Patna High Court
Manoj Chaudhary vs The State Of Bihar on 24 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1155 of 2019
Arising Out of PS. Case No.-88 Year-2015 Thana- SHERGHATI District- Gaya
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1. Manoj Chaudhary Son of Lal Muni Chaudhary @ Lala Muni Chaudhary
Resident of Village- Bela, P.S.- Sherghaty, District- Gaya.
2. Lal Muni Chaudhary Son of Late Bangali Chaudhary Resident of Village-
Bela, P.S.- Sherghaty, District- Gaya.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellants : Mr. Nand Kishore Prasad Sinha, Advocate
For the Respondent : Mr. Sujit Kumar Singh, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 24-08-2023
This appeal has been preferred under Section 374(2) of
the CrPC against the judgment of conviction dated 29.07.2019 and
the order of sentence dated 07.08.2019 passed by the learned
Additional Sessions Judge-IV, Gaya, in Sessions Trial No. 338 of
2016/523 of 2016, arising out of Sherghati P.S. Case No. 88 of
2015, whereby the appellants have been convicted and sentenced
as under: -
Cr. Appeal (D.B.) No. 1155 of 2021
Convicted under Sections Sentence
Imprisonment Fine In default of
(Rs.) fine
Appellant No. 1 302/34 of the IPC Life 10,000/- S.I. for six
(Manoj Chaudhary) Imprisonment
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
Appellant No. 2 (Lal 302/34 of the IPC Life 10,000/- S.I. for six
Muni Chaudhary) Imprisonment
2. We have heard Mr. Nand Kishore Prasad Sinha,
learned counsel appearing on behalf of the appellants and Mr. Sujit
Kumar Singh, learned Additional Public Prosecutor appearing on
behalf of the State.
3. Appellant No. 1 is the husband of the deceased and
the appellant No.2 is the father of appellant No.1. Both of them
were charged for commission of offence punishable under Section
302 read with 34 of the IPC and Section 304B read with 34 of the
IPC. They have been acquitted by the trial court of the charge of
offence punishable under Section 304B read with 34 of the IPC
and, as has been noted hereinabove, they stand convicted of the
offence punishable Section 302 read with 34 of the IPC by the
impugned judgment.
4. We need to briefly take note of the prosecution's case,
as disclosed in a written report by the informant, Arun Chaudhary
(PW 7), a cousin of the deceased, addressed to the Station House
Officer, Sherghati Police Station, which was the basis for
registration of concerned Sherghati P. S. Case No. 88 of 2015,
disclosing commission of offence punishable under Section
340B/34 of the IPC. According to the said written report, the
deceased was married to appellant No.1 in the year 2011-12. On
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
02.04.2015, the informant received an information that the
deceased had died of burn injuries in her in-laws' house. He rushed
to the matrimonial home of the deceased, where he found the dead
body of the deceased lying in the courtyard and all members of the
house having fled away. There were severe burn injuries on the
body of the deceased. He made allegations of demand of dowry
and torture against the two appellants. He suspected that the
deceased might have been done to death by these appellants for
non-fulfillment of demand of dowry and, thereafter, fled away.
5. Upon completion of investigation, charge-sheet was
submitted for commission of offence punishable under Section
304B/34 of the IPC, whereafter cognizance was taken and after
complying with the requirements of Section 207 of the CrPC, the
case was committed to the court of Sessions for trial.
Subsequently, charges were framed by the trial court for
commission of offence punishable under Section 304/34 of the IPC
and Section 302/34 of the IPC. The appellants denied the charge
and accordingly they were put on trial.
6. At the trial, the prosecution examined seven
witnesses, namely, Sahdev Chaudhary (PW 2, father of the
deceased), Ravindra Chaudhary (PW 3, a brother of the deceased)
and Arun Chaudhary, the informant (PW 7, a cousin of the
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
deceased). One Mohan Yadav, who appeared as PW 4 as an
independent witness, came to be declared hostile, as he did not
support the prosecution's case. The uncle of the deceased, Devki
Chaudhary, deposed as PW 1. The IO and the Doctor, who had
conducted the postmortem examination were examined as PWs 5
and 6 respectively. In addition to the oral evidence of the
abovementioned witnesses, the prosecution brought on record
following documentary evidence: :-
1. Signature of PW 2 on X- Ext.-1
copy of inquest report
2. Signature of witness Ext.-1/1
Mohan Yadav on inquest
report.
