Ajay Ray @ Ajajy Kumar Ray And Ors vs The State Of Bihar
2023 Latest Caselaw 4165 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.2426 of 2017
       Arising Out of PS. Case No.-415 Year-2002 Thana- HAJIPUR SADAR District- Vaishali
     ======================================================

Gayan Prakash Son of Dwarika Ray, resident of Village and Post Office- Balwa Kuwari, Police Station- Sadar Hajipur, District- Vaishali.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 2466 of 2017 Arising Out of PS. Case No.-415 Year-2002 Thana- HAJIPUR SADAR District- Vaishali ======================================================

1. AJAY RAY @ AJAJY KUMAR RAY, Son of Dwarika Ray,

2. Anita Devi, Wife of Ajay Ray,

3. Dwarika Ray @ Dwarika Prasad Ray, Son of Late Munar Ray, All resident of Village- Dharmgachhi, Balwa Kuwari, Police Station- Sadar Hajipur, District- Vaishali at Hajipur.

... ... Appellant/s Versus The State of Bihar

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

(In CRIMINAL APPEAL (SJ) No. 2426 of 2017) For the Appellant/s : Mr. Vikram Deo Singh, Advocate Mr. Mukund Mohan Jha, Advocate Mr. Aquaib Khan, Advocate For the Respondent/s : Mrs. Anita Kumari Singh, APP (In CRIMINAL APPEAL (SJ) No. 2466 of 2017) For the Appellant/s : Mr. Vikram Deo Singh, Advocate Mr. Mukund Mohan Jha, Advocate Mr. Aquaib Khan, Advocate For the Respondent/s : Mrs. Anita Kumari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT Date : 31-08-2023

1. As both the criminal appeals have arisen out of

the same judgment of conviction, hence both the appeals are Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

being decided together by a common judgment.

2. Since the appellant no.3 in Cr. Appeal (SJ)

No.2466 of 2017, namely, Dwarika Ray @ Dwarika Prasad

Ray has died during the pendency of this appeal as appears

from the report of the Superintendent of Police, Vaishali at

Hajipur, hence the Cr. Appeal (SJ) No.2466 of 2017 stands

abated to the extent of the said appellant and it will now

survive only in respect of other appellants.

3. Heard the parties.

4. Both the appeals have been filed against the

judgment of conviction dated 19.07.2017 and order of

sentence dated 24.07.2017 passed by the learned Addl.

District and Sessions Judge, IV, Vaishali at Hajipur in

Sessions Trial Case No.52/2007 arising out of Hajipur

Sadar P.S. Case No.415/2002, whereby and whereunder the

appellants have been convicted for the offences punishable

under Sections 304(B)/34 and 201/34 of IPC and sentenced

to undergo rigorous imprisonment for 10 years for the

offence punishable under Section 304(B)/34 of IPC and

simple imprisonment for 3 years and a fine of Rs.5,000/-

each for the offence punishable under Section 201/34 of Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

IPC and in default of payment of fine, they shall further

undergo simple imprisonment for three months and both the

sentences have been directed to run concurrently. `

5. The appellants stood charged for the offences

punishable under Sections 304 (B) read with 34 and 201

read with 34 of Indian Penal Code (for short I.P.C.). The

substance of the prosecution's case is that the informant's

grand-daughter, namely, Mamta Devi was married to the

appellant/Gayan Prakash just eight months before the

alleged occurrence and at the time of marriage, sufficient

gifts and dowry were given to the in-laws of the victim and

after the marriage, the victim went to her Sasural and

started residing there but after some time, the appellants

started complaining about non-fulfilment of demand of

Hero Honda motorcycle and a gold chain which were

promised to be given, hence the accused persons started

pressurizing the victim to demand the said things from her

Naihar. After that, the informant went to Sasural of the

victim and tried to convince the appellants and assured

them to fulfill their demand and brought the victim back to

her Naihar. It was further alleged by the informant that the Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

appellant/Gayan Prakash (husband of the victim) took the

victim with him from her Naihar just two and half months

before the occurrence and at that time, the gold chain, as

demanded, was given but the demand of motorcycle could

not be fulfilled, so the accused persons again started

torturing the victim and when the informant got the

information of the said behaviour and cruelty of the

accused persons given to the victim, he went to the Sasural

of the victim with co-villagers and brought her back and

thereafter took the victim to Patna where she was treated for

head injury and the victim told him that she was badly

assaulted by the accused persons by means of lathi, danda

on account of non-fulfilment of their demand of

motorcycle. It was further alleged by the informant that on

26.10.2002, an unknown person gave him the information

on telephone that the appellants had killed the victim by

giving poison to her and concealed the dead body also and

then he went to Sasural of the victim (Mamta Devi) with

co-villagers and found the appellants being absconding and

he did not find the body of the victim and noticed the foul

smell of poison emanating from the room in which the Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

victim used to reside.

