Murari Kumar Singh vs The State Of Bihar
2023 Latest Caselaw 3973 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.1170 of 2019
        Arising Out of PS. Case No.-34 Year-2012 Thana- BALUA BAZAR District- Supaul
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MURARI KUMAR SINGH Son of Late Sita Ram Singh Resident of Village - Makanpur, P.S.- Barsaliganj, Distt.- Nawada.

... ... Appellant/s Versus

1. THE STATE OF BIHAR Bihar

2. Dhiraj Kumar Son of Satendra Prasad Resident of Village - Narsingpur, P.S.-

Jaysampure More, Distt.- Sheikhpura.

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s    :        Mr. Yogesh Chandra Verma (Sr. Adv.)
                            :        Mr.Anuj Kumar (Adv.)
                            :        Ms. Priyanka Singh (Adv.)
     For Respondent No. 2   :        Mr. Mukesh Kumar (Adv.)
     For the State          :        Mr.Dilip Kumar Sinha (A.P.P.)

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 23-08-2023

1. Heard Mr. Yogesh Chandra Verma, the learned

senior advocate for the appellant/informant who is

aggrieved by the judgment of acquittal of respondent

no. 2, who has been represented here by Sri Mukesh

Kumar, the learned advocate. We have also heard Mr.

Dilip Kumar Sinha, the learned A.P.P. for the State.

2. By way of the present appeal, the appellant has

challenged the acquittal of respondent no. 2 by the Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

learned Additional Sessions Judge -1, Supaul vide

judgment dated 20.07.2019 passed in Sessions Trial

No. 101 of 2013 arising out of Balua Bazar P.S. Case

No. 34/2012.

3. The respondent no. 2 is the husband of the

deceased against whom charges were framed under

Section 302 and 304B Indian Penal Code. The

informant/appellant who has been examined as P.W. 4

had lodged the F.I.R. on 23.09.2012, alleging that he

had married his daughter to the respondent no. 2 in

the year 2006. Right since the marriage, he had been

according all respect to the family of the appellant but

on the exhortation of his parents and brother, the

respondent no. 2 kept on demanding money every now

and then. Uptill now, all the demands put up by

respondent no. 2 had been fulfilled by him. About four

days ago, the respondent no. 2 is said to have

demanded a fridge. On 22.09.2012 as claimed by the

appellant/informant, his daughter-in-law received a

telephone call that the deceased had strangulated Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

herself. On this information, the informant came to the

conclusion that perhaps non-fulfillment of the demand

of fridge has led to the deceased being killed by

respondent no. 2. The respondent no. 2 had also

threatened that it is very common in his village home

to kill the wife and then marry again.

4. On the basis of the aforenoted report lodged by

P.W. 4, Balua Bazar (Lalitgram) P.S. Case No. 34 of

2012 dated 23.09.2012 was registered for

investigation for offences under section 304B, 120B

and 34 of the IPC.

5. The police, however, on investigation found that

no case under Section 304(B) of the IPC was made out

but sent up the respondent no. 2 only from amongst

the other accused persons, for trial for offence under

Section 302/120B I.P.C. However, charges were

framed against respondent no. 2 under both, Section

304B and 302 IPC.

6. The Trial Court after having examined eight

witnesses on behalf of the prosecution and two on Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

behalf of the defence, acquitted the respondent no. 2

of all charges.

7. Mr. Yogesh Chandra Verma, the learned senior

advocate for the appellant/informant has submitted

that the Trial Court has adopted a very casual

approach in dealing with the charge under Section 302

of the IPC. He has submitted that from the tenor of

the judgment, it would appear that no attempt has

been made by the Trial Court to assess the evidence in

terms of Section 304B of the IPC under which section

also charge was framed against respondent no. 2. With

the charges under section 304B IPC, the provisions

contained in Section 113B of Evidence Act would get

triggered, which fact has been completely ignored by

the Trial Court.

8. It has further been submitted that from the

circumstances gathered through the deposition of

witnesses, it would appear that soon before her death,

the deceased was tortured by respondent no. 2 and

others and even if the deceased committed suicide, the Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

respondent no. 2 was responsible for goading her to do

that. These aspects of the matter, Mr. Verma grieves,

have been completely overlooked. The medical

testimony, it has been asserted, is in complete

conformity with the ocular version even though nobody

has seen the occurrence. The deceased had ante-

mortem injury on her body in the shape of a

continuous ligature mark below the chin and above the

neck which may not be possible in the case of hanging.

