Patna High Court
The State Of Bihar vs Nasruddin Mian @ Lallu on 21 June, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE No.1 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj
=======================================================
The State of Bihar
... ... Petitioner
Versus
Nasruddin Mian @ Lalu @ Nasiruddin Ahmad Son of Late Maqsood Alam @
Wakil Ahmad Resident of Village- Haradiyan, P.S.- Thawe, District-
Gopalganj (Bihar.).
... ... Respondent
=======================================================
with
CRIMINAL APPEAL (DB) No. 425 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj
=======================================================
Nasruddin Mian @ Lalu @ Nasiruddin Ahmad Son of Late Maqsood Alam @
Wakil Ahmad Resident of Village- Haradiyan, P.S.- Thawe, District-
Gopalganj (Bihar.).
... ... Appellant
Versus
The State of Bihar
... ... Respondent
=======================================================
with
CRIMINAL APPEAL (DB) No. 499 of 2019
Arising Out of PS. Case No.-47 Year-2007 Thana- MANJHAGARH District- Gopalganj
=======================================================
Salamu Nesha @ Salamun Nesa Wife of Masiruddin Ahmad Resident of
Village - Hardiya, P.S.- Thawe, Distt - Gopalganj.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
Appearance :
(In DEATH REFERENCE No. 1 of 2019)
For the Petitioner : Mr.
For the Respondent : Ms.Anukriti Jaipuriyar, Amicus Curiae
(In CRIMINAL APPEAL (DB) No. 425 of 2019)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr.Anuj Kumar, Advocate
For the Respondent : Dr.Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 499 of 2019)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr.Shafiur Rahman, Advocate
For the Respondent : Mr.Dilip Kumar Sinha, APP
=======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
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CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date: - 21-06-2021
The appellants in these appeals challenge the common
judgment of conviction dated 26.03.2019 and order of sentence
dated 29.03.2019 passed by the learned Sessions Judge, Gopalganj
in Sessions Trial No. 122 of 2008. By the aforesaid judgment dated
26.03.2019, the appellants have been convicted for the offences
punishable under Sections 498-A, 304-B, 302 and 201/34 of the
Indian Penal Code (for short 'IPC'). Consequent upon conviction,
vide aforesaid order dated 29.03.2019, the appellants have been
sentenced to undergo Rigorous Imprisonment (for short 'R.I.') for
seven years along with a fine of Rs.25,000/- each for the offence
punishable under Section 201/34 of the IPC and in default of
payment of fine to undergo further imprisonment for a period of six
months each and R.I. for three years along with a fine of
Rs.25,000/- each for the offence punishable under Section 498-A of
the IPC and in default of payment of fine to undergo further
imprisonment for a period of six months each. The appellant
Salamu Nesha @ Salamun Nesha (Cr.Appeal (DB) No. 499 of
2019) has been further sentenced to undergo R.I. for life along with
a fine of Rs.50,000/- for the offence punishable under Section 302
of the IPC and in default of payment of fine to undergo further
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imprisonment for a period of one year. The appellant Nasruddin
Mian @ Lalu @ Nasiruddin Ahmad (Cr.Appeal (DB) No. 425 of
2019) has further been sentenced to undergo death for the offence
punishable under Section 302 of the IPC with a fine of Rs.50,000/-.
It has been directed by the Trial Court that all the sentences shall
run concurrently. The Trial Court has held that since the appellants
have been convicted for the offence punishable under Section 302
of the IPC, no separate sentence is being prescribed for the offence
punishable under Section 304-B of the IPC.
2. After passing the impugned judgment and order, the
Trial Court made a reference under Section 366 of the Code of
Criminal Procedure (for short 'Cr.P.C') for confirmation of death
sentence awarded to the convict Nasruddin Mian @ Lalu @
Nasiruddin Ahmad, which has been registered as Death Reference
No.1 of 2019.
3. The respective appeals preferred by the appellants and
the reference made by the trial Court have been heard together and
are being disposed of by a common judgment.
4. The sessions trial in which the impugned judgment
and order were passed relates to the First information Report (for
short 'FIR') that had been registered at 12:30 PM on 21.03.2007 in
Manjhagarh (Thawe) Police Station under Section 154 of the Cr.P.C
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in respect of an incident that had occurred on 17.03.2007 at village
Haradiyan, P.S.- Thawe, District- Gopalganj situated at a distance of
9 kilometers from the police station.
5. The FIR was registered on the basis of duly signed
typed report of one Abdul Jabbar, father of the deceased Sanjeeda
Khatoon. In his report submitted to the S.H.O. of Thawe Police
Station, he has stated that his daughter Sanjeeda Khatoon, aged 23
years, was married to Nasruddin Mian @ Lalu @ Nasiruddin
Ahmad on 10.08.2003. Though he gave clothes and ornaments as
gift at the time of marriage as per his capacity, the accused persons
made a demand for motorcycle. However, on assurance of
providing motorcycle after some time, the bidagari of his daughter
was performed. He alleged that Nasruddin Ahmad along with his
Deyadin (sister-in-law) Salamu Nesha and his father Maqsood
Alam subjected the deceased to cruelty for a Hero Honda
Motorcycle as dowry. He states that in the evening of 20.03.2007,
he came to know that the aforesaid accused persons have killed his
daughter on 17.03.2007 by administering poison in her food
because of non-fulfillment of demand of motorcycle and buried her
body without informing him or his family members.
6. On receipt of the aforesaid report, the S.H.O., Thawe
Police Station Ashutosh Kumar forwarded it to the S.H.O. of
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Manjhagarh Police Station for instituting a case pursuant to which
Bipin Kumar Thakur, S.H.O. of Manjhagarh Police Station (not
examined) registered Manjhagarh (Thawe) P.S. Case No. 47 of
2007 on 21.03.2007 at 12:30 PM under Sections 304-B and 201/34
of the IPC against the appellants and father-in-law of the deceased,
namely, Maqsood Alam and handed over the investigation to
Ashutosh Kumar, S.H.O., Thawe.
7. It would be evident from the record that in the present
case the Investigating Officer (for short "I.O.") submitted charge-
sheet no. 92 of 2007 dated 20.11.2007 only against the accused
Nasruddin under Sections 498-A, 306 and 201/34 of the IPC and
kept the investigation open against the other two accused persons.
8. Subsequently, on 30.11.2007, though the I.O.
submitted supplementary charge-sheet no.94 of 2007 against the
accused Salamu Nesha under Sections 498-A, 306 and 201/34 of
the IPC, the accused Maqsood Alam having been found innocent
during investigation was not sent up for trial.
9. Upon receipt of the police report, the learned Chief
Judicial Magistrate, Gopalganj took cognizance of the offences vide
order dated 15.01.2008 and, after complying with the provisions
prescribed under Section 207 of the Cr.P.C, he committed the case
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of the accused Nasruddin Ahmad and Salamu Nesha for trial to the
Court of Session.
10. It would further be evident from the record that after
commitment of the case, originally charge was framed against the
two sent up accused vide order dated 22.08.2008 under Sections
498-A, 306 and 201/34 of the IPC to which they pleaded not guilty.
Thereafter, the prosecution witnesses were examined between
24.10.2008 and 29.07.2016 and, vide order dated 01.09.2016, the
prosecution evidence was closed.
11. After closure of the prosecution evidence, statements
of the appellants were recorded under Section 313 of the Cr.P.C on
the same day, i.e. on 01.09.2016 in which they pleaded their
innocence and asserted that they have been falsely implicated in
this case.
12. Thereafter, the sole defence witness Sahjad Gulrej
(D.W.1) was examined, cross-examined and discharged on
11.01.2017. Vide order dated 24.01.2017, the defence evidence was
closed and the case was fixed for argument.
13. It was at this stage that the informant of the case filed
an application under Section 216 of the Cr.P.C on 09.03.2017 for
addition of charge under Sections 304-B and 302 of the IPC to the
original charge framed against the accused persons earlier on
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22.08.2008. A reply to the application filed under Section 216 of
the Cr.P.C was filed on behalf of the accused persons on
18.03.2017.
14. After hearing the parties on the application filed
under Section 216 of the Cr.P.C, the Trial Court passed its order on
08.05.2017 whereby it altered the charge to Sections 304-B, 302
and 201/34 of the IPC in place of original charge under Sections
498-A, 306 and 201/34 of the IPC and fixed the case on 23.05.2017
for explaining the altered charge to the accused persons.
15. Vide order dated 08.05.2017, the Trial Court held that
the accused persons would be at liberty to cross-examine the
witnesses after alteration of charge in terms of Section 217 of the
Cr.P.C.
16. The aforesaid order dated 08.05.2017 passed by the
Trial Court reads as under: -
"IN THE COURT OF ADDL. SESSIONS JUDGE V,
GOPALGANJ, BIHAR
Sessions Trial No.122 of 2008
ORDER
08-05-2017
Today case record is fixed for order on the petition
filed on behalf of the prosecution, dated 09.03.2017, u/s
216 Cr.P.C to alter the charge and its rejoinder of dated
18.03.2017.
Heard both parties and perused the record. On
perusal of record, it transpires that in the instant case,
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
previously the charge was framed u/s 498(A)/306/201/34
of I.P.C; against the accused persons who are facing trial
for the alleged offences. Further on perusal of the
petition, filed on behalf of the prosecution u/s 216 Cr.P.C,
it transpires that the death of victim was caused due to
administering poison in her meal at her bridle home by
accused persons, which is also evident from viscera
report, and it is also evident that prior to death, the victim
was subjected to cruelty for the demand of Hero Honda
motorcycle and due to non fulfillment of such dowry, she
was subjected to cruelty soon before her death and she
was died due to administering poison in her meal. Further
the ld. Lawyer for the prosecution has also given his
emphasis on Sec. 113 B of the Indian Evidence Act,
which deals with the presumption as to dowry death.
Contrary to this, the ld. Lawyer for the defense has
voluntarily denied the factum of dowry death of victim
caused by accused persons by administering poison in her
meal and also denied the factum of demand of dowry and
subjected to cruelty soon before her death.
Heard both the parties and perused the case record.
On perusal of the same, it transpires that the death of
victim was caused due to poisoning which is an admitted
fact; vide Ext. 2, i.e the P.M. report and Ext. 5, i.e the
viscera report. Further on bare perusal of F.I.R, it
transpires that the accused persons were demanding
motorcycle and due to that the victim was subjected to
cruelty and she was administering poison in her meal
soon before her death. Considering the fact and
circumstances of the case, in my considered view, the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
instant case comes under the purview of Sec. 304B read
with Sec. 302 and Sec. 201 of the I.P.C and hence the
petition filed on behalf of the prosecution u/s 216 Cr.P.C
of dated 9.3.2017 is hereby allowed to alter the charges
u/s 304B/302/201/34 I.P.C in place of Sec.
