Rupchand Kewat vs The State Of Bihar And Ors
2023 Latest Caselaw 3205 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.420 of 2016
          Arising Out of PS. Case No.-86 Year-2011 Thana- ISLAMPUR District- Nalanda
     ======================================================

Rupchand Kewat s/o Late Sukhu Kewat r/o Village- Dharampur, P.S. Chandi, Dist- Nalanda.

... ... Appellant/s Versus

1. The State of Bihar

2. Indal Kewat son of Krishna Kewat

3. Krishna Kewat son of Late Keshav Kewat

4. Bachchia Devi @ Bachchi Devi w/o Krishna Kewat Respondent nos. 2 to 4 are R/o village Dharampur, P.S. Chandi, Dist- Nalanda

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 80 of 2016 Arising Out of PS. Case No.-86 Year-2011 Thana- ISLAMPUR District- Nalanda ======================================================

1. Krishna Kewat son of Late Keshwar Kewat

2. Bachiya Devi @ Bachi Devi W/o Krishna Kewat Both are resident of Village- Sundar Bigha, P.S. Islampur, District- Nalanda.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 167 of 2016 Arising Out of PS. Case No.-86 Year-2011 Thana- ISLAMPUR District- Nalanda ====================================================== Indal Kewat Son of Krishna Kewat Resident of village- Suhndar Bigha, P.S.- Islampur, District- Nalanda

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

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

(In CRIMINAL APPEAL (DB) No. 420 of 2016) Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

For the Appellant/s : Mr.Amrendra Kumar Sinha, Adv. For the State : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (SJ) No. 80 of 2016) For the Appellant/s : Mr. Anil Kumar, Adv.

Mr.Tej Narayan Singh, Adv.

For the State : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (SJ) No. 167 of 2016) For the Appellant/s : Mr. Anil Kumar, Adv.

Mr.Tej Narayan Singh For the State : Mr. Abhimanyu Sharma, APP ======================================================

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 24-07-2023

We have heard Mr. Anil Kumar for the

appellants in Cr. App. (SJ) No. 80 of 2016 and Cr. App.

(SJ) No. 167 of 2016. The Cr. App. (DB) No. 420 of

2016, which is for enhancement of sentence to the

appellants, has been addressed by Mr. Amrendra Kumar

Sinha, learned advocate. Mr. Abhimanyu Sharma,

learned counsel for the State has appeared in all the

three appeals.

2. Sunita Devi, wife of the appellant/Indal

Kewat is alleged to have been killed sometimes on

25.05.2011. Her father Rupchand Kewat (P.W.7) lodged

the F.I.R. alleging that on 26.05.2011, he learnt that his Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

daughter has been killed by strangulating her and her

dead body has been disposed off. On such information,

he immediately proceeded to the matrimonial home of

his daughter but did not find any one of the appellants in

the house. On suspicion because of such information

having been received by him, he enquired from the

neighborhood and learnt that about a day before i.e. on

25.05.2011, there had been a fight between his

daughter (deceased) and his son-in-law/appellant/Indal

Kewat whereafter the father-in-law, the mother-in-law

and the husband of the deceased killed her and disposed

off the dead body. He has also alleged in the F.I.R. that

the deceased was always pestered and troubled for

additional dowry about which she used to complain but,

her hurt feelings were assuaged by P.W.7 who made her

understand that with the passage of time, such

behaviour of the husband and the in-laws would

improve. He has therefore asserted that the deceased

was first killed by strangulating her and then her dead Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

body was burnt.

3. On the basis of the aforenoted fardbeyan

statements of P.W.7, Islampur P.S. Case No. 86 of

2011 dated 26.05.2011 was registered for investigation

under Section 304(B), 201/34 of the Indian Penal Code.

4. The police after investigation had submitted

charge-sheet whereupon cognizance was taken and the

case was committed to the court of sessions for trial.