3. Inquest report Ext.-1/2
4. Formal FIR Ext.-2
5. Endorsement on written Ext.-3
report
6. Postmortem report Ext.-4
7. After closure of the prosecution's evidence, the
appellants were questioned by the trial court under Section 313 of
the CrPC so as to give them an opportunity to explain the
circumstances emerging against them based on the prosecution's
evidence. The questions put by the court to the appellants and their
answers recorded under Section 313 of the CrPC read as under: -
"Manoj Chaudhary
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
प्रशन : आपने साककयो का साकय सु ना है ?
उतर: हाँ
प्रशन : आपके कवरद साकय है कक आपने अनय के साथ
कमलकर एकमत होकर जून 2015 ग्राम बे ला थाना - शे रघाटी, गया मे
पु षपा दे वी को प्रताकड़त ककया तथा उसकी हतया की | कया कहना है ?
उतर - नहीं
प्रशन - सफाई मे कुछ कहना है ?
उतर - नहीं "
"Lal Muni Chaudhary
प्रशन : आपने साककयो का साकय सु ना है ?
उतर: हाँ
प्रशन : आपके कवरद साकय है कक आपने अनय के साथ
कमलकर एक मत होकर जून 2015 ग्राम बे ला थाना - शे रघाटी, गया
मे पु षपा दे वी को प्रताकड़त ककया तथा उसकी हतया की | कया कहना है
?
उतर - नहीं
प्रशन - सफाई मे कुछ कहना है ?
उतर - कनदोरष हँ ू "
8. The trial court, after having appreciated the evidence
adduced at the trial and considered the contentions advanced on
behalf of the prosecution and the defence, reached a conclusion
that though the prosecution was able to prove the charge of
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
commission of offence punishable under Section 302/34 of the
IPC, in the absence of cogent evidence of demand of dowry, the
charge of commission of offence punishable under Section 304B
of the IPC cannot be said to have been proved. After having held
the appellants guilty of the offences, the trial court sentenced the
appellants to imprisonment of life and fine as has been noted
above.
9. Mr. Nand Kishore Prasad Sinha, learned counsel
appearing on behalf of the appellants has submitted that it is
apparently a case of circumstantial evidence and the chain of
circumstances are not so complete as to reach a definite conclusion
that murder of the deceased by these two appellants could be the
only possible hypothesis, leaving aside possibility of any other
circumstance in which the deceased died. He has submitted that
the trial court has committed a gross error by invoking Section 106
of the Evidence Act to record the impugned finding of guilt. He
submits that the only reasoning, which the trial court has assigned
for holding the appellants guilty of the charge of commission of
the offence punishable under Section 302 of the IPC, is that the
appellants failed to disclose the fact, which was especially within
their knowledge as the deceased had died in the house of the
appellants. He has submitted that it is evident from the deposition
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
of the prosecution's witnesses that appellant No.1 himself had
informed the brother of the deceased about her death. The
circumstance that after having killed the deceased, the appellants
had fled away from the house, as the basis for holding the charge
of murder proved, is also illogical. From the evidence, it would
appear that appellant No.1 himself had gone to the police station to
report about the occurrence of maltreatment meted out to him by
his in-laws, which led to registration of a counter case, i.e.,
Sherghati P.S. Case No. 90 of 2015. He has further submitted that
the appellants had a right of silence and the burden was heavy on
the prosecution to prove the charge of commission of murder
punishable under Section 302 of the IPC against these appellants.
10. Mr. Sujit Kumar Singh, learned Additional Public
Prosecutor appearing on behalf of the State has submitted that it is
true that it is a case of circumstantial evidence, which is based on a
strong circumstance that the victim died in the house of the
appellants of severe burn injuries. The defence of the appellants
that the deceased died in an accident while cooking does not
appear to be acceptable in view of the medical evidence that smell
of kerosene oil was coming out from the entire body of the
deceased including her scalp. He has submitted that the trial court
has rightly convicted the appellants invoking Section 106 of the
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
Evidence Act in the absence of any plausible explanation put forth
by these appellants regarding the death of the deceased by burn
injuries.
11. There are certain facts, which are not at all in
controversy. The victim died in her matrimonial home and her
dead body was found lying in the court-yard of the house. She had
sustained severe burn injuries. The Doctor, who had conducted the
postmortem examination, deposed in his evidence that smell of
kerosene oil was coming out of scalp, hairs and residual clothes
including the body and the percentage of burn was approximately
90 percent. Cause of death, according to the Doctor, was shock,
coma and asphyxia as a result of burn injuries. We find no
hesitation in recording a finding that the prosecution did not lead
any evidence to prove that before or at the time of the death of the
deceased, the appellants were present in the house, where she died.