498A/306/201/34 I.P.C.
Dated 23.05.2017 is fixed for charge. Accused
persons are directed to remain present physically on the
date fixed for framing of altered charges.
Further the accused persons will have liberty to
cross examine witnesses after alteration of charge u/s 217
Cr.P.C.
(dictated)
Addl. Sessions Judge V"
17. In view of the order dated 08.05.2017, the Trial Court
explained the altered charge under Sections 302, 304-B and 201/34
of the IPC to the accused persons to which they pleaded not guilty.
18. Further, on 23.05.2017, an application was filed on
behalf of the defence that since charge has been altered after
closure of the prosecution evidence, it is expedient that the
witnesses examined on behalf of the prosecution be recalled. The
said application of the defence was allowed vide order dated
23.05.2017 itself and the office was directed to issue summons to
all the prosecution witnesses.
19. Pursuant to the summons issued vide order dated
23.05.2017, the prosecution produced Md. Mustafa (P.W.1), Md.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
Habib (P.W.3), Abdul Jabbar (P.W.4) and Jamda Khatoon (P.W.5)
for further cross-examination.
20. After production of the aforesaid four witnesses on
recall, an application was filed on behalf of the prosecution to close
the prosecution evidence, which was allowed by the Trial Court
vide order dated 6/7.08.2017.
21. The record reveals that after closure of the
prosecution evidence pursuant to alteration of charge, the
statements of the accused persons were once again recorded under
Section 313 of the Cr.P.C on 21.08.2017 wherein they pleaded their
innocence.
22. However, the prosecution filed another application on
03.07.2018 stating therein that the statements of the accused
persons recorded under Section 313 of the Cr.P.C on 21.08.2017
are not as per the evidence led on behalf of the prosecution. Hence,
a request was made to record their statements once again under
Section 313 of the Cr.P.C for the purpose of enabling them to
explain the circumstances appearing in evidence against them.
23. The Trial Court, vide order dated 19.07.2018 allowed
the aforesaid application dated 03.07.2018 filed on behalf of the
prosecution and adjourned the case to 30.07.2018 for recording
fresh statements of the appellants under Section 313 of the Cr.P.C.
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24. It would further appear from the record that on
30.07.2018 the statements of the accused persons were recorded for
the fourth time in the trial under Section 313 of the Cr.P.C. The
appellants once again pleaded their innocence.
25. Having discussed the manner in which the trial
proceeded before the court below, let me look at the evidence
recorded during trial.
26. The prosecution examined, in all, 12 witnesses in
order to prove the charge against the accused persons. They are Md.
Mustafa (P.W.1), Md. Majummil Hussain (P.W.2), Md. Habib
(P.W.3), Abdul Jabbar (P.W.4), Jamda Khatoon (P.W.5), Saukat Ali
(P.W.6), Dr.Jamsedh Ahmad (P.W.7), Ashutosh Kumar (P.W.8), Md.
Ayub (P.W.9), Ramakant Giri (P.W.10) and Pawan Kumar Singh
(P.W.11). It would be pertinent to note here that the evidence of
Pawan Kumar Singh (P.W.11) was recorded on two different dates,
i.e. on 05.07.2013 and 29.07.2016 and while recording his evidence
on 29.07.2016, the Trial Court treated him as P.W.12.
27. The prosecution has also proved the following
documents during trial: -
(i) Signature of informant on typed report Exhibit-1
(ii) Post-mortem report Exhibit-2
(iii) Signature of I.O. on the forwarding Exhibit-3
note of the typed report the informant
(iv) Pagination on FIR by Bipin Kumar Exhibit-3/1
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
Thakur, S.H.O. Manjhagarh
(v) Signature of the informant on the Exbihit-3/2
typed report
(vi) Signature of Bipin Kumar Thakur at Exhibit-4
the bottom of the formal FIR
(vii) Viscera Report Exhibit-5
(viii) Typed report Exhibit-6
(ix) Protest Petition Exhibit-7
(x) Signature of the I.O. on inquest report Exhibit-8
28. On behalf of the defence, one Sahjad Gulrej, nephew
of accused Salamu Nesha was examined during trial on 11.01.2017.
29. Md. Mustafa (P.W.1) states in his deposition that the
daughter of Abdul Jabbar, namely, Sanjeeda Khatoon was married
to Nasruddin five years ago. He states that the occurrence took
place about one and a half years ago. At that time, he was at
Purnea. He came to know through his co-villagers that Sanjeeda
was being subjected to cruelty in her sasural for demand of dowry.
Her husband and his relatives killed her by administering poison in
the food and buried her body. The family members of the deceased
complained to the police where after the police exhumed her body
and sent it for post-mortem examination.
30. In cross-examination, Md. Mustafa states that
whatever he has stated is based on information he received from
other people. He states that Sanjeeda was blessed with two children
out of the wedlock. She died three and a half years after her
marriage. He admits that he had never visited the sasural of
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
Sanjeeda. He further admits that the financial condition of her
father is very weak. He also admits that prior to the marriage of
Sanjeeda, Nasruddin was already married. When his attention was
drawn to his statement made under Section 161 of the Cr.P.C
before the police, he admits that he had stated that Sanjeeda was
first taken to Gopalganj Sadar Hospital for treatment and when her
condition deteriorated, she was taken to Gorakhpur for better
treatment, but on way she died. He also admits that he had stated
before the police that after Sanjeeda died, her husband and in-laws
brought her body to Haradiyan from Gorakhpur and buried it in
Qabristan after Janaza prayer.
31. Md. Majummil Hussain (P.W.2) states in his
deposition that Sanjeeda was married to Nasruddin about five years
ago. She was not happy in her sasural. Her husband and in-laws
used to demand motorcycle. He came to know about her death
from others on 20.03.2007. He was told that her husband, father-in-
law and sister-in-law killed her by administering poison in the
food. Since the information of her death was received after three
days, he could not participate in her Janaza.
32. In cross-examination, he states that he is not aware as
to whether Sanjeeda was provided treatment at Gopalganj prior to
her death. He admits that he had never met Sanjeeda after she was
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
married to Nasruddin. He also admits that Sanjeeda was having two
children, one daughter (six months old) and one son (two years
old). He admits that since the financial condition of the informant
was not good, he had married his daughter to the son of his khalera
brother (mausera bhai), who was already married from before. He
admits that Sanjeeda's parents had not disclosed anything to him.
He states that he does not remember as to who told him about the
death of Sanjeeda.
33. Md. Habib (P.W.3) states in his deposition that he
came to know from others about the death of Sanjeeda. He states
that he was told that her death was caused by her husband, father-
in-law and sister-in-law by administering poison in her food.
34. In cross-examination, he states that Md. Sattar is his
samdhi. He admits that he was not present at the time of marriage
of Sanjeeda. He further admits that after the marriage of Sanjeeda,
he never met her. He states that father of Nasruddin, Md. Saddique
and Md. Jabbar are khalera brothers (mausera bhai). He admits
that he could not participate in the burial rituals of Sanjeeda. He
states that when the body of the deceased was exhumed, he was
present at the Qabristan.
35. In further cross-examination, after recall due to
alteration of charge, he states that he does not know the reason as
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
to why Sanjeeda was killed by administering poison. He further
admits that he has no personal knowledge about poisoning the
victim to death and he came to know about it from his co-villagers.
He also admits that he had never seen the accused persons
subjecting her to cruelty.
36. Abdul Jabbar (P.W.4) states in his deposition that
he is the informant of the case. On 20.03.2007, he got information
that his daughter has been killed by administering poison. On such
information, he went to the sasural of his daughter along with his
brother Abdul Sattar (not examined). On reaching Haradiyan, he
came to know that his daughter was killed by Nasruddin, Maqsood
Alam and Salamu Nesha three days ago by administering poison
and her body was buried on the same day without informing him.
He further states that the husband and father-in-law of the deceased
always used to demand motorcycle. He states that his daughter was
married on 10.08.2003. He proved his signature on the typed report
submitted to the police, which was marked as Exhibit-1. He states
that the police had exhumed the body of his daughter from
Qabristan and sent it for post-mortem examination.
37. In cross-examination, he admits that the accused
persons are his old relatives. He states that his cousin (mamera
bhai) Ekramul Haque (not examined) was the mediator in the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
marriage. He admits that he knew that his son-in-law was already
married earlier. He admits that his daughter and son-in-law always
used to visit his house and he also used to visit their house quite
frequently. He admits that his wife and another daughter had also
visited the matrimonial home of Sanjeeda when mother of
Nasruddin had died. He admits that his son-in-law runs a
readymade garment shop at Gopalganj where he frequently used to
visit. He states that he came to know about the death of his
daughter from his cousin Ekramul Haque, whose house is situated
at a distance of 50 yards from the house of Nasruddin. He states
that when he reached Haradiyan, both the children of his deceased
daughter were playing with their grandfather on a cot. He denies
the defence suggestion that he had been informed about the death
of his daughter and he along with his wife and daughter had
participated in her burial rites. He was shown a photograph and
was asked to identify the persons present therein to which he
replied that he is unable to identify them. Immediately thereafter,
he says that the photograph does not contain picture of his wife and
daughter. He denies the defence suggestion that he has lodged the
case because the accused persons failed to pay him Rs.5,00,000/-
and transfer a piece of plot demanded by him after the death of his
daughter.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
38. On recall, after alteration of charge, in further cross-
examination, he states that he has four daughters and had
knowingly married one of his daughters to Nasruddin, who was
already married from before, as he had no money. He states that at
the time of marriage, he had promised to give motorcycle after
some time. He admits that he had visited the matrimonial home of
his daughter about ten days prior to her death. He further admits
that after the marriage of his daughter and before her death no
panchayati had taken place. He also admits that before the death of
the deceased he had not lodged any complaint to the police or
before the court. He denies the defence suggestion that after the
death of his daughter he along with other family members had gone
to Haradiyan and participated in her burial rites and three days
thereafter lodged the case in order to extract money from the
accused persons. He also denies the defence suggestion that the
demand of dowry was never made by the accused persons.
39. Jamda Khatoon (P.W.5) states in her deposition that
her daughter Sanjeeda Khatoon was married to Nasruddin on
10.08.2003. At the time of marriage, Nasruddin and his father had
demanded Hero Honda motorcycle. As the demand was not
fulfilled, after persuasion, bidagri of her daughter was performed
and she was taken to her sasural. In her sasural, she was being
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
subjected to cruelty for demand of dowry. Later on, they killed her
daughter by administering poison in her food and even without
informing about her death, her body was buried. After few days of
her death when information was received, her husband and his
younger brother Abdul Sattar went to her sasural and brought her
both children, who now live at her home.