6. The informant filed written FIR with above

allegations and on that basis, Hajipur Sadar P.S. Case

No.415 of 2002 was registered under Sections 304B, 201

read with 34 of IPC and under Section 3/4 of Dowry

Prohibition Act. After the completion of investigation, the

police submitted chargesheet under the same offences of the

FIR. Thereafter, the accused/appellants were charged for the

offences punishable under Sections 304 (B) read with 34

and 201 read with 34 of IPC. During trial, in oral evidence,

the prosecution examined fourteen witnesses and proved

and exhibited the following documents:-

Ext.1- The signature of the informant on written

FIR;

Ext.2- Post-mortem report;

Ext.3- An endorsement over the written FIR;

Ext.4 - The signature of Station House Officer

(SHO) of P.S. concern over the formal FIR.

7. During trial, three photographs of the

deceased including the photograph of her dead body were

also produced which were marked as X, X/1 and X/2. Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

8. After the completion of the prosecution's

evidence, the statements of the appellants were recorded

under Section 313 of Cr.P.C. and the main circumstances

appearing against them were explained to them, to which

they denied the said circumstances and claimed themselves

to be innocent. In defence, the appellants produced three

witnesses and examined them as DW.1, DW2 and DW 3

and in documentary evidence, they produced, proved and

exhibited three documents which are as under:-

Ext. A- A prescription of medical treatment of

the deceased;

Ext. B- A certificate dated 28.10.2002 issued by

Mukhiya; and

Ext. C- A photograph of marriage of the victim

and appellant/Gayan Prakash which was marked as X.

9. Learned counsel appearing for the appellants

has argued that there was no demand of any type of dowry

before the victim's marriage, at the time of Tilak ceremony

and at the time of marriage by the appellants and with

regard to the demand of dowry, no evidence was given by

the prosecution, so there was no reason for the appellants to Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

start the demand of a motorcycle and a gold chain from the

victim after she started residing at her Sasural and the

prosecution failed to disclose the specific period and time

when the appellants demanded the motorcycle from the

victim or her parental family members and in this regard,

the allegation made by the informant remained quite vague.

Further argument is that as per the evidence of informant in

respect of the alleged demand, a Panchayti meeting was

held in between both the parties but neither any

documentary evidence nor any oral evidence was given to

prove the same and the prosecution failed to prove the

demand of motorcycle and a gold chain allegedly made by

the appellants from the victim. It has been further argued

that in fact the deceased died due to diarrhea and in this

regard the doctor, who treated the deceased for the said

disease, was examined as DW 2 and the medical

prescription concerned to the said treatment was also

produced and proved by the said doctor which was marked

as Ext.A and when the victim's condition became critical,

she was referred to PMCH, Patna and on the way, she died.

Thereafter the family members of the deceased were Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

informed about the demise of the victim and after that the

funeral of the deceased was performed. It has been further

argued that the dead body of another lady, namely, Rajkali

Devi, wife of one Shiv Chandra Ray, which was found at

railway platform in decomposed condition some days after

the death of the victim, was claimed by the informant to be

of the victim of the present matter and he identified the said

dead body as being the victim by seeing the photographs

and clothes of the dead body but the said identification is

completely unbelievable and during trial, PWs.3, 8 and 10

deposed that the dead body of the said lady had been buried,

so in such a situation, DNA test on the dead body could

have been conducted by the concerned police officials but

they did not make any effort to do so and the identification

by the informant merely by seeing the photographs of the

said body was not sufficient to prove the body to be of the

victim. It has been further submitted that in respect of the

recovery of the dead body of a lady, which was claimed to

be of the victim, GRP Muzaffarpur P.S. Case No. 117 of

2002 was registered but the relevant documents concerned

to the said case, such as inquest report of the dead body and Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

seizure memo of the clothes found on the body were not

produced and proved by the prosecution in the trial of the

appellants and the clothes which are stated to have been

found on the body of the said lady, which was later claimed

by the informant to be of the victim of the present matter,

were also not produced by the prosecution before the trial

court and these facts are sufficient to show that the

prosecution failed to prove the recovered dead body of a

lady to be of the victim of the present matter. It has been

further argued that from the evidence of the prosecution

witnesses, it does not appear that the victim was subjected

to cruelty soon before her death by the appellants, so the

main ingredient to attract the offence punishable under

Section 304 B of IPC is lacking in present matter. It has

been further submitted that the learned trial court did not

explain all the circumstances to the appellants appearing

against them from the prosecution evidences while

recording their statements under Section 313 of Cr.P.C. and

merely on this ground, the appellants are entitled to be

acquitted.

