Ram Nath Thakur vs The State Of Bihar
2023 Latest Caselaw 3231 Patna

       IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.86 of 2017
       Arising Out of PS. Case No.-74 Year-2013 Thana- PAROO District- Muzaffarpur
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Ram Nath Thakur S/o Rajendra Thakur Resident of Village - Daudpur, P.S. - Paroo, District - Muzaffarpur.

... ... Appellant/s Versus

The State Of Bihar ... ... Respondent/s ============================================== Appearance:

For the Appellant/s : Mr. Suraj Narain Yadav, Advocate Mr. Upendra Kumar Chaubey, Advocate Mr. Naresh Kumar Mehta, Advocate Mr. Satish Kumar, Advocate Mr. Masoom Alam, Advocate 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 : 25-07-2023

1. We have heard Mr. Suraj Narayan Yadav,

the learned Advocate for the appellant and Mr.

Abhimanyu Sharma for the State.

2. The appellant, who is the husband of the

deceased has been convicted for the offences under Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

Sections 302/201 of the Indian Penal Code vide

judgment and order dated 10.11.2016 passed by the

learned 13th Additional Sessions Judge, Muzaffarpur in

Sessions Trial No. 20 of 2016, arising out of Paroo P.S.

Case No. 74 of 2013, and has been sentenced to

undergo R.I. for life, to pay a fine of Rs. 10,000/- and

in default of payment of fine, to further suffer

imprisonment for two months and R.I. for four years

under Section 201 of the IPC. The sentences have been

ordered to run concurrently.

3. The FIR has been registered by Baichu Thakur

(PW-4), who is the father of the deceased on

22.05.2013, alleging that his daughter was married to

the appellant on 08.04.2001 as per Hindu rites and

customs. However, since the beginning of the marital

life, the deceased was troubled in various ways by the

appellant and members of his family. The intercession

by PW-4 did not bear any fruit and his daughter had to

come back to her parental home. Vexed by this, the

deceased had to file a case against the appellant, which Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

was pending consideration before a Court of law. Under

the orders of the Court, the deceased had gone to join

the appellant in her matrimonial home and within one

month, she was killed by the appellant and several

others whose names have been stated in the FIR and

the dead body was disposed of stealthily without

informing the PW-4 or any other members of the family

of the deceased about such death.

4. On the basis of the afore-noted written report

lodged by PW-4, Paroo P.S. Case No. 74 of 2013 dated

22.05.2013 was instituted for investigation for offences

under Sections 302/34 and 201 of the IPC. The police,

however, did not find the entire accusation by PW-4 to

be correct and therefore only chargesheeted the

appellant and his father (father-in-law of the

deceased), who two were put on trial.

5. The Trial Court after having examined six

witnesses on behalf of the prosecution and none on

behalf of the defence, convicted the appellant as

aforesaid but acquitted Rajendra Thakur (father-in-law Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

of the deceased) for paucity of evidence against him.

6. Hence this appeal.

7. Mr. Yadav, the learned Advocate for the appellant

has submitted that there is no evidence worth the name

to convict and sentence the appellant. True it is that the

wife of the appellant has died but the death has not

taken place under any mysterious circumstance. The

deceased died a natural death after a brief illness which

fact was made known to the informant and others.

However, at the instance of the brother of the deceased

namely, Ram Nath Thakur, his own namesake (PW-2),

this case was lodged against him. The other witnesses

at the trial have not supported the prosecution version

at all.

8. As opposed to the afore-noted contentions, Mr.

Abhimanyu Sharma, the learned APP has submitted

that the deceased died under circumstances which are

not known to anybody. It was, therefore, the duty of

the appellant to have explained the nature of illness

and the immediate cause of death of the deceased. Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

That apart, in the absence of any evidence that last

rites were performed before the dead body was

cremated, it can only be presumed that such cremation

of dead body was done in stealth for preventing any

evidence to come to the fore with respect to her being

killed. Apart from this, he has submitted that the

Trial Court was absolutely justified in convicting the

appellant as there was a previous history of the

deceased having been ill-treated by the appellant and

his family members, forcing her to leave her

matrimonial home and go to her parental home. It was

only under the orders of the Court that the deceased

had come to the matrimonial home, but alas, was killed

within a month of her joining the appellant as her

husband. There is definite assertion of some of the

witnesses, Mr. Abhimanyu Sharma argues, that the

appellant had married another lady and it was for that

reason that the deceased was eliminated with the

concerted efforts of the other family members of the

appellant. Had it not been the case, it is argued, the Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

father and the brother of the deceased would surely

have been informed and they would have participated

in the last rites. If the case was filed on wrong advise,

it was for the appellant to have brought on record some

evidence regarding the information given to the family

members about the cause of death and their

participating in the final journey of the deceased. Thus,

the circumstances clearly reveal that the deceased died

in mysterious circumstances and in the present case,

non-explanation of the cause of death by the appellant

justifies the conviction and the sentence imposed on

him is absolutely condign. Thus, it has been urged that

the judgment and order of conviction needs no

interference by this Court.