40. In cross-examination, she states that her daughter
frequently used to come to her maternal home from sasural, but
mostly she used to live in her sasural after marriage. She states that
Sanjeeda was in her maike when her first child was born. She states
that since her son-in-law was having extra marital relationship with
his sister-in-law Salamu Nesha, her daughter was not happy in her
sasural. In this regard, her daughter had told her earlier. She further
states that she came to know after three days of her death that she
consumed poison. She expressed her ignorance about any medical
treatment given to Sanjeeda before her death. She admits that
maike of her mother-in-law is in Haradiyan. She also admits that
the grandfather of Nasruddin is agnate of her mother-in-law. She
was shown a photograph, but she expressed her inability to identify
the pictures therein. She denies the defence suggestion that she had
information about death of her daughter and had participated in her
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
burial rituals and deliberately refused to identify the persons in the
photo, which was taken on that occasion.
41. In her cross-examination, on recall, she states that
once she had visited the sasural of Sanjeeda after three months of
her marriage. She admits that Sanjeeda did not make any complain
to her at that time.
42. Saukat Ali (P.W.6) is an advocate clerk. He states
that the formal FIR was drawn in the writing of the then S.H.O.
Bipin Kumar Thakur. He identifies his writing and signature on the
formal FIR, which was marked as Exhibit- 3/1.
43. In cross-examination, he states that the formal FIR
was not drawn in his presence.
44. Dr.Jamsedh Ahmad (P.W.7) was posted at Sadar
Hospital, Gopalganj on 21.03.2007 as Civil Assistant Surgeon. He
held the post-mortem examination on the body of the deceased at
4:45 PM on 21.03.2007 and found that the whole body was
decomposed and foul smell was emanating from it. He proved the
post-mortem report, which has been marked as Exhibit-2. A perusal
of the post-mortem report would indicate that the opinion regarding
cause of death was reserved pending forensic examination of
viscera.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
45. Ashutosh Kumar (P.W.8) states in his deposition
that on 21.03.2007 he was posted as S.H.O. of Thawe Police
Station. On that day, he received a typed report containing
signature of Abdul Jabbar, which was forwarded by him to the
S.H.O. of Manjhagarh Police Station for institution of FIR. He
identified his writing on the typed report, which was marked as
Exhibit-3. He proved the pagination done on the FIR by the S.H.O.
Manjhagarh, Bipin Kumar Thakur and signature of the informant
on the typed report, which were marked as Exhibits- 3/1 and 3/2
respectively. He also proved the signature of the S.H.O.
Manjhagarh Police Station on the formal FIR, which was marked
as Exhibit-4. He states that he inspected the place of occurrence
and recorded the subsequent statement of the informant and
witnesses, namely, Md. Muzammil Hussain, Md. Mustafa, Jayda
Khatoon, Md. Habib and Alamgir Ahmad. He exhumed the body of
the deceased Sanjeeda at Haradiyan from Qabristan in presence of
the B.D.O. and witnesses and prepared the inquest report. He sent
the body of the deceased Sanjeeda for post-mortem examination to
the Sadar Hospital, Gopalganj. He sent the viscera to the Forensic
Science Laboratory, Muzaffarpur through Constable Jitendra
Tiwary (not examined) after obtaining orders from the court of the
Chief Judicial Magistrate, Gopalganj. He submitted the charge-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
sheet against Nasruddin and kept the investigation open against
other accused persons. Subsequently, he submitted the
supplementary charge-sheet against Salamu Nesha. He states that
since the allegation against the accused Maqsood Alam was not
found true, he was not sent up for trial.
46. In cross-examination, the I.O. admits that on
21.03.2007 when he took up investigation, he recorded the
statement of the witnesses at the place of occurrence itself, He
admits that the mother of the deceased in her statement made under
Section 161 of the Cr.P.C stated that Sanjeeda Khatoon was unwell
and she died on way while being taken to Gorakhpur for treatment.
47. The I.O. further admits that Alamgir Ahmad stated
before him that on 15.03.2007 all on a sudden Sanjeeda became
sick. She was taken for treatment to Gopalganj Sadar Hospital on a
Bolero vehicle and from there she was taken to Gorakhpur for
better treatment but, she died on way. He further admits that in his
statement made under Section 161 of the Cr.P.C, Md. Naushad
stated that the deceased died during treatment. He admits that Md.
Naushad also stated that during treatment and burial rituals family
member of the deceased were present.
48. The I.O. admits that he did not investigate the case on
the point of treatment provided to the deceased before her death, as
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
disclosed to him by the witnesses. He admits that he did not
investigate on the point as to whether the parents and family
members of the deceased were present or not at the time of her
burial. He also admits that the place of occurrence is a joint house
of Moed Mian and Ishad Mian, but he did not record the statement
of the owners of the house. He admits that in the inquest report
there is no mention of any injury on the body of the deceased. He
denies the defence suggestion that he had conducted a faulty
investigation.
49. Md. Ayub (P.W.9) was posted as a technician in the
Forensic Science Laboratory, Muzaffarpur. He states that viscera of
the deceased was examined by Dr. U.K. Sinha. He also states that
he had assisted him in the examination. He proved signature of Dr.
U.K. Sinha on the viscera report, which was marked as Exhibit-5. A
perusal of Exhibit-5 would show that Aluminium Phosphide was
detected in the fluid, which is commercially known as Celphos and
is used as grain preservative and is highly poisonous.
50. In cross-examination, he admits that Dr. U.K. Sinha
had examined the viscera at his own level. He admits that he does
not know about the method of examination of viscera adopted by
him. He also admits that Dr. U.K. Sinha had not stated anything to
him regarding the method adopted for examination of viscera. He
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
states that Aluminium Phosphide remains in the body till the body
is not composed.
51. Ramakant Giri (P.W.10), a private typist in the Civil
Court, Gopalganj states in his deposition that he had typed the
report as instructed by the informant Abdul Jabbar, which has been
marked as Exhibit-6.
52. In cross-examination, he admits that he has no
knowledge about the veracity of the contents of the typed report
submitted to the police by Abdul Jabbar.
53. Pawan Kumar Singh (P.W.11) was examined twice
in this case, firstly, on 05.07.2013 and, secondly, on 29.07.2016,
when he was treated by the Trial Court as P.W.12. He is an
advocate clerk, who has proved the protest petition filed by the
informant, which has been marked as Exhibit-7 and the inquest
report, which has been marked as Exhibit-8.
54. In cross-examination, he admits that the inquest
report was not prepared before him and he has no knowledge of the
case.
55. After examination of the aforesaid witnesses, the
prosecution evidence was closed and the statements of the accused
persons were recorded under Section 313 of the Cr.P.C in the
manner indicated above. Thereafter, the defence examined its sole
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
witness Sahjad Gulrej, resident of village Saudali, P.S. Barauti,
District Gopalganj on 11.01.2017.
56. Sahjad Gulrej (D.W.1) states in his deposition that
Salamu Nesha is his aunt (bua). On 17.03.2017, he was at his
house. After receiving information, he took his bua on motorcycle
to Sadar Hospital, Gopalganj. At Gopalganj Sadar Hospital, his
uncle (fufa) Sk. Masruddin, his younger brother Nasruddin, father-
in-law of Nasruddin and his family members were present from
before. The wife of Nasruddin, who was ailing, was being provided
treatment in the hospital. Subsequently, she was referred to
Gorakhpur from Gopalganj Sadar Hospital for better treatment. He
states that he himself, Nasruddin and Nasruddin's father-in-law
took Sanjeeda to Gorakhpur in a vehicle, but on way she died.
Thereafter, her body was brought to Haradiyan and in presence of
the family members and relatives, burial rituals were performed.
He states that the photograph of the deceased was taken at the time
of burial rituals in which the mother and sister of the deceased can
be seen. He states that till that time, there was no grievance and
with their consent rituals were performed, but after 3-4 days of the
burial of the deceased, the FIR was instituted. He produced the
photograph and its negative, which were marked as Exhibits-B and
B/1 respectively with objection. He proved the signature of his fufa
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
on the typed application submitted by him to the Superintendent of
Police, Gopalganj regarding the actual facts of the case, which was
marked as Exhibit-A. He also proved the hospital registration
receipt of the deceased Sanjeeda issued by the Gopalganj Sadar
Hospital, which was marked as Exhibit-C.
57. In cross-examination, he states that when he reached
the hospital, Sanjeeda was in her senses. She was being
administered fluid. At about 5:00 PM, Sanjeeda was referred from
Gopalganj Sadar Hospital to Gorakhpur. They proceeded to
Gorakhpur for better treatment in a vehicle. He could not disclose
the name of the doctor, who treated Sanjeeda or the name of the
owner of the vehicle in which Sanjeeda was being taken from
Gopalganj to Gorakhpur. He admits that the photograph and
negative are undated and unsigned. He states that the photograph
was taken on 18.03.2007 at 4:00 PM. He states that in the
photograph on the right and left side of the body of the deceased
her mother and sister respectively can be seen. He denies the
suggestion made by the prosecution that the photograph presented
by him in the court was a result of technological trick. He denies
the suggestion that in the Gopalganj Sadar Hospital, mother and
father of the deceased were not present. He also denies the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
prosecution suggestion that Sanjeeda did not die due to illness and
her death was caused due to poisoning.
58. After the defence evidence was closed and the
arguments made on behalf of the parties were heard, the Trial Court
vide impugned judgment and order convicted and sentenced the
accused persons in the manner noted above.
59. Assailing the impugned judgment of conviction and
order of sentence, Mr. Ajay Kumar Thakur, learned counsel
appearing for the appellants submitted that in the report submitted
by the informant no date, month or year of the alleged demand of
Hero Honda Motorcycle has been given. He submitted that the
informant has also not stated any date, month or year of the alleged
cruelty by the accused persons in his report. He contended that
there is no allegation that soon before her death or within a
reasonable proximity of death either there was any demand from
the deceased for dowry or she was subjected to any kind of cruelty
for non-fulfillment of such demand.
60. Referring to the deposition of the witnesses, he
submitted that P.Ws. 1, 2 and 3 are hearsay witnesses. Their
evidence is completely vague. Similarly, P.W.4, the father of the
victim has also not stated a word in his evidence about torture to
the deceased by any of the accused. He has not stated that his
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
daughter ever told him when he visited her sasural or when she
visited naihar about alleged demand of dowry.
61. Mr. Thakur further contended that P.W.5 has made
vague allegation of demand and torture in her examination-in-chief.
However, she did not state that soon before death the victim was
subjected to cruelty for non-fulfillment of demand of dowry. He
contended that P.W.5 has introduced a new story in her evidence
that her son-in-law had illicit relationship with his sister-in-law
Salamu Nesha. He contended that none of the prosecution
witnesses is eye-witness to the alleged demand of motorcycle made
from the deceased. He argued that the falsity of the prosecution
case would be evident from the deposition of P.W.1, who had stated
before the police that when the deceased became critically ill on
20.3.2007 she was taken to Sadar Hospital Gopalganj where she
was treated and from there she was taken to Gorakhpur for better
treatment and she died on way and her body was buried as per
Muslim custom and rituals.