10. Learned APP appearing for the State has Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

vehemently opposed the appeals and submitted that the

victim was killed just eight months after her marriage and

the defences taken by the appellants are not reliable and

believable as on the body of the victim, ante-mortem

injuries were found and informant rightly identified the

dead body of the lady as being the victim and the

prosecution succeeded in proving the main ingredients of

Section 304(B) of IPC to constitute the offence of dowry

death against the appellants and the factum of the recovery

of the dead body at railway station, which is 50 kilometers

away from the victim's sasural, is sufficient to prove that

the appellants concealed the victim's dead body, so the

alleged offence punishable under Section 201 of IPC

attracts in the present matter and the appellants have been

rightly convicted for the said offence.

11. Heard both the sides and perused the

evidence available on the case record of the trial court.

12. In respect of the offence of dowry death, it is

very difficult for the prosecution to bring an eye-witness of

the commission of such offence, as in most of the cases of

dowry death, the victim is killed within the walls of her Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

sasural's house and the persons who reside near the Sasural

of a victim as neighbours can be deemed to be important

witnesses but on account of such persons being interested in

the husband and in-laws of the victim owing to being their

co-villagers and neighbours, so they can be deemed to be

interested witnesses, so in my opinion, the most important

witnesses in such offence are the parental relatives of the

victim. In the present matter, the victim, who happened to

be grand-daughter of the informant, was married to the

appellant/Gayan Prakash just eight months before the

commission of the alleged occurrence and according to the

informant's evidence, the husband and other appellants

started torturing the victim for the demand of motorcycle

and a gold chain and on account of non-fulfilment of the

said demand, the victim was assaulted by them which

resulted in head injury to the victim for which she was

treated at PMCH, Patna. Though in respect of the said

treatment of the victim at PMCH, Patna, the informant

could not produce any documentary evidence but he stated

in the cross-examination that the relevant documents

concerned to the victim's treatment at PMCH might be with Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

the appellant/ Dwarika Ray. As the informant comes from

village background and appears to be a rustic person, so it

cannot be expected from him to keep the documents

concerned to the victim's medical treatment in his safe

custody and moreover the other material witnesses of the

prosecution supported the alleged physical assault

committed by the appellants with the victim which resulted

in head injury to the victim. As per the allegation, the

informant fulfilled the appellants' demand of a gold chain

and gave it to appellant/Gayan Prakash and in this regard,

the prosecution produced and examined PW 1, who runs a

jewellery shop and he deposed that about six months after

the marriage of the victim, the victim's mother told him that

the accused persons were demanding a gold chain and a

motorcycle from the victim and she asked him to make a

gold chain and then he made the gold chain and handed it

over to the victim's family and at that time, the

appellant/Gayan Prakash was present at the house of the

victim's parents. The evidence of this witness completely

corroborates with the factum of fulfilment of the demand of

gold chain by the informant to the appellant/Gayan Prakash. Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

13. The evidence of PWs.2 to PW.10, PW.13 and

PW.14 fully goes in favour of the prosecution's allegation

and all these witnesses fully supported the allegation that

the appellants started torturing the victim for the demand of

a gold chain and a motorcycle after her marriage and on

account of that torture, the demand of gold chain was

fulfilled by the informant. The accused persons did not get

success in eliciting any fact in the cross-examination of the

said witnesses to doubt the truthfulness of the allegations

levelled by the said witnesses and all the witnesses

remained firm to their stand in the cross-examination also

and their evidence is sufficient to prove that all the

appellants equally indulged in demanding a motorcycle and

a gold chain from the victim and subjected her to torture as

she failed to fulfill their demand of the motorcycle. Though

the prosecution did not produce any independent witness to

prove the said demand but I find no reason to disbelieve the

testimony of the examined prosecution witnesses as in

matrimonial offences, a victim lady normally tells such

type of dowry demand to her parental family members who

can be deemed to be reliable persons to prove such demand. Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

14. During trial, the appellants mainly took the

defence that the victim died due to diarrhea and when her

condition deteriorated she was taken by her in-laws

including her husband to a local private hospital from where

she was referred to PMCH, Patna but on the way, she died.