5. The learned Trial court, after having

examined 12 witnesses on behalf of the prosecution and

none on behalf of the defence, convicted the appellants

under Section 304(B)/34 and 201/34 of the Indian

Penal Code vide judgment dated 11.01.2016 passed in

Sessions Trial No. 551 of 2011 by the 2 nd Additional

District and Sessions Judge, Hilsa at Nalanda and vide

order dated 16.01.2016, the appellants were sentenced

to undergo R.I. for 10 years and R.I. for 7 years for the

offences under Sections 304(B) and 201/34 of the I.P.C.

respectively along with a fine of Rs. 10,000/- each and Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

in default of payment of fine to further suffer R.I. for 3

years. The sentences were ordered to run concurrently.

6. Mr. Anil Kumar, learned advocate for the

appellants who are the parents-in-law and husband of

the deceased, has firstly stated that all the appellants

after having served the sentence awarded to them have

now come out of jail. However, he insists that he shall

press the appeal on merits.

7. It would be relevant here to note that the

Informant of this case/P.W.7 has also preferred an

appeal vide Cr. App. (DB) No. 420 of 2016 under the

proviso to Section 372 of the Cr.P.C. for enhancement

of sentence.

8. Section 372 Cr.P.C. provides that no appeal

shall lie from any judgment or order of a Criminal Court

except as provided by this Code by any other law for the

time being in force. The proviso to Section 372 Cr.P.C.

further mandates that the victim shall have a right to

prefer an appeal against any order passed by the Court Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

acquitting the accused or convicting for a lesser offence

or imposing inadequate compensation, and such appeal

shall lie to the Court to which an appeal ordinarily lies

against the order of conviction of such Court.

9. A bare reading of the proviso would indicate

that an appeal at the instance of the victim under

Section 372 Cr.P.C. can only be filed under the three

circumstances viz. in case of the Court acquitting the

accused persons, or convicting for a lesser offence or for

imposing inadequate compensation.

10. The appeal in the present case on behalf of

P.W.7 has been preferred for enhancement of sentence

which is not maintainable. For enhancement of sentence,

the provision is Section 377 Cr.P.C. wherein the State

Government could prefer an appeal against the

sentence. On that score alone, the appeal preferred by

P.W.7 viz. Rupchand Kewat fails and is dismissed.

11. We may however note that considering the

pendency of the appeal referred to above which was Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

entertained by a Division Bench of this Court, the two

appeals viz. Cr. App. (SJ) No. 167 of 2016 and Cr.

App. (SJ) No. 80 of 2016 respectively, which ordinarily

would have been listed before a single Judge of this

Court according to Patna High Court Rules, have been

entertained by us in the Division Bench as it was tagged

along with Cr. App. (DB) No. 420 of 2016.

12. The Informant/P.W.7 during the trial has

though supported the prosecution case but has not been

able to bring forth positive evidence against the

appellants regarding their having killed the deceased and

disposing off the dead body.

13. The marriage of the deceased, according to

him, had taken place in the year 2008 and the deceased

used to complain about the bad behaviour and ill

treatment to her in her marital home to P.W.7. He has

however not disclosed to the Trial court the identity of

the person who told him on 26.05.2011 that the

deceased has been killed and her dead body has been Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

burnt.

14. Not disclosing the name of such person

would not have otherwise assumed relevance but for the

fact that it is the consistent case of the defence that the

deceased was not killed and that necessary information

regarding the death was given to the Informant but, the

case was lodged on wrong advice or for some ulterior

purposes.

15. What is striking to note is that after

receiving the information on 26.05.2011 of the

deceased being killed on 25.05.2011 only, the FIR was

lodged. The police of Islampur Police Station went along

with P.W.7 to the house of the appellants but, no one

was found. No incriminating articles were also found in

the house, the doors of which were left ajar.

16. An effort was made to find out the dead

body and ultimately the dead body was found out on

27.05.2011 in presence of many persons, some of

whom have been examined as P.Ws. 1, 2 & 3 Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

respectively.