The brother of the deceased (PW 3), in his evidence, deposed that
there was a demand of dowry, which had remained unfulfilled. It is
evident from his deposition that it was appellant No.1, who had
informed PW 3 about the deceased having sustained burn injuries,
whereupon PW 3 had advised him to take her to a Doctor.
Evidently thus, the appellant No.1 had himself disclosed the fact of
the deceased having sustained burn injuries. Further, it is the case
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
of the prosecution's witnesses that the appellants had fled away
from the house when the family members of the deceased had
reached the matrimonial home of the deceased. The IO, in his
deposition, has mentioned that appellant No.1 himself had gone to
the police station, whereupon, a counter case was registered vide
Sherghati P.S. Case No. 90 of 2015. After registration of the FIR,
the appellant No.1 was arrested in the police station. The conduct
of the appellant No. 1 shows that he did not make any attempt to
evade the course of investigation. The prosecution's case of
demand of dowry and torture meted out to the deceased by her in-
laws has not been found to have been proved by the trial court and
accordingly the appellants have been acquitted of the charge of the
offence punishable under Section 304B of the IPC. In the present
case, death of the deceased by burn injury in the house of her in-
laws is the only circumstance, which has been proved by the
prosecution at the trial and which is not much in controversy. We
are, however, of the opinion that this circumstance alone cannot
be said to be sufficient to hold the appellants guilty of commission
of the offence punishable under Section 302 of the IPC. In our
opinion, Section 106 of the Evidence Act, in the present set of
facts, cannot be applied for the simple reason that it cannot be
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
presumed that there were certain facts, which were within the
knowledge of the appellants.
12. Section 106 of the Indian Evidence Act can be
invoked only if the prosecution is able to prove that a particular
fact is 'especially' within the knowledge of any person. Only if the
prosecution proves that a particular fact is especially within the
knowledge of any person, burden of proving that fact would lie on
the accused. If in the present case, Section 106 of the Evidence Act
is applied, it would amount to first presuming that the appellants
are the murderers, which, in our opinion, is impermissible. Section
106 of the Evidence Act does not cast a burden on an accused for
proving innocence. In any event, right of an accused to silence
could not have been taken away by invoking Section 106 of the
Evidence Act in the facts and circumstances of the present case.
13. There is yet another aspect of the matter. The
prosecution's witnesses deposed at the trial that these appellants
had fled away from the house. The circumstance was not explained
to the appellants by the trial court, while questioning them under
Section 313 of the CrPC. A vague question was put to both the
appellants that there was evidence to the effect that they had
tortured the deceased and had killed her. The manner in which the
appellants were questioned under Section 313 of the CrPC by the
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
trial court cannot be approved by this Court. It is also pertinent to
mention that the defence had examined Jitendera Gupta (DW 1),
who deposed at the trial that the relationship between the deceased
and her in-laws was very cordial. It can be easily inferred from the
deposition of DW 1 that, according to him, these appellants were
not in the house when the occurrence had taken place and they
were in their agricultural field at the time of occurrence.
14. Taking into account to totality of the facts and
circumstances and the evidence adduced at the trial, we are of the
view that the prosecution cannot be said to have established, based
on circumstantial evidence, that murder of the deceased by these
appellants could be the only hypothesis excluding possibility of
any other eventuality. It is not a case of completion of chain of
circumstances. There is only one circumstance, which the
prosecution has proved, i.e., the death of the deceased by burn
injuries in the house of her in-laws. The said sole circumstance, in
our considered opinion, cannot be said to be conclusive evidence
to prove the guilt of these appellants for commission of offence
punishable under Section 302 of the IPC. They accordingly
deserve to be acquitted of the said charge by giving them benefit
of doubt.
Patna High Court CR. APP (DB) No.1155 of 2019 dt.24-08-2023
15. Accordingly, the impugned judgment of conviction
dated 29.07.2019 passed by the learned Additional Sessions Judge-
IV, Gaya, in Sessions Trial No. 338 of 2016/523 of 2016 arising
out of Sherghati P.S. Case No. 88 of 2015, is hereby set aside. The
appellants stand acquitted of the charge of commission of offences
punishable under Section 302/34 of the IPC giving them benefit of
doubt. The order of sentence dated 07.08.2019 also stands set
aside.
16. This appeal is allowed.
17. The appellant No.1, namely, Manoj Chaudhary, is in
custody. Let him be released forthwith, if not required in any other
matter. The appellant No.2, namely, Lal Muni Chaudhary, is on
bail. He stands discharged from the liabilities of the bail bonds and
the sureties, if any.
(Chakradhari Sharan Singh, J)
(Nawneet Kumar Pandey, J)
Pawan-Kundan
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 28.08.2023.
Transmission Date 28.08.2023.