It has been urged that in cases of hanging the ligature

mark is always irregular unlike the regular ligature in

case of strangulation. It has also been argued that with

the recovery of a plastic rope in the room where the

deceased was killed, the offence under Section

304B/302 stands proved. That there were no other

injuries on the person of the deceased is no ground to

completely disbelieve the prosecution version.

9. Lastly, it has been submitted that the witnesses,

namely 1, 2, 3 and 4 who are the siblings and the

parents of the deceased respectively including the Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

appellant/informant have supported the prosecution

case of the deceased being troubled for money by the

respondent no. 2 and others. This aspect ought not to

have been lightly brushed aside by the Trial Court.

Apart from this, it has been argued that the learned

Trial Court erred in assessing that the deceased died

after seven years of her marriage. The family

members, Mr. Verma argued, are the best persons to

know the year of marriage of someone. Merely because

two of the neighbours of respondent no. 2 had alleged

that they had the knowledge that the deceased got

married to respondent no. 2 in the year 2004 and not

2006, would not be a ground strong enough to

disbelieve P.Ws. 1 to 4 regarding the year of marriage

of the deceased with the respondent no. 2.

10. On these grounds, it has been urged that

the judgment of acquittal deserves to be interfered

with.

11. Mr. Mukesh Kumar, the learned advocate for

the respondent no. 2, however, has submitted that the Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

Trial Court judgment requires no interference as all

the evidence on record have been carefully analysed

and the Trial Court has rightly come to the conclusion

that the accusation is false.

12. In order to appreciate the contentions of

the parties, we have carefully examined the deposition

of the witnesses.

13. Murari Kumar, who is the brother of the

deceased, has been examined as P.W. 1, who has

though supported the prosecution case but has made

certain statements which are not consistent with the

regular prosecution version. Similar is the case with

Sudama Devi (P.W. 2) who is the mother of the

deceased and Indu Kumari who is the sister of the

deceased (P.W. 3). The appellant/informant has,

during his cross-examination, clearly stated that he had

not stated before the police that there had been any

demand over a period of 3 to 4 days before the

deceased died. Thus, the very story of continuous

demand, at regular intervals, of money from the Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

appellant/informant could not be proved. Had the

relationship between the spouses been strained, the

appellant/informant would not have waited for all

these years to see his daughter tortured in her

matrimonial home. There has been no rebuttal of the

fact that the deceased did not bear any child out of the

wedlock and was also being treated for some of the

latent diseases which could have become terminal after

sometime. This had made the deceased mentally

unstable, who attempted to and was successful in

ending her life.

14. We have examined the deposition of the doctor

(P.W. 5) who had conducted the postmortem on the

deceased. He had conducted the postmortem at 12:05

PM on 22.09.2012 and had found the face of the

deceased congested. The upper eyelid was prominently

swollen and the tongue had protruded out. There was a

ligature mark on the upper portion of the neck with a

width of 1 CM x 2½ CM. Subcutaneous vessels were

also found to be prominently congested. The internals Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

of the other organs were, however, intact. The hyoid

cartridges were found to be broken. Rigor mortis was

present in mild form in the upper limbs. The cause of

death was assessed to be cardio respiratory failure due

to asphyxia caused by homicidal tourniquet application.

He has explained the same in his cross-examination

that tourniquet means any string. However, he has

also, in the same breath, stated that no mark of

assault was found by him on the neck or other part of

her body. He has further tried to explain that in self

hanging, there is always a possibility of the ligature

mark being oblique and not regular.

15. From the postmortem report, we find that some

assumptions were made by P.W. 5 without any strong

basis. Normally, a tourniquet is a device which is used

to apply pressure to a limb or extremity in order to

stop the flow of the blood. The apparatus is more often

than not in use in emergencies in surgery or in post-

operative rehabilitation. No doubt, a simple tourniquet

could be made from a stick and a rope but it is highly Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

ineffective for the purpose for which the same is used.

According to the evidence available on record, only a

small piece of plastic rope was found in the room which

was seized. For asphyxia, because of tourniquet

pressing of the neck, the rope had to be attached to

some other mechanical device. Had it been the case,

the other part of the device also would have been

present in the room and seized by the police. It's

application also would have been evident on the body

of the deceased by way of ante-mortem injuries. The

doctor has categorically asserted that there was no

injury on any part of the body, much less on the neck

of the deceased.