17. Mr. Anil Kumar has argued that such

finding of the dead body and its identification to be that

of Sunita is absolutely doubtful. He says so for the

reason that there is nothing on record to indicate the

clue to the police to go to the place from where the dead

body was recovered. Nobody appears to have guided the

police to the place from where a sack containing the

dead body, purportedly of Sunita, was found. The sack

in question containing the dead body of Sunita, was

recovered from a ditch below a bridge. The legs and

hands of the dead body were protruding out of the sack.

The sack was alleged to have been opened at the place

where it was recovered where the same was identified to

be that of Sunita.

18. These set of information would have been

properly collated into a definite piece of evidence with

respect to the recovery of dead body, had the inquest

report been brought on record.

Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

19. It has been urged before us that the dead

body according to the I.O./P.W.12 was sent straightway

from the place of recovery to the Biharsharif Hospital for

postmortem and all the witnesses, who have identified

the dead body to be that of Sunita, claimed to have seen

such dead body in Islampur Police Station. On this score

alone, the tall claim of the prosecution that the dead

body was definitely of Sunita as it was identified by the

relatives, falls to the ground. The false claim of the

prosecution further comes to the fore when the

deposition of the Doctor/P.W.11 is analyzed.

20. The postmortem on the dead body was

conducted on 28.05.2011 at about 08.20 AM. The

Doctor/P.W.12 found the dead body to be totally

decomposed and swollen. Rigor mortis was

conspicuously absent. The tongue was protruding out

and the abdomen was distended. Most of the skin from

the body of the deceased had peeled off and there were

maggots crawling on the surface of the dead body. Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

21. With this finding, it is difficult for us to

accept that a dead body which was recovered from a

sack, thrown in a ditch for some days could be identified

by even the father or the relatives of the deceased. Had

that not been so, the inquest report which is said to have

been prepared by the I.O. would have been brought on

record. There is no recovery memo of the dead body

when admittedly some of the relatives of the deceased

were present.

22. The findings of the Doctor about the

tracheal cartilage being fractured thus would be of no

avail to us in accepting his report that the death

occurred due to asphyxia caused by strangulation.

23. With such decomposed body for the

postmortem examination, the findings of the Doctor

appear to us to be totally unacceptable. The ligature

mark or the bruises over the body of the deceased could

not be discovered by P.W.12 because of the skin having

peeled off because of the decomposition. Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

24. There is yet another fact which strikes us

rather strongly. Could that have been the dead body of a

person killed only within a time span of five days. Bodies

do not discompose to this condition in mere five days.

We have nothing on record also to come to any

conclusion whether the sack was beneath the mud or

water, let alone the correctness of the findings of the

Trial court that the identification of the deceased to be

that of Sunita was foolproof for convicting the appellants

for the offence under Section 304(B) of the I.P.C.

25. In this context, we have analyzed the

deposition of the other witnesses, especially P.Ws. 1, 2

& 3 who are related to the Informant and the deceased.

26. P.W.1 (Bachu Prasad) is the cousin of

P.W.7 who was informed by the P.W.7 to come to

Islampur Police Station to lodge the case against the in-

laws of the deceased. P.W.1 claims to have gone to the

police station and then only he learnt about the

occurrence. He again visited the house of the appellants Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

on the next day along with P.W.7 and the police party

and claims to have overseen the process of recovery of

the dead body from a ditch. However, in his entire

deposition, he does not say that he had any inkling or

idea about the deceased having been killed at the hands

of the appellants.

27. In his cross-examination, he has admitted

that though he had accompanied the police party to the

place of recovery but his statement was not recorded

then. This again assumes significance especially when he

was in know of the facts which is the bedrock of the

prosecution version. The deceased according to him was

fairly literate whereas her husband was illiterate. P.W.1

has but denied the suggestion that the deceased had

committed suicide because of her having failed in the

matriculation examination.

28. Lalmuni Devi (P.W.2) and Bilash Kewat

(P.W.3) who are husband and wife and related to P.W.7

and deceased, have only stated before the Court that Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

they had identified the dead body to be that of Sunita at

Islampur Police Station.

29. Their deposition therefore cannot be

believed for the purposes of relying upon the

prosecution's claim of the dead body of Sunita having

been recovered and put to postmortem examination.