Though in this regard, the appellants produced and

examined the doctor concerned as DW.2, who is stated to

have treated the victim for the disease of diarrhea and also

exhibited the medical prescription of the said treatment as

Ext.A. But I find the said defence to be not reliable as

firstly, the appellants produced doctor's prescription only in

respect of the said disease of the victim but any other

documents, such as, medical test report, receipt of

medicines etc., were not produced and secondly, the said

doctor accepted in the cross-examination that there was no

endorsement of any serial number on the prescription of the

victim (Ext.A). The most important thing is that the factum

of death of the victim was not informed to the police by the

appellants and the said fact was accepted by DW 1 in his

cross-examination and according to the evidence of the

defence witnesses, the victim's body was cremated in Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

hurried manner and at the time of cremation, the

appellants/Gayan Prakash, Dwarika Ray, his villagers, DW1

and some others were present which clearly goes to show

that the parental family members of the victim did not

attend the funeral which is sufficient to create a serious

doubt in the said defence of the appellants.

15. Accordingly, I find no force in the appellants'

the defence as to the victim having been died on account of

diarrhea and thereafter she was cremated after informing the

informant and her parental family members who also

participated in that funeral. As per prosecution, the victim's

dead body was recovered at Kurni railway station just some

days after the commission of the alleged occurrence and as

the body was in decomposed condition, so soon after the

postmortem, it was cremated by railway police but before

that, photographs of the body were taken and when the

informant got the information of recovery of a dead body,

he approached the police and identified the said body as

being body of the victim after seeing the photographs of the

dead body and her clothes.

16. It has been further argued by learned counsel Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

for the appellants that the police did not make any effort to

fish out the body from the graveyard to take DNA sample to

ensure the body being the body of the victim of the present

matter.

17. I find no substance in the said contention, as

firstly, the dead body was in decomposing condition when

it was recovered and secondly, the prosecution witnesses

simply used the term "Dafnana" and the said term is

sometimes used by the rustic villagers in respect of their

ritual of funeral/cremation of a dead body irrespective of

whether it belongs to a Hindu or any other religion and

moreover the clothes, which were found on the recovered

body, were produced before the informant and the same

were identified by him as being of the victim and he also

identified the body by seeing her photographs hence I am of

the view that the identification made by the informant was

sufficient to prove the recovered dead body as being of the

body of the victim of the present matter. Accordingly, I find

no force in the above contention of the appellants' counsel.

18. As per evidence of PW 11, who conducted

postmortem examination over the recovered dead body, Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

abrasions were found on the chin, neck, face and back of

the body and according to his opinion, the deceased died

due to asphyxia as a result of strangulation. According to

his opinion, injury no.1 described in the postmortem report

was due to the alleged strangulation. The injuries found on

the body of the deceased discussed in her postmortem

examination report clearly suggest that she was subjected

to physical cruelty soon before her death and the accused

persons strangulated her to death.

19. It has been argued by learned counsel for the

appellants that against the appellants/Ajay Ray @ Ajay

Kumar Ray and Anita Devi there is no specific allegation

of dowry demand and cruelty and any of the prosecution

witnesses did not reveal their specific role in demanding the

alleged motorcycle and gold chain from the victim and in

committing the alleged cruelty to her and they have been

convicted by the trial court mainly on the basis of general

and omnibus allegation which is not proper as per the

settled principles of law.

20. I find no substance in the said argument as all

the prosecution witnesses alleged that the said appellants Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

also indulged in making the demand of dowry from the

victim and the appellants did not get success in eliciting

any fact from the prosecution witnesses during their cross-

examination to show that the appellants had separate affairs

from the victim's husband and the evidence of Investigating

Officer (PW 12), who inspected the place of occurrence,

also does not go to show that the appellants were living

separately from the husband of the victim. Hence, mainly

on account of the main allegations being general and

omnibus against them, they cannot be deemed to be

innocent.

21. It has been further argued by learned counsel

for the appellants that all the circumstances appearing

against the appellants, from the prosecution evidences, were

not put to them while recording their statements under

Section 313 of Cr.P.C., so mainly on this ground the

judgment impugned is not sustainable in the eyes of law.

