar on the High Court’s power to re­appreciate evidence in an appeal against acquittal. The CrPC does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused”. Hence, the Court upheld the conviction order of High Court”.