16. True it is that in cases of self hanging, the

ligature mark is usually oblique. Experience has shown

that in such hangings, the ligature is non-continuous

and is present high up in the neck between the chin

and the larynx. However, there are other secondary

symptoms/indications to support such proposition that

the death is by homicidal strangulation and not by self Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

hanging. In cases of hanging, it is almost a rarity that

any abrasion or ecchymosis around the edges of the

ligature mark would be found. In the present case,

there is no abrasion or ecchymosis near the ligature

mark, clearly suggesting that it is not a case of

strangulation or smothering. There is no report of any

injury to the muscles of the neck. The hyoid bone was

though found to be fractured but the larynx and

trachea were found to be intact.

17. We have also not found any reported dislocation

of cervical vertebrae. As commented by the doctor

(P.W. 5) he found no scratches, abrasion or bruises on

any part of the body. However, we find that the doctor

has not examined or has stated anything which would

indicate that he looked for "emphysematous bullae" on

the surface of the lungs. There are good possibilities of

the presence of "emphysematous bullae" on the

surface of the lungs in case of hanging, which is never

the case when a person is strangulated. Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

18. That apart, we have found that two of the

independent witnesses namely Akhilesh Kumar Shukla

(PW 6) and Satish Kumar Tiwary (PW 8) have denied

that the deceased was ever ill-treated by respondent

no. 2. The deceased and respondent no. 2 resided in

an official accommodation provided by Gamon India

Company where PWs 6 and 8 were also employed and

resided in the neighbourhood of respondent no. 2. The

deceased always put up the appearance of a happy

woman. One of these witnesses has, however, stated

that when the family members of the deceased came,

they started alleging ill-treatment at the hands of

respondent no. 2 which was hitherto unknown to both

the prosecution witnesses.

19. In the same context, we have examined the

deposition of two of the witnesses on behalf of the

defence namely Amrendra Mishra (DW1) and Vashisht

Narayan Singh (DW2).

20. Amrendra Mishra is also an employee of Gamon

India who has categorically stated before the Trial Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

Court that the deceased never spoke about any ill-

treatment to his wife or to him. She was always taken

for treatment to Patna. He remembered that the

deceased was taken for an excursion also to Jammu by

respondent no. 2. The respondent no. 2 had sought

help when the deceased had attempted and had

committed suicide. It was at that time that P.W. 6 and

8 and the defence witnesses came to the house of

respondent no. 2, but only to find the deceased having

died of hanging.

21. Vashisht Narayan Singh, another defence

witness, is the uncle of Respondent no. 2 who has also

spoken about good relationship between the spouses.

22. Apart from this, Mr. Mukesh Kumar for the

respondent no. 2 has also drawn the attention of this

court to two other facts namely that immediately after

the death of deceased, a U.D. case was registered by

respondent no. 2. The appellant/informant perhaps

lodged this case only on being angered at the denial of

the respondent no. 2 and his other family members, of Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

returning the articles used by the deceased. In support

of the aforenoted allegation, Mr. Mukesh has further

pointed out that when the respondent no. 2 had gone

to jail in connection with this case, the

appellant/informant along with his associates had

forcibly entered into his house and ransacked his

belongings and also took away certain valuables stated

to be that of the deceased. For this act of the

appellant/informant, a complaint case was also lodged

by respondent no. 2.

23. Thus, we find that there is no evidence on record

with respect to any ill-treatment to the deceased prior

to her having ended her life. The story of demand of

refrigerator three days prior to the deceased having

committed suicide also could not be proved. The

Investigating Officer has been candid enough in

admitting that he did not take out the CDR of the

telephones of the deceased and her family members

which could have been an evidence to prove that the

deceased had talk with her family members shortly Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

before her death. That the deceased was not being ill-

treated is further evident from the fact that till date i.e.

till the time of death of the deceased, no complaint

was ever lodged by her family members. The story of

respondent no. 2 having stated in the family of the

appellant that there is a usual practice of killing the

wife and getting re-married is at best statement in the

nature of brutum fulmen. Whether he ever made such

statement is also doubtful.

24. The contention of Mr. Verma, the learned senior

advocate for the appellant that the trial court did not at

all look into the aspect of the accusation under Section

304B of the IPC, is not sustainable for the reason that

even if the Trial Court had thought of employing the

provisions contained in Section 113B of the Evidence

Act, the prosecution had first to establish all the facts

constituting the offence under Section 304B of the

Indian Penal Code.

Patna High Court CR. APP (DB) No.1170 of 2019 dt.23-08-2023

25. As noted above, we have found no evidence to

conclude that shortly before her death, the deceased

was ill-treated or tortured for dowry.

26. Thus, we do not find any reason to interfere with

the judgment of acquittal of the respondent no. 2.

27. The appeal, thus, stands dismissed.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J)

Sunilkumar amitkr/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          29.08.2023
Transmission Date       29.08.2023