62. Referring to the deposition of the I.O. (P.W.8), Mr.
Thakur submitted that in his deposition the I.O. has admitted that
the mother of the deceased had stated in her statement that the
deceased was ill and she died while being taken to Gorakhpur for
treatment. He also admitted that he had recorded the statement of
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
Alamgir Ahmad and Naushad, who had stated that the victim died
due to ailment during treatment.
63. He further contended that the I.O. has admitted in his
deposition that the house in which the appellants and the deceased
were living together was a joint house of two families, but he has
not recorded the statement of other persons residing in the said
house.
64. He contended that the evidence of other witnesses
would not be admissible as far as the altered charges are concerned
simply because they were not produced by the prosecution for
further cross-examination after alteration of charge. He submitted
that the Trial Court has failed to appreciate the evidence on record
in correct perspective and has reached to an erroneous conclusion
while convicting and sentencing the accused persons.
65. He submitted that in the present case, the prosecution
has failed to establish that the death of the deceased was homicidal.
According to him, if the evidence of the witnesses examined on
behalf of the prosecution is considered, it would reveal that the
evidence is inconsistent with the theory of homicidal death.
66. He contended that in case of circumstantial evidence,
motive plays a crucial role and the prosecution has truly failed to
prove the case as to motive.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
67. Lastly, Mr. Thakur submitted that when two views
are possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the benefit
of doubt should be given to the accused.
68. Ms. Anukriti Jaipuriyar, learned advocate appointed
as amicus curiae in Death Reference No.1 of 2019 submitted that
P.Ws. 1 to 3 are hearsay witnesses, P.Ws. 4 and 5 are parents of the
deceased, P.Ws.6, 10 to 12 are formal witnesses, P.W.7 is the
medical officer, who conducted post-mortem examination and
reserved his opinion subject to viscera report, P.W.8 investigated
the case and P.W.9 is a technician, who has proved the expert report
submitted by Dr. U.K. Sinha. She contended that Ekramul Haque,
who informed the Informant about the death of the deceased, was
not examined. Similarly, Alamgir Ahmad and Naushad, whose
statements were recorded by the I.O. during investigation and, who
stated that the deceased died during treatment of her ailment, which
supports the case of the defence have not been examined during
trial. She contended that there is no evidence on record to show that
the deceased was subjected to cruelty for non-fulfillment of
demand of dowry or there was any illicit relationship between
appellants Nasruddin Mian @ Lalu @ Nasiruddin Ahmad and
Salamu Nesha. She contended that the evidence on record would
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
suggest that the deceased and her husband were happily married
since 10.08.2003 having two children - one daughter and one son.
The evidence would further suggest that they had cordial
relationship.
69. Learned amicus curiae submitted that the evidence of
the I.O. is very important in the case as he has admitted that the
deceased's mother told him that the deceased died on way while
she was being taken for treatment to Gorakhpur. She contended that
there is complete lack of legal evidence on the basis of which the
Trial Court could have recorded the finding of guilt against the
appellants.
70. Learned amicus curiae submitted that while passing
the impugned judgment, the Trial Court has completely ignored the
evidence adduced by the sole defence witness. His evidence
regarding treatment provided to the deceased at Sadar Hospital,
Gopalganj has not been challenged by the prosecution. The
registration receipt issued by the hospital in the name of the
deceased clearly shows that her husband and his relatives tried their
best to save her life. She contended that the deposition of D.W.1, if
read together with the deposition of the prosecution witnesses,
would clearly suggest that the accused persons had neither caused
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
homicidal death of the deceased nor had abated her to commit
suicide.
71. On the other hand, Mr. Dilip Kumar Sinha, learned
Additional Public Prosecutor appearing for the State submitted that
the prosecution has led cogent evidence in support of its case and
the Trial Court has correctly appreciated the facts and the law
involved in the case. He contended that the witnesses examined
during trial are truthful. The parents of the deceased (P.Ws.4 and 5)
have clearly stated in their evidence that their daughter Sanjeeda
Khatoon was married to Nasruddin Mian @ Lalu @ Nasiruddin
Ahmad on 10.08.2003 and at the time of bidagari, her husband and
father-in-law demanded a motorcycle. He contended that P.W.5 has
specifically stated in her evidence that her daughter had made
complaint that she was being subjected to cruelty due to non-
fulfillment of demand of motorcycle. He contended that there is no
illegality in the alteration of charge and all the relevant witnesses
were recalled by the court for further cross-examination after the
charge was altered. According to him, no prejudice has been caused
to the defence due to non-production of some of the witnesses after
the original charge was substituted by new charge under Sections
304-B and 302 of the IPC. He further contended that the Trial
Court has taken compassionate view against accused Salamu Nesha
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
in a gruesome case of murder in which she was actively involved
and has awarded her minimum sentence, i.e. life imprisonment. He
further contended that the accused Nasruddin Mian @ Lalu @
Nasiruddin Ahmad being husband of the deceased has rightly been
awarded death sentence in view of the materials on record.
72. Mr. Sinha, learned Additional Public Prosecutor
further submitted that there is no doubt that the appellant
Nasruddin being the husband of the deceased and the appellant
Salamu Nesha being sister-in-law of the deceased were staying
under the same roof and the viscera report suggests that the
deceased died due to poisoning. He submitted that Section 106 of
the Evidence Act would directly operate against them. He
contended that since the appellants were the persons living together
with the deceased, they had the special knowledge under what
circumstance she died and it was for them to explain as to how
Aluminium Phosphide was detected in the viscera of the deceased
sent for chemical examination.
73. I have given my anxious consideration to the rival
submissions and have carefully perused the evidence on record.
74. Before we enter on a consideration of the
submissions made by the learned counsel for the parties and the
learned amicus curiae, it is apposite to refer to the reasons, which
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
weighed with the Trial Court to convict the appellants. They read
as under :-
"42. Under the facts and circumstances and on
giving emphasis on the entire scenario of the case
from beginning to end is completely gone against the
accused persons and it falsified the defence of the
accused persons and no innocence attracted on the
part of the accused persons rather a serious
conspiracy and determination and mala fide
intention is clearly established against both the
accused leading to commit brutal murder of Indian
legal wedded wife due to non-fulfillment of desire
like asking a motorcycle in dowry demand. It also
gives a clear cut impact against the accused persons
that they are so cruel or 'बहसस दररिन्ददा' that he could not
spare own beloved wife, who has promised with her
while 'Nikah' was commenced that he will maintain
his legal wedded wife properly and look-after her
carefully without any complain and torture. He has
promised to lead happy conjugal life and an Indian
girl left her parental home keeping lot of believe and
faith upon a stranger to create 'अपनदा ससुनहरिदा ससंसदारि' and
enter into the matrimonial tie under the
commencement of ritual of 'Nikah' in presence of
'अलदाहतदालदा' in the name of Prophet Mohammad and
both made promise to save their life each-other, but
in this case, the accused-husband forgotten the
promise whatever promised while 'Nikah' took place
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
and he started committing torture to her beloved
wife. Not only this, the Deyadin, who ought to have
to save life of a lady, who has come leaving her
parental home at the instance of the fact that another
lady residing at her in-laws' house will save her
being a lady, but what happened her a lady being
Deyadin residing at her in-laws' house, she failed to
protect her, she involved actively with the accused-
husband of the deceased and made up a conspiracy
and made a mental set-up to kill her and both of the
accused made up a plan to kill her and as such, the
deceased was killed by administering poison in daily
meal. Thereafter, the circumstances itself reflects that
both the accused are not at all innocent rather, the
attitude and behavior which is very remarkable
human being goes completely against a person and
the overt-act and attitude committed against legal
wedded wife itself established and proved the
commission of crime of committing brutal murder of
Indian legal wedded wife by administering poison
due to non-fulfillment of dowry-demand and the
entire episode flashes light over the 'बहससपन एवसं दररिसंदगस'
of both the accused and they could not spare an
Indian legal wedded wife only because the father of
the deceased was not capable to fulfill the desire of
the accused and at the same time, 'यय कहदा जदानदा अततशययोतक
नहह हयोगदा तक अतभियसुक इतनय बहसस-दररिसंददा हह तक एक ब्यदाहतदा-सस कय हहँसतय-
खयलतय जसवन कयो एक मयोटरिसदाइकल सय भिस कम आहँ कदा औरि अपनस चदाहत पपूरिस कय
ललए उसकक जसवनलसलदा हस समदाप करि दस। ऐसय बहसस-दररिसंददा परि तकसस तरिह कक
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
सहदानसुभिपूतत तदखदानदा, खसुद कयो ईश्वरि कय बसंदय न समझनदा हयोगदा।' The act and
overt-act committed by the husband-accused and
Deyadin-accused, who has given strength clear-cut
towards commission of murder of a innocent Indian
legal wedded wife due to non-fulfillment of demand
of dowry even for a motorcycle, goes against pious
and God-fearing persons. Hence, both the accused
completely and seriously failed to establish their
innocence and accordingly, they are found clear-cut
guilty for commission of committing murder of the
deceased due to non-fulfillment of dowry-demand.
43. Having considered the facts and
circumstances of the case as well as discussion made
above, the case U/S 306 I.P.C. is not at all attracted
and established from any corner rather a clear cut
case of dowry-death U/Ss. 498A, 304B, 201 I.P.C. is
made out beyond the shadow of all reasonable
doubts.
44. It is pertinent to note that earlier the charge
was framed U/S 498A, 306, 201/34 I.P.C. Later on,
after completion of trial, this fact came into the
notice of the court that the deceased legal wedded
wife was committed murder due to administering
poison in her meal and on the basis of protest
petition and another petition, the prosecution made
approach to court to amend the charge by way of
addition and further, the charge was framed against
both of the accused U/S 498A, 304B, 302, 201/34
I.P.C. vide order sheet dated 23.05.2017. The
prosecution has further approached the court,
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
enlightening the fact that the deceased was not died
to her natural death then the court, to dispense with
justice, not the alive father rather extend justice to
the deceased and particularly ordered to dig the
grave of deceased and extract the corpse and
accordingly, the corpse of deceased was extracted
and postmortem was done and it was found from
P.M. Report and Viscera-report (Exhibit-2 and
Exhibit-5) as such the death was caused due to
poison. Ultimately, the real truth itself came out that
the deceased was committed murder by
administering poison in her meal. Inquest-report
(Exhibit-8), P.M. Report (Exhibit-2) and Viscera-
report (Exhibit-5) are available on record which are
well proved by oral witness adduced on behalf of
prosecution.