22. In the light of the said contention, I have

perused the statements of the appellants recorded under

Section 313 of Cr.P.C., though their statements were

recorded in a very brief manner but two main circumstances Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

relating to demand of motorcycle and physical assault

committed by them with the victim soon before her death

were put to them by the trial court, so not putting the other

circumstances appearing against them from the

prosecution's evidences did not prejudice them seriously.

Moreover, the appellants did not raise the issue of non-

explanation of all the circumstances appearing against them

from the prosecution witnesses before the convicting trial

court nor in this regard any ground has been made by them

in their memo of appeal which is sufficient to show that on

account of non-explanation of the circumstances appearing

against them from the prosecution evidence, none of them

felt prejudiced. Hence, I find no force in the said

contention.

23. In the light of the above discussed facts and

evidences available on the case record of the trial court, I

am of the considered view that the prosecution succeeded to

prove that all the appellants used to torture the victim for

demand of a motorcycle and finally they assaulted her

brutally and also subjected her to physical assault soon

before her death and killed her by strangulation on account Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

of non-fulfilment of their demand of a motorcycle by the

victim and also concealed the dead body by throwing it near

a railway station, hence the necessary elements to constitute

the offences punishable under Sections 304(B) and 201 of

IPC attract in the present matter and the trial court rightly

convicted the appellants for the said offences.

24. So far as the quantum of punishment of

imprisonment awarded upon the appellants for the offence

punishable under Section 304(B) read with 34 is concerned,

having taken into account the circumstances relating to their

family background and their liability of their family, I am

of the view that sentence of 10 years of rigorous

imprisonment awarded upon the appellants appears to be at

higher end and if the sentence is reduced to the period of

custody undergone by the appellant/Gayan Prakash, then it

will be sufficient to meet the ends of justice and the

punishment of imprisonment for seven years to other

appellants for the offence punishable under Section

304(B)/34 of the IPC will be sufficient to meet the ends of

justice. Accordingly, the punishment of 10 years of rigorous

imprisonment awarded upon the appellant/Gayan Prakash Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

for the offence punishable under Section 304(B) read with

34 of IPC is hereby reduced to the period of custody

undergone by the said appellant till the date of

communication of this judgment to the jail authority

concerned and as the punishment of imprisonment for 3

years awarded under Section 201/34 of IPC upon the said

appellant has completed, hence the appellant/Gayan

Prakash in Cr. Appeal (SJ) No.2426 of 2017 is directed to

be released forthwith as per above direction, if his custody

is not required in any other case.

25. The punishment of 10 years of rigorous

imprisonment awarded upon appellants/Ajay Ray @ Ajay

Kumar Ray and Anita Devi for the offence punishable under

Section 304(B)/34 of IPC is hereby reduced to the period of

7 years but their punishment for the offence under Section

201/34 of IPC awarded by trial court will remain

unchanged.

26. As both the appellants, namely, Ajay Ray @

Ajay Kumar Ray and Anita Devi in Cr. Appeal (SJ)

No.2466 of 2017 are on bail and their present custody

period till date is less than 7 years, hence their bail bonds Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

are hereby cancelled and they are directed to surrender

before the convicting trial court within 15 days from the

date of communication of this judgment to the trial court

and serve the remaining part of their 7 years rigorous

imprisonment for the offence punishable under Section

304(B)/34 of IPC.

27. It is clarified that the punishment of fine will

remain unchanged and the appellant/Gayan Prakash shall be

released after the payment of fine and if he does not pay the

fine amount then he shall have to undergo three months of

simple imprisonment as per the sentence of the trial court

and the appellants/Ajay Ray @ Ajay Kumar Ray and Anita

Devi shall have to undergo the said period of three months

of simple imprisonment in addition to the period of seven

years of rigorous imprisonment awarded upon them after

modification in the sentence awarded by the convicting trial

court for the offence punishable under Section 304(B)/34 of

IPC, if they default in the payment of fine amount.

28. In result, both the appeals stand dismissed

with modification in the quantum of sentence of

imprisonment, as mentioned above, for the offence Patna High Court CR. APP (SJ) No.2426 of 2017 dt.31-08-2023

punishable under Section 304(B) read with 34 of IPC

awarded by the trial court upon the appellants.

29. Let the records of these appeals be returned

to the Trial Court forthwith.

30. Let a copy of the judgment be communicated

to the Superintendent of the concerned jail for record and

compliance.

31. Interlocutory application/s, if any, also stand

disposed of accordingly.

(Shailendra Singh, J)

Sanjay/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          05.09.2023
Transmission Date       05.09.2023