30. Rest all other witnesses are hear-say who

have fallen prey to the stray information to them that

there was a fight between the husband and the wife in

the night of 25.05.2011 for payment of additional dowry

whereafter she was killed.

31. The entire fabric of prosecution story,

according to us, is not believable. We say so for the

reason that there could not have been any discord

between the spouses regarding the educational

qualification of the deceased. The family of the

appellants knew that the daughter-in-law was more

educated than the groom. If that would have been the

reason, the occurrence would have been executed Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

sometimes earlier.

32. There is yet another reason to find fault

with this proposition. Admittedly, all the witnesses have

repeated that the deceased was made to write the

examination while staying in her matrimonial home.

Thus, it is quite logical to infer that the deceased was

accepted in the family and her academic pursuits were

not opposed to by the appellants.

33. The question which confronts us now is as

to where is Sunita? The appellants have not made any

effort to explain the absence of Sunita from her

matrimonial home.

34. At this stage, learned counsel for the

Informant as also the State have drawn our attention to

the provisions contained in Section 106 of the Evidence

Act viz. that when any fact is especially within the

knowledge of any person, the burden of proving that fact

is upon him, to assert that the parents-in-law and the

husband of the deceased were the best persons to Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

explain the absence of the deceased from her

matrimonial home.

35. Mr. Anil Kumar, learned counsel for the

appellants however in response to the aforenoted

arguments has submitted that the prosecution has first

to stand on its own legs before finding fault with the

defence or their obligation under Section 106 of the

Evidence Act.

36. The consistent case of the defence has

been that the deceased committed suicide, which fact

was made known to the Informant and others but, a

false case has been lodged against them.

37. Had this case not been false, the appellants

would have taken care to hide themselves. Merely

because they were not to be found in the house on

26.05.2011 when P.W.7 along with the police party had

come to their house, is no evidence strong enough to

indicate that they were fugitives with guilty mind.

38. The prosecution thus has miserably failed in Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

proving the case beyond all reasonable doubts. On top of

it, the learned counsel for the appellants has submitted

that whatever be the nature of evidence, the appellants

have been singularly unfortunate to have served the

entire sentence awarded to them, as these appeals were

never taken up for hearing during the period when they

were facing incarceration.

39. After giving thoughtful consideration over

the facts of this case, we though have not come to any

finding as to where was Sunita and why her absence was

not explained but, there is no difficulty in rejecting the

prosecution case that the dead body, which allegedly

was recovered, packed in a sack, from a ditch, was that

of Sunita. It is very difficult to accept the proposition of

the prosecution that such maggot ridden decomposed

dead body could be identified by anyone. The time fixed

for death also does not fit in the scheme of the

prosecution case. There would not be such

decomposition within a period of five days. The deceased Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

is said to have been killed sometimes on 25.05.2011 if

the witnesses are to be believed.

40. Thus on this score also, the prosecution

case falters and, under such circumstances, it is difficult

for us to affirm the judgment of conviction and order of

sentence against the appellants.

41. For the reasons aforenoted, the appeals viz.

Cr. App. (SJ) No. 167 of 2016 and Cr. App. (SJ) No. 80

of 2016 are allowed.

42. The the judgment of conviction and order

of sentence are set aside.

43. Since the appellants have already served

out the sentence awarded to them, there is no need to

pass any further order.

44. As noted above, the appeal preferred under

the proviso to Section 372 of the Cr.P.C. by Rupchand

Kewat for enhancement is dismissed.

45. All the three appeals are disposed of

accordingly.

Patna High Court CR. APP (DB) No.420 of 2016 dt.24-07-2023

46. The records of this case be sent to the

court below forthwith.

47. We have been further informed that during

the pendency of appeal, one of the appellants namely

Bachiya Devi @ Bachi Devi (in Cr. App. (SJ) No. 80 of

2016) was released on bail after her sentence was

suspended.

48. She is discharged of her liabilities under the

bail bonds.

(Ashutosh Kumar, J)

( Vipul M. Pancholi, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.07.2023
Transmission Date       27.07.2023