45. Under the facts and circumstances as well
as giving emphasis on the relevant documents
brought on the record on behalf of prosecution like,
Inquest-report, examination of Viscera of FSL and
other material as discussed above, earlier the
document filed and marked on behalf of defence do
not give any impact over the same as the same is not
at all relevant to disbelieve the case of the
prosecution. Since the case is very serious and come
under the purview of 'rarest of rare' as it came to
notice to the court of justice that the inference is very
well drawn towards pathetic story of the deceased on
being derived the conclusion as discussed above.
Hence, it is crystal clear that the case in hand is
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
related to corpse of the deceased Sanjeeda Khatoon
"cried under the graveyard to seek dispense of
justice from the court of justice."
46. Having considered the facts and
circumstances as well as giving anxious
consideration and on careful microscopic studies of
the oral evidence and the material available on
record and considering the argument of the ld.
counsel for the defence and prosecution, I find much
force in the submission of the prosecution towards
establishing the allegation leveled against both the
accused leading to committing murder of deceased
due to non-fulfillment of demand of dowry and with a
view to save their skin to screen the evidence,
deceased was hurriedly and hastily buried without
giving acknowledgement to any one and even the
parents of the deceased were completely deprived to
see the face of their beloved daughter.
47. Hence, the prosecution has completely
proved the charges U/Ss. 498A/304B/302/201/34 of
the I.P.C. against the accused no.1 Nasruddin Mian
@ Lallu and accused no.2 Salamu Nesha beyond the
shadow of all reasonable doubts. Accordingly, the
bail bonds of both the accused is being cancelled and
both of them are taken into judicial custody to be
appeared on 29-03-2019 for hearing on the point of
sentence."
75. Be it noted that while writing a judgment, a Judge is
required to keep certain basic rules in mind. The supreme require-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
ment of a judgment is reason, which is the rational to the conclu-
sion. Reasoning is the mental process through which a Judge
reaches to his conclusion. All conclusions should be supported by
reasons duly recorded. The finding of fact should be based on legal
testimony and should be based on legal grounds. Neither the finding
of fact nor the decision should be based upon wild suspicion, hypo-
thetical presumption, surmises and conjectures. Further, while com-
menting on the conduct of the parties, a Judge is required to be
careful to use sober and restrained language. He should avoid use of
disparaging and derogatory remarks against any person whose case
may be under consideration before him.
76. A Court while writing judgment has a onerous task of
being dispassionate in assessing the evidence. Indulging in trial and
error in arriving at a decision making tends to cloud the cognitive
space with the attendant cognitive biases. The clouded mind then
tends to fit in the causal chain to the prototypes based on biologi-
cally and socially evolved capacities; social pressures, individual
motivations and emotions. In making decision a judge is required to
avoid the intuitive/reflexive outcome based on the causal chain of
events available and focus on deliberative aspect of decision mak-
ing otherwise the judge would tend to draw illusory correlation be-
tween the chain of events and the reflexive outcome. The decision
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
making requires a certain level of motivation and cognitive capacity
of a judge. A well trained mind of a judge along with self realization
of the available biases occupying his cognitive space would help a
judge avoid the pit falls of heuristic and avoid distorted thinking
leading to a more balanced and rational outcome.
77. In Rathinam vs. State of T.N., since reported in
(2011) 11 SCC 140, the Supreme Court has highlighted the impor-
tance of dispassionate assessment of the evidence and a greater cau-
tion on the Court which must resist the tendency to look beyond the
fact in the following paragraphs:-
"23. We must, however, understand that a particu-
larly foul crime imposes a greater caution on the
court which must resist the tendency to look beyond
the file, and the insinuation that the rich are always
the aggressors and the poor always the victims, is
too broad and conjectural a supposition. It has been
emphasised repeatedly by this Court that a dispas-
sionate assessment of the evidence must be made and
that the Court must not be swayed by the horror of
the crime or the character of the accused and that
the judgment must not be clouded by the facts of the
case. In Kashmira Singh v. State of M.P. [AIR 1952
SC 159 : 1952 Cri LJ 839] it was observed as under:
(AIR p. 160, para 2)
"2. The murder was a particularly cruel
and revolting one and for that reason it
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
will be necessary to examine the evidence
with more than ordinary care lest the
shocking nature of the crime induce an in-
stinctive reaction against a dispassionate
judicial scrutiny of the facts and law."
24. Likewise in Ashish Batham v. State of M.P.
[(2002) 7 SCC 317 : 2002 SCC (Cri) 1718] it was
observed thus: (SCC p. 327, para 8)
"8. Realities or truth apart, the funda-
mental and basic presumption in the ad-
ministration of criminal law and justice
delivery system is the innocence of the al-
leged accused and till the charges are
proved beyond reasonable doubt on the
basis of clear, cogent, credible or unim-
peachable evidence, the question of in-
dicting or punishing an accused does not
arise, merely carried away by the heinous
nature of the crime or the gruesome man-
ner in which it was found to have been
committed. Mere suspicion, however
strong or probable it may be is no effec-
tive substitute for the legal proof required
to substantiate the charge of commission
of a crime and graver the charge is,
greater should be the standard of proof
required. Courts dealing with criminal
cases at least should constantly remember
that there is a long mental distance be-
tween 'may be true' and 'must be true'
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
and this basic and golden rule only helps
to maintain the vital distinction between
'conjectures' and 'sure conclusions' to be
arrived at on the touchstone of a dispas-
sionate judicial scrutiny based upon a
complete and comprehensive appreciation
of all features of the case as well as qual-
ity and credibility of the evidence brought
on record."
78. The judgment under consideration is an example of
how not to write a judgment. It has repeatedly been emphasized by
the Supreme Court that the Courts and Judges must make a dispas-
sionate assessment of evidence and that the Courts and Judges
should not be swayed by the horror of crime and the character of the
person. The judgment should be made by a Judge uninfluenced by
his own imagined norms of the functioning of the society.
79. The Trial Court ought to have avoided the sweeping
and disparaging remarks made in para 42 of its judgment regarding
the conduct of the appellants.
80. I fail to see as to how the Trial Court held in para 44
of its judgment that the charge was framed against the appellants
under Section 498-A of the IPC after the informant filed an
application for addition to the original charge. The order dated
08.05.2017 passed by the Trial Court, which has been extracted
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
hereinabove, would clearly show that the original charge under
Sections 498-A, 306 and 201/34 of the IPC was altered to Sections
304-B, 302 and 201/34 of the IPC. The trial court did not allow the
prayer of the informant regarding addition of Sections 304-B and
302 of the IPC to the original charge already framed against them
meaning thereby that due to alteration of the original charge vide
order dated 08.05.2017, the charge under Sections 498-A and 306
became non-existent.
81. As a matter of fact, for all practical purposes, after
alteration of the charge, the appellants were being tried only for the
offences punishable under Sections 304-B, 302 and 201/34 of the
IPC.
82. Surprisingly, in para 43 of the judgment, the Trial
Court held that the case under Section 306 of the IPC is not made
out. After alteration of charge, since there was no charge under
Section 306 of the IPC, there was no occasion for the Trial Court to
have recorded such finding in respect of Section 306 of the IPC.
83. Evidently, while passing the impugned judgment, the
Trial Court had misconceived that the appellants were also being
tried for the original charge framed under Sections 498-A and 306
of the IPC.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
84. While saying so, I am mindful of the judgment of the
Supreme Court in Shanti Vs. State of Haryana, since reported in
(1991) 1 SCC 371, wherein it has been held that Sections 304-B
and 498-A of the IPC are not mutually exclusive. They deal with
two distinct offences. A person charged and acquitted under Section
304-B of the IPC can be convicted under Section 498-A of the IPC
without charge being framed, if such a case is made out. But from
the point of view of practice and procedure and to avoid technical
defects, it is necessary in such cases to frame charges under both
the sections and if the case is established against the accused, they
can be convicted under both the Sections but no separate sentence
need be awarded under Section 498-A in view of the substantive
sentence being awarded for the major offence under Section 304-B.
85. However, in the present case, the Trial Court has not
only convicted and sentenced the appellants for the offence
punishable under Section 498-A of the IPC under which effectively
they were not charged, but also convicted and sentenced them for
the offence punishable under Section 304-B of the IPC.
86. Now coming to the issue of recall of witnesses after
alteration of charge, it is necessary to refer to Sections 216 and 217
of the Cr.P.C :-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
"216. Court may alter charge.--(1) Any Court may
alter or add to any charge at any time before judgment
is pronounced.
(2) Every such alteration or addition shall be read
and explained to the accused.
(3) If the alteration or addition to a charge is such
that proceeding immediately with the trial is not likely,
in the opinion of the Court, to prejudice the accused in
his defence or the prosecutor in the conduct of the case,
the Court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.
(4) If the alteration or addition is such that pro-
ceeding immediately with the trial is likely, in the opin-
ion of the Court, to prejudice the accused or the prose-
cutor as aforesaid, the Court may either direct a new
trial or adjourn the trial for such period as may be nec-
essary.
(5) If the offence stated in the altered or added
charge is one for the prosecution of which previous
sanction is necessary, the case shall not be proceeded
with until such sanction is obtained, unless sanction
has been already obtained for a prosecution on the
same facts as those on which the altered or added
charge is founded.
217. Recall of witnesses when charge altered.--
Whenever a charge is altered or added to by the Court
after the commencement of the trial, the prosecutor and
the accused shall be allowed--
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
(a) to recall or re-summon, and examine with refer-
ence to such alteration or addition, any witness
who may have been examined, unless the Court,
for reasons to be recorded in writing, considers
that the prosecutor or the accused, as the case
may be, desires to recall or re-examine such wit-
ness for the purpose of vexation or delay or for
defeating the ends of justice;
(b) also to call any further witness whom the Court
may think to be material."
87. Sub-section (3) of Section 216 of the Cr.P.C provides
that if the alteration or addition to a charge does not cause preju-
dice to the accused in his defence or the prosecutor in the conduct
of the case, the Court may proceed with the trial as if the additional
or altered charge is the original charge. Sub-section (4) thereof
contemplates a suggestion where alteration or addition of charge
will prejudice the accused and empowers the Court to either direct
a new trial or adjourn the trial for such period as may be necessary
to delay the prejudice likely to be caused to the accused. It is the
duty on the part of the Court to see that no prejudice is caused to
the accused and he is allowed to have a fair trial.
88. Section 217 of the Cr.P.C deals with recall of wit-
nesses in case of alteration of charge. It allows the prosecutor and
the accused to recall, re-summon and examine any witness who
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
may have been examined with reference to alteration or addition of
charge. The court is, however, required to ensure that calling of
witnesses is only for meeting the ends of justice and not to vitiate
the purpose of trial or delay the proceeding.
89. The provisions prescribed under Sections 216 and
217 of the Cr.P.C require the court to ensure that no prejudice is
caused to the accused in the event of addition or alteration of
charge and he is provided with a fair trial.
90. In CBI v. Karimullah Osan Khan, since reported in
(2014) 11 SCC 538, the Supreme Court dealt with a case where an
application was filed under Section 216 of the Cr.P.C during the
course of trial for addition of charge against the appellant under
various provisions of the IPC, Explosive Substances Act and the
Terrorists and Disruptive Activities (Prevention) Act, 1987. The
Supreme Court held as under: -
"17. Section 216 CrPC gives considerable power to
the trial court, that is, even after the completion of
evidence, arguments heard and the judgment
reserved, it can alter and add to any charge, subject
to the conditions mentioned therein. The expressions
"at any time" and before the "judgment is
pronounced" would indicate that the power is very
wide and can be exercised, in appropriate cases, in
the interest of justice, but at the same time, the courts
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
should also see that its orders would not cause any
prejudice to the accused."
91. In R. Rachaiah Vs. Home Secy., Bangalore, since
reported in (2016) 12 SCC 172, in which charge sheet was filed by
the police after investigation under Sections 306 and 365 read with
Section 34 of the IPC against the accused persons, the trial
proceeded on the basis of the charge. In all, 27 witnesses were
examined on behalf of the prosecution. When P.W.26 was
examined, an application was filed by the prosecution under
Section 216 of the Cr.P.C for framing of additional charge under
Section 302 of the IPC. The objections raised by the accused
persons were rejected and the Trial Court framed alternative charge
under Section 302 of the IPC read with Section 34 of the IPC. The
Trial Court convicted the accused persons under Section 302 read
with Section 34 of the IPC and also under Section 364 read with 34
of the IPC meaning thereby that the appellants were not convicted
of the original charge framed either under Section 306 or Section
365 of the IPC. They were convicted in respect of alternative
charge under Section 302 of the IPC. Further, the other offence for
which they were charged was under Section 365 of the IPC, but the
conviction was recorded under Section 364 IPC on the ground that
even when the charge framed was under Section 365 of the IPC,
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
the evidence produced by the prosecution shows existence of all
ingredients of Section 364 of the IPC. The appellants filed appeal
before the High Court against the said conviction taking a plea to
the effect that there could not have been any conviction under
Section 302 of the IPC. It was also pleaded that the alternative
charge under Section 302 of the IPC was wrongly framed without
following the procedure under Sections 216 and 217 of the Cr.P.C.
Therefore, the entire trial under Section 302 of the IPC stood
vitiated. It was also argued that there could not have been any
conviction under Section 302 of the IPC in absence of any specific
charge under this Section. The High Court dismissed the appeal.
92. The accused persons moved before the Supreme
Court. The Supreme Court while referring to Sections 216 and 217
of the Cr.P.C held as under: -
"10. The bare reading of Section 216 reveals that
though it is permissible for any court to alter or add to
any charge at any time before judgment is pronounced,
certain safeguards, looking into the interest of the
accused person who is charged with the additional
charge or with the alteration of the additional charge,
are also provided specifically under sub-sections (3)
and (4) of Section 216 of the Code. Sub-section (3), in
no uncertain term, stipulates that with the alteration
or addition to a charge if any prejudice is going to be
caused to the accused in his defence or the prosecutor
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
in the conduct of the case, the Court has to proceed
with the trial as if it altered or added the original
charge by terming the additional or alternative
charge as original charge. The clear message is that it
is to be treated as charge made for the first time and
trial has to proceed from that stage. This position
becomes further clear from the bare reading of sub-
section (4) of Section 216 of the Code which empowers
the Court, in such a situation, to either direct a new
trial or adjourn the trial for such period as may be
necessary. A new trial is insisted if the charge is
altogether different and distinct.
11. Even if the charge may be of same species, the
provision for adjourning the trial is made to give
sufficient opportunity to the accused to prepare and
defend himself. It is, in the same process, Section 217
of the Code provides that whenever a charge is altered
or added by the court after the commencement of the
trial, the prosecutor as well as the accused shall be
allowed to recall or re summon or examine any
witnesses who have already been examined with
reference to such alteration or addition. In such
circumstances, the court is to even allow any further
witness which the court thinks to be material in regard
to the altered or additional charge.
12. When we apply the aforesaid principles to the facts
of this case, the outcome becomes obvious...."
(emphasis mine)
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
93. In R. Rachaiah (Supra), the Supreme Court further
held as under: -
"14. In a case like this, with the framing of
alternative charge on 30-9-2006, testimony of those
witnesses recorded prior to that date could even be
taken into consideration. It hardly needs to be
demonstrated that the provisions of Sections 216 and
217 are mandatory in nature as they not only sub
serve the requirement of principles of natural justice
but guarantee an important right which is given to the
accused persons to defend themselves appropriately
by giving them full opportunity. Cross-examination of
the witnesses, in the process, is an important facet of
this right. Credibility of any witness can be
established only after the said witness is put to cross-
examination by the accused person.
15. In the instant case, there is no cross-examination
of these witnesses insofar as charge under Section
302 IPC is concerned. The trial, therefore, stands
vitiated and there could not have been any conviction
under Section 302 IPC.
16. Though, in the given case, it would be doubtful as
to whether the appellants can now be convicted under
Section 306 IPC as we, prima facie, find that the
charge under Section 302 was in substitution of the
earlier charge under Section 306 as both the charges
cannot stand together. (See Sangaraboina
Sreenu v. State of A.P. [Sangaraboina Sreenu v. State
of A.P., (1997) 5 SCC)"
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
94. In the instant case, though the original charge under
Sections 498-A and 306 of the IPC was substituted by much graver
offences under Sections 302 and 304-B of the IPC, the prosecution
produced only P.Ws. 1, 3, 4 and 5 before the court for further
cross-examination in spite of the fact that a prayer was made on
behalf of the appellants before the Trial Court to recall all the
witnesses examined earlier after the alteration of charge and the
same was allowed. Surprisingly, after examining the aforesaid four
witnesses, the prosecution filed a petition that it did not want to
recall other witnesses and the Trial Court closed the prosecution
evidence.
95. Now, the question would arise as to whether
withholdment of P.W.2 and P.Ws.6 to 12 after the charge was
altered has caused any prejudice to the appellants.
96. In the facts and circumstances of the case, the
mandate of the provisions prescribed under Sections 216 and 217
of the Cr.P.C and the law laid down by the Supreme Court in CBI
v. Karimullah Osan Khan (Supra) and R. Rachaiah (Supra), I
have no hesitation in concluding that since the altered charge was
for graver offences under Sections 302 and 304-B of the IPC, the
withholdment of the aforesaid witnesses from further cross-
examination has certainly caused prejudice to the accused persons.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
They have been deprived from cross-examining those witnesses in
respect of the substituted charge. I am also of the opinion that their
deposition cannot form basis for arriving at the conclusion of guilt
for the offences punishable under Sections 304-B and 302 of the
IPC.
97. Leaving apart the aforesaid legal position, this Court
would like to appreciate the entire material including the
prosecution evidence, as has been brought on record to see as to
whether the charge brought against the appellants was proved
before the Trial Court beyond doubt.
98. We have seen that the appellants have been charged by
the Trial Court for the offences punishable under Sections 302 and
304-B of the IPC separately. The charge under Section 304-B of
the IPC is not an alternative charge to Section 302 of the IPC.
99. Insofar as the conviction of the appellants under
Section 302 of the Indian Penal Code is concerned, it would appear
from the record that there is complete lack of direct evidence of
murder of the deceased. The conviction of the appellants is purely
based on circumstantial evidence. The circumstantial evidence is
direct evidence of a fact from which a person may reasonably infer
the existence or non-existence of another fact. A person's guilt of a
charged crime may be proved by circumstantial evidence if that
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
evidence, while not directly establishing guilt, gives rise to an
inference of guilt beyond a reasonable doubt. Thus, the
circumstantial evidence is evidence of circumstances which can be
relied upon not as proving a fact directly, but instead as pointing to
its existence. In every case based on circumstantial evidence, the
question that needs to be determined is whether the circumstances
relied upon by the prosecution are proved by reliable and cogent
evidence and whether all the links in the chain of circumstance are
complete so as to rule out the possibility of innocence of the
accused.
100. Undoubtedly, the conviction can be based solely on
circumstantial evidence, but it should be tested on the touchstone
of the law relating to proof beyond reasonable doubt.
101. The law relating to conviction on the basis of
circumstantial evidence has been delineated by the Supreme Court
in Sharad Birdhichand Sarda vs. State of Maharashtra since
reported in (1984) 4 SCC 116 in paras 153 and 154 as under:-
"153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of Maharash-
tra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973
Crl LJ 1783] where the observations were made:
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from
sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other hypoth-
esis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion con-
sistent with the innocence of the accused and must show
that in all human probability the act must have been
done by the accused.
154. These five golden principles, if we may say so, con-
stitute the panchsheel of the proof of a case based on
circumstantial evidence."
102. In C. Chenga Reddy and Others Vs. State of Andhra
Pradesh, since reported in (1996) 10 SCC 193, the Supreme Court
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
while dealing with a case based on circumstantial evidence in para
21 held as under: -
"21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature. More-
over, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In the present
case the courts below have overlooked these settled
principles and allowed suspicion to take the place of
proof besides relying upon some inadmissible evi-
dence."
103. After referring to a catena of cases based on circum-
stantial evidence in Shivu and Others Vs. Registrar General,
High Court of Karnataka and Another, since reported in 2007 (4)
SCC 713, the Supreme Court held in para 12 as under: -
"12. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be in-
compatible with the innocence of the accused or the guilt
of any other person. (See Hukam Singh v. State of Ra-
jasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR
1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 :
AIR 1983 SC 446] , State of U.P. v. Sukhbasi [1985 Supp
SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] ,
Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 :
1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Ku-
mar Chatterjeev. State of M.P. [1989 Supp (1) SCC 560 :
1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circum-
stances from which an inference as to the guilt of the ac-
cused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with
the principal fact sought to be inferred from those cir-
cumstances. In Bhagat Ram v. State of Punjab [AIR 1954
SC 621 : 1954 Cri LJ 1645] it was laid down that where
the case depends upon the conclusion drawn from cir-
cumstances, the cumulative effect of the circumstances
must be such as to negative the innocence of the accused
and bring home the offences beyond any reasonable
doubt.
104. In Padala Veera Reddy Vs. State of Andhra Pradesh
and Others, since reported in 1989 Supp (2) SCC 706, the
Supreme Court laid down that in a case of circumstantial evidence,
the evidence must satisfy the following tests:-
"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly estab-
lished;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the con-
clusion that within all human probability the crime was
committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain con-
viction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the
guilt of the accused but should be inconsistent with his
innocence."
105. In the light of these guiding principles, we should
now consider the circumstances of the present case.
106. The appellant Nasruddin was married to the deceased
on 10.08.2003. Though, there is allegation of demand of a motor-
cycle at the time of marriage and also subsequent to the marriage
against the appellant Nasruddin and his father, there is no cogent
evidence on behalf of the prosecution in this regard. It is an admit-
ted case of the prosecution that out of the marriage, the deceased
was blessed with two children. They had cordial relationship would
also become evident from the evidence of PW-4 and PW-5, who
are father and mother respectively of the deceased. Both of them
have admitted in their evidence that the deceased along with her
husband (appellant Nasruddin) used to visit her maternal home fre-
quently. The father of the deceased (PW-4) has admitted in his evi-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
dence that he also used to frequently visit the matrimonial home of
his deceased daughter and the readymade garment shop of his son-
in-law at Gopalganj. He has admitted to the extent that even ten
days prior to the death of his daughter, he has visited her matrimo-
nial home. Both the parents have admitted that the deceased had
never lodged any complaint to the police or before the court re-
garding subjecting her to cruelty for non-fulfillment of demand of
motorcycle.
107. The evidence on record would indicate that the de-
ceased fell sick on 17.03.2017 and was taken to Gopalganj Sadar
Hospital and when her condition deteriorated, she was referred to
Gorakhpur for better treatment. The husband of the deceased and
other family members took steps to take her to Gorakhpur, but she
died while being taken to Gorakhpur. These facts would be evident
from the deposition of PW-1 and the I.O. of the case. The I.O. has
admitted in cross-examination that the mother of the deceased
(PW-5), Alamgir Ahmad (not examined) and Md. Naushad (not ex-
amined) stated before him in their statement recorded under Sec-
tion 161 of the CrPC that the deceased was unwell and was treated
at Gopalganj and while being taken to Gorakhpur for better treat-
ment she died. The sole defence witness has supported the afore-
said assertion made by PW-1. In this regard, DW-1 has proved the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
hospital registration receipt of the deceased issued by Gopalganj
Sadar Hospital. The hospital registration receipt supports the case
of the defence that on the fateful day, she was treated in Gopalganj
Sadar Hospital. The hospital registration receipt produced and ex-
hibited on behalf of the defence has not been disputed by the pros-
ecution in cross-examination. These facts would clearly establish
the conduct of the accused persons which would relevant under
Section 8 of the Indian Evidence Act. The evidence on record
shows that the accused persons tried their best to save the life of
the deceased when she was ailing.
108. The Medical Officer (PW-7), who conducted the
postmortem examination after the body was exhumed from the
Qabristan, reserved his opinion subject to viscera report. He only
stated about foul smell emanating from the decomposed body of
the deceased. There are no marks on the body, which would sug-
gest violence and struggle. The FIR was registered inter alia under
Section 306 of the IPC. After completion of investigation also, the
police submitted charge sheet under Sections 498-A, 306 and
201/34 of the IPC. Initially, the charge was also framed under the
aforesaid provisions under which the police had submitted charge-
sheet against the appellants. All the prosecution witnesses were ex-
amined during trial on the basis of aforesaid charge. However, after
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
all the witnesses were examined during trial, the charge was altered
to Sections 302, 304-B and 201/34 of the IPC by the Trial Court
and, thereafter, only PWs 1, 3, 4 and 5 were recalled for further
cross-examination.
109. Thus, right from the beginning till the conclusion of
investigation, the investigating agency did not find any material in
support of homicidal death of the deceased. It was only after all the
witnesses were examined during trial, the Trial Court altered the
charge.
110. Thus, the issue is as to whether there was any mate-
rial to support the prosecution case that the death of the deceased
was homicidal.
111. The prosecution has argued that since the viscera re-
port exhibited by PW-9, a forensic lab technician, confirms that the
fluid contained Aluminium Phosphide, it was a case of murder and
not of suicide. The prosecution has also argued that since the de-
ceased died in her matrimonial home within the four walls of a
house, it was for the accused persons to establish that the death was
not homicidal in view of Section 106 of the Indian Evidence Act.
112. Section 106 of the Indian Evidence Act embodies the
rule that when any fact is especially within the knowledge of any
person, the burden of proving that, is upon him.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
113. Apparently, Section 106 of the Evidence Act, there-
fore, requires understanding the burden of proof. The burden of
proof as envisaged under Section 101 of the Indian Evidence Act
requires the person to prove the existence of fact which he had as-
serted. Section 106 is an exception to the general rule so laid down
under Section 101 of the Indian Evidence Act.
114. The burden to prove the guilt of the accused is al-
ways on the prosecution and the burden never shifts. Section 106
does not relieve the prosecution of its initial burden. On the con-
trary, it is designed to meet certain exceptional cases on which it
would be impossible, or at any rate disproportionately difficult, for
the prosecution to establish facts which are especially within the
knowledge of the accused or which he could prove without any dif-
ficulty or inconvenience.
115. In Sawal Das vs. State of Bihar since reported in
1974 (4) SCC 193, the Supreme Court explained the principle un-
derlying Section 106 of the Indian Evidence Act as under: -
"10. Neither an application of Section 103 nor of 106
of the Evidence Act could, however, absolve the pros-
ecution from the duty of discharging its general or
primary burden of proving the prosecution case be-
yond reasonable doubt. It is only when the prosecu-
tion has led evidence which, if believed, will sustain a
conviction, or, which makes out a prima facie case,
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
that the question arises of considering facts of which
the burden of proof may lie upon the accused."
116. In Subramanian vs. State of Tamil Nadu since re-
ported in 2009 (14) SCC 415, the Supreme Court had occasion to
consider a case of the husband and wife remaining within the four
walls of the house and death of the wife took place. In para 23 of
the judgment, the Supreme Court observed as under: -
"23. So far as the circumstance that they had been liv-
ing together is concerned, indisputably, the entirety of
the situation should be taken into consideration. Ordi-
narily when the husband and wife remained within the
four walls of a house and a death by homicide takes
place it will be for the husband to explain the circum-
stances in which she might have died. However, we
cannot lose sight of the fact that although the same may
be considered to be a strong circumstance but that by
alone in absence of any evidence of violence on the de-
ceased cannot be held to be conclusive. It may be diffi-
cult to arrive at a conclusion that the husband and hus-
band alone was responsible therefor."
117. Thus, it is well settled that Section 106 of the Indian
Evidence Act does not directly operate against either a husband or
wife staying in the same room.
118. Section 106 of the Indian Evidence Act does not ab-
solve the prosecution from discharging its general and primary bur-
den of proving the case beyond reasonable doubt. It is only when
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
the prosecution has led evidence which, if believed, will sustain a
conviction, or, which makes out a prima facie case, that the ques-
tion would arise of considering facts of which the burden of proof
may lie upon the accused.
119. In the present case, the prosecution has even failed to
prove beyond reasonable doubt that the death was homicidal.
120. Moreover, the I.O. has admitted in his evidence that
the deceased was living in a joint house belonging to two agnates
namely, Mohit Mian and Ishad Mian. He has stated that he has not
recorded statements of the family members of the agnates of the
accused persons. Hence, it is not a case where the appellants and
the deceased alone were living within the four walls of the house
and death of the wife took place rather several persons of two fam-
ilies were living together in that house and the I.O. admittedly did
not record statement of anyone during investigation.
121. Furthermore, even mother of the deceased (PW-5)
admitted in cross-examination that she had come to know that the
deceased had consumed poison after three days of her death. There
is complete derth of evidence to prove the prosecution case that the
appellants were responsible for the felonious administration of poi-
son which caused death.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
122. In view of the discussions made above, I am of the
opinion that in the present case, the prosecution has failed to prove
the fact that the consumption of poison by the deceased was a fact
within the special knowledge of the appellants and, therefore, the
principle underlying under Section 106 of the Indian Evidence Act
would not apply.
123. Since it is a case of circumstantial evidence, proof of
motive would be an important corroborative piece of evidence. If
motive is indicated and proved, it would strengthen the probability
of the commission of the offence. The motive relied on by the
prosecution is ill-treatment by the appellants meted out to the de-
ceased for non-fulfillment of demand of motorcycle and the illicit
relationship between the appellant Nasruddin and Salamu Nesha.
However, the evidence on record does not show any proof that the
deceased was ever subjected to cruelty for demand of dowry or
there was illicit relationship between the appellants.
124. I am of the considered view that the prosecution has
utterly failed to prove the motive beyond doubt. Thus, an important
thing to complete the chain of circumstances is totally absent in the
present case.
125. The medical evidence and the forensic evidence, as
discussed above, do not prove beyond reasonable doubt that it was
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
a case of homicidal death. I am of the considered view that in the
absence of legally admissible evidence, the trial court has con-
victed the appellants under Section 302 of the IPC merely on moral
ground, as the wife of the appellant Nasruddin had died in her mat-
rimonial home.
126. In so far as the conviction of the appellant under
Section 304-B of the IPC is concerned, it would be pertinent to
analyze the law on dowry death. Section 304-B of the IPC, which
defines and provides the punishment for dowry death, reads as
under: -
"304-B. Dowry death.--(1) Where the death of a
woman is caused by any burns or bodily injury or oc-
curs otherwise than under normal circumstances
within seven years of her marriage and it is shown
that soon before her death she was subjected to cru-
elty or harassment by her husband or any relative of
her husband for, or in connection with, any demand
for dowry, such death shall be called "dowry death",
and such husband or relative shall be deemed to have
caused her death.
Explanation-- For the purpose of this sub-section,
"dowry" shall have the same meaning as in Section 2
of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be pun-
ished with imprisonment for a term which shall not be
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
less than seven years but which may extend to impris-
onment for life." (emphasis mine)
127. A perusal of Section 304-B of the IPC clearly
demonstrates that if a married woman dies otherwise than under
normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband in
connection with any demand for dowry, such death shall be called
dowry death, and such husband or relative would be deemed to
have caused her death.
128. In Major Singh Vs. State of Punjab, since reported
in (2015) 5 SCC 201, a three-Judge Bench explained the condition
precedent for sustaining the conviction under Section 304-B of the
IPC in para 10 as under :-
"10. To sustain the conviction under Section 304-B
IPC, the following essential ingredients are to be es-
tablished:
(i) the death of a woman should be caused by
burns or bodily injury or otherwise than under a
'normal circumstance';
(ii) such a death should have occurred within
seven years of her marriage;
(iii) she must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
(iv) such cruelty or harassment should be for or
in connection with demand of dowry; and
(v) such cruelty or harassment is shown to have
been meted out to the woman soon before her
death."
129. Section 113-B of the Evidence Act provides for
presumption as to dowry death. It reads as under: -
"113B. Presumption as to dowry death-- When the
question is whether a person has committed the
dowry death of a woman and it is shown that soon
before her death such woman has been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court
shall presume that such person had caused the dowry
death.
Explanation-- For the purposes of this section,
"dowry death" shall have the same meaning as in
section 304B, of the Indian Penal Code, (45 of
1860)."
130. As per the definition of dowry death in Section 304-
B of the IPC and the presumption provided under Section 113-B of
the Evidence Act, one of the essential ingredients amongst others is
that the woman concerned must have been subjected to cruelty or
harassment "soon before" her death in connection with the demand
of dowry.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
131. In Bakshish Ram v. State of Punjab, since reported
in (2013) 4 SCC 131, while interpreting the provisions prescribed
under Section 113-B of the Evidence Act and Section 304-B of the
IPC, the Supreme Court observed as under: -
"19. As discussed above, a perusal of Section 113-B
of the Evidence Act and Section 304-B IPC shows that
there must be material to show that soon before her
death the victim was subjected to cruelty or
harassment. In other words, the prosecution has to
rule out the possibility of a natural or accidental
death so as to bring it within the purview of "death
occurring otherwise than in normal circumstances".
The prosecution is obliged to show that soon before
the occurrence, there was cruelty or harassment and
only in that case presumption operates. As observed
earlier, if the alleged incident of cruelty is remote in
time and has become stale enough not to disturb the
mental equilibrium of the woman concerned, it would
be of no consequence. In the case on hand,
admittedly, the prosecution heavily relied on the only
evidence of Sibo (PW 2), the mother of the deceased
which, according to us, is a hearsay, in any event, a
very general and vague statement which is not
sufficient to attract the above provisions. In such
circumstances, as argued by the learned counsel for
the appellants, accidental death cannot be ruled out.
20. Another relevant aspect to be noted is that it was
Appellant 1, husband of the deceased who took the
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
deceased to the hospital and it was he who informed
the police as well as parents of the deceased. It is also
brought to our notice that he did not make any
attempt to run away from the place of occurrence."
132. In M. Srinivasulu Vs. State of A.P., since reported in
(2007) 12 SCC 443, the Supreme Court observed as under: -
"The presumption shall be raised only on proof of the
following essentials:
(1) The question before the court must be whether the
accused has committed the dowry death of a woman.
(This means that the presumption can be raised only
if the accused is being tried for the offence under
Section 304-B IPC.)
(2) The woman was subjected to cruelty or
harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her
death."
133. Recently, a three-judge Bench of the Supreme Court in
Satbir Singh Vs. State of Haryana, since reported in 2021 SCC
OnLine SC 404, while interpreting the phrase "soon before" used
in Section 304-B of the IPC observed : "Being a criminal statute,
generally it is to be interpreted strictly. However, where strict
interpretation leads to absurdity or goes against the spirit of
legislation, the courts may in appropriate cases place reliance
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
upon the genuine import of the words, taken in their usual sense to
resolve such ambiguities."
134. In Satbir Singh (Supra), the Supreme Court further
observed: "Considering the significance of such a legislation, a
strict interpretation would defeat the very object for which it was
enacted. Therefore, it is safe to deduce that when the legislature
used the words, "soon before" they did not mean "immediately
before". Rather, they left its determination in the hands of the
courts."
135. The Supreme Court further observed: "What is
pivotal to the above determination, is the establishment of a
"proximate and live link" between the cruelty and the
consequential death of the victim."
136. The Supreme Court ruled that when the prosecution
establishes such proximate and live link presumption of causation
arises against the accused under Section 113-B of the Evidence
Act.
137. Coming back to the evidence in the present case, we
have seen that though it is alleged in the FIR that a Hero Honda
motorcycle was demanded by the accused Nasruddin and his father
at the time of marriage and after persuasion bidagari of the
daughter of the informant could be possible. It is also alleged that
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
in the sasural, the husband, sister-in-law and the father-in-law used
to torture her for motorcycle. However, no date, month or year of
alleged demand or alleged torture after the marriage has been
given. There is no allegation that soon before her death or within a
reasonable proximity of death either there was any demand from
the deceased for dowry or the deceased was subjected to any kind
of cruelty for non-fulfillment of such demand. During trial also, no
witness has come forward to say that soon before death the victim
was subjected to any kind of cruelty due to non-fulfillment of
demand of dowry.
138. P.Ws. 4 and 5, being the father and mother
respectively of the deceased, are the main witnesses, whose
evidence would be relevant to determine as to whether the
prosecution has been able to prove its case beyond reasonable
doubt.
139. P.W.4, the father of the victim has vaguely stated in
his deposition that the husband and father-in-law of the deceased
always used to demand motorcycle. He states that the marriage of
his daughter had taken place on 10.08.2003. The death of his
daughter had taken place on 17.03.2007. There is nothing in his
evidence from which it can be said that soon before death or in
close proximity of death, the victim was subjected to cruelty for
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
non-fulfillment of demand of motorcycle. He has admitted in his
cross-examination that he always used to visit the matrimonial
home of his daughter and his daughter along with her husband also
used to visit her maternal home frequently. He also admits that
before death of the deceased, no complaint was ever lodged with
the police or before the court. He admits that he had visited the
matrimonial home of his daughter about ten days before her death
and even during that time no complain was made to him.
140. Similarly, P.W.5, mother of the deceased has admitted
that her daughter frequently used to come to her maternal home
from sasural. She has made a vague allegation that in sasural her
daughter was being subjected to cruelty for demand of motorcycle.
She also has not stated a word to even remotely suggest that soon
before her death or within a reasonable proximity of her death any
demand of dowry was made from her daughter or she was
subjected to cruelty for non-fulfillment of such demand. She has
introduced a new story in her deposition that her daughter was not
happy in her sasural as her husband was having extra marital
relationship with his sister-in-law. Save and except this
uncorroborated testimony of P.W.5, there is no cogent evidence to
support the story. There is also no cogent evidence to support even
the vague allegation of demand of motorcycle. No prior complaint
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
in this regard was ever made by the deceased or her parents.
141. On the contrary, the evidence on record suggests that
the informant and father-in-law of the deceased are cousins. The
families were known to each other since long. The deceased and
her husband had cordial relationship and they were blessed with
two children. The Trial Court completely erred in ignoring that the
prosecution failed to present any material to rule out the possibility
of a suicidal death so as to bring it within the purview of the death
occurring otherwise than in normal circumstances as required
under Section 304-B of the IPC. The Trial Court completely
ignored the evidence of I.O. wherein he admitted that Alamgir
Ahmad and Md. Naushad stated before him in their respective
statements that the deceased was taken to hospital for treatment
and she died while being taken to Gorakhpur by the husband and
his relatives for treatment. It ignored the admission of the I.O. that
Md. Naushad had stated that the family members of the victim had
participated in the burial rituals. It also brushed aside the
photograph exhibited on behalf of the defence showing presence of
P.W.5 and her another daughter on the date of burial of the victim.
142. The Trial Court erred in ignoring the admission of the
I.O. that the mother of the deceased had stated in her statement
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
under Section 161 of the Cr.P.C that the deceased died while being
taken to Gorakhpur for better treatment.
143. The Trial Court also erred in ignoring that since the
prosecution failed to establish the fact that "soon before" the
occurrence of or in close proximity of death, the victim was
subjected to cruelty or harassment in connection with demand of
dowry, the presumption under Section 113-B of the Evidence Act
would not operate. It also erred in ignoring the fact that the
prosecution failed to establish any reliable evidence of subsisting
demand. Thus, in the absence of the fulfillment of the essential
ingredients of Section 304-B of the IPC, the conviction of the
appellants under Section 304-B of the IPC cannot be upheld.
144. In so far as the conviction of the appellants under
Section 201/34 of the IPC is concerned, the law is well settled that
a charge under Section 201 of the IPC can be maintained in case
the prosecution is able to establish that an offence had been com-
mitted, the person charged with the offence had knowledge or the
reason to believe that the offence had been committed, the said per-
son has caused disappearance of evidence and such act of disap-
pearance has been done with the intention to screening the offender
from legal punishment. Mere suspicion is not sufficient to bring
home the charge under Section 201 of the IPC.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
145. In Hanuman and Ors. vs. State of Rajasthan since
reported in 1994 SCC Supp (2) 39, the Supreme Court held that
mere fact that the deceased allegedly died an unnatural death could
not be sufficient to bring home the charge under Section 201 of the
IPC, unless the prosecution was able to establish that the accused
person knew or had reason to believe that an offence had been
committed, causing the evidence of the commission of the offence
to disappear, he cannot be convicted.
146. In the instant case, there is no such evidence against
the appellants. On the contrary, the evidence is that when the de-
ceased was found unwell, she was taken to Sadar Hospital, Gopal-
ganj for treatment. She was administered fluid and was provided
treatment at Sadar Hospital. When her condition deteriorated,
while she was being taken to Gorakhpur in a vehicle for better
treatment, she died.
147. Further, the evidence on record makes it clear that the
body of the deceased was not disposed of hurriedly. It was brought
back to the matrimonial home of the deceased and the burial took
place as per Muslim rites in the Qabristan. There is also evidence
that the family members of the deceased were present at the time
of burial. They had no suspicion at that time of commission of any
offence. When a photograph taken at the time of burial of the de-
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
ceased containing the pictures of mother and sister of the deceased
was shown to PWs 4 and 5 by the defence witness, they tried to
give evasive reply.
148. Furthermore, the prosecution did not even examine
any neighbour of the appellants to substantiate the allegation of
hurried disposal of the body. On the contrary, the prosecution with-
held witnesses like, Ekramul Haque, Md. Naushad and Alamgir
Ahmad, whose statements were recorded by the I.O. during inves-
tigation under Section 161 Cr.P.C.
149. Thus, in the facts and circumstances of the case, I am
of the view that the trial court was not justified in convicting the
appellants under Section 201/34 of the IPC.
150. In view of the foregoing discussions, I am persuaded
to conclude that the impugned judgment and order cannot be
legally sustained. Consequently, the impugned judgment of convic-
tion dated 26.03.2019 and order of sentence dated 29.03.2019 are,
hereby, set aside. The appellants, namely, Nasruddin Mian @ Lalu
@ Nasiruddin Ahmad and Salamu Nesha @ Salamun Nesa are di-
rected to release forthwith, if they are not required in any other
case.
151. These appeals stand allowed.
Patna High Court D. REF. No.1 of 2019 dt.21-06-2021
152. The reference made by the trial court under Section
366 of the Cr.P.C is rejected.
153. Before parting with the reference and the appeals, I
would once again record my appreciation for the able assistance
rendered by the learned amicus curiae.
154. The Patna High Court, Legal Services Committee is,
hereby, directed to pay Rs.7,500/- (rupees seven thousand five hun-
dred) to Ms. Anukriti Jaipuriar, learned amicus curiae in Death
Reference No.1 of 2019.
(Ashwani Kumar Singh, J)
Arvind Srivastava,J.: I agree.
( Arvind Srivastava, J)
Pradeep
AFR/NAFR AFR
CAV DATE 19.05.2021
Uploading Date 21.06.2021
Transmission Date 21.06.2021