9. We have examined the evidence on record and

have found that but for PW-2, who is the brother of the

deceased, nobody has supported the prosecution

version. Surprisingly, the informant, who is the father

of the deceased has somersaulted and has stated

before the Trial Court that the deceased died because Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

of illness. The deceased had been suffering from some

illness for which PW-4 had also got her treated and in

her matrimonial home also, treatment was being given

to her. He had very cordial relations with the family of

the appellant and he was treated with great respect.

With respect to the lodging of the FIR by him, he has

deposed before the Trial Court that an application was

written by somebody at his instance, the contents of

which application he could not understand. From the

FIR (exhibit-1), it appears that the FIR was scribed by

one writer namely, Bidhu Kant Mishra, whose name has

been inscribed on the left hand side of the formal FIR.

Neither aforesaid Bidhu Kant Mishra nor the person

named by PW-4, who was engaged to write the FIR,

have been examined before the Trial Court.

10. This, therefore, leaves us with some doubts

whether the PW-4 knew about the contents of the FIR

which contained allegations against the appellant of

having contracted another marriage during the

subsistence of her marriage with the deceased and the Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

ill-treatment of the deceased and her ultimate death.

PW-4 has been declared hostile.

11. This leaves us with the deposition of the brother

of the deceased, who has been examined as PW-2

before the Trial Court. Though, he has supported the

prosecution version but does not give the details of the

case which was lodged by the deceased against her

husband, when she had to come back from her

matrimonial home to her parental home because of ill-

treatment meted out to her. The nature and the details

of the case lodged by the deceased against the

appellant and his family would not have been so

important, had the allegation been supported by other

family members or the father of the deceased. Not

having done that, the prosecution has missed out on

necessary link evidence for the Court to come to a

definite finding that she was being ill-treated in her

home and therefore she had to, for a large part of her

marital, life live with her parents.

12. We have no evidence even through the mouth of Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

PW-2 regarding the time she had spent in her parent's

home or whether she had given birth to any child out of

the wedlock. That the deceased had gone to stay with

her husband is clearly indicative of the fact that good

relations had been restored. Till the time that she

stayed with her husband/appellant in her matrimonial

home, there was no complaint by the deceased;

otherwise the same would have been reported by her to

her family members. If that would have been the case,

it would not have been without her past experience of

registering her protest in case of ill treatment.

13. One of the neighbours of the appellant namely,

Shankar Thakur has been chosen by the prosecution to

stand in the witness box to depose against the

appellant as he would be in a better position to know

about the occurrence which may have taken place in his

neighbour's house. Shankar Thakur (PW-1), however,

has expressed complete ignorance about the deceased

having been killed; rather he has categorically stated

that prior to her death, the deceased had suffered colic Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

pain for which she was treated, but ultimately she died.

He did not know about the strained relationship of the

deceased with her husband or her in-laws.

14. Mahendra Thakur (PW-3), a villager of the

accused has also not supported the prosecution case in

any manner whatsoever.

15. This leaves us with two other witnesses who have

categorically been declared hostile. Even their

deposition do not throw any light on the cause of death

of the deceased. With such evidence on record, it is

difficult to presume that the deceased was killed and

her dead body was disposed of stealthily. Though, there

are no evidence on record to indicate that the last rites

were performed in presence of onlookers and family

members but in the absence of any one of the

prosecution witnesses deposing that the deceased was

stealthily burnt and her dead body disposed of, we are

left with no material to affirm the judgment of the Trial

Court.

16. After having perused the Trial Court judgment, Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

we find that it has gone more on circumstance, namely,

the deceased not having good relations with her

husband in the beginning, for which she had filed a

case and her joining the matrimonial home only after

an order by the Court was passed. This according to the

Trial Court was a big indicator towards the deceased

having died under mysterious circumstances within a

month of her joining her matrimonial home.

17. True it is that this indicates towards a situation

where it could be doubted whether the deceased had

died her natural death. But, for coming to such

conclusion, the Court had to look for other evidence,

especially the evidence with respect to the kind of

allegation levelled by her earlier against her husband,

the veracity of the accusation that the appellant had

married someone else during the subsistence of his

marriage with the deceased and the nature and content

of the order under which the deceased had gone to the

matrimonial home. Was that a settlement between the

spouses or was only a temporary measure in order to Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

test whether the spouses could live together happily

and peacefully, was required to be verified before

taking this indice as one of the definite evidence for

coming to the conclusion that the deceased was

definitely killed and the dead body was disposed of.

18. In this context, we are forced to ask a question to

ourselves as to what may have happened to the

deceased. There is no evidence of any serious illness of

the deceased. What was the medication administered to

her before she died is also unknown to us.

19. This again leaves us with the possible recourse to

an explanation from the accused persons, especially the

appellant who is the husband of the deceased as to

what had happened. Neither under 313 of Cr.P.C.,

anything has been mentioned by the appellant nor any

evidence has been brought forth by him to explain the

kind of illness suffered by the deceased immediately

prior to her death and the cause of her death. Since the

dead body has been cremated, no post-mortem was

done and the I.O. of this case has also not been Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

examined. No explanation also appears on record for

the non-examination of the I.O.

20. The Trial Court ought to have made some efforts

for ensuring the taking of evidence of the I.O. of this

Case, which would have thrown some light on the

investigating process and the materials against the

appellant.

21. Whether recourse to Section 106 of the Evidence

Act straightaway would be justified is the question

which confronts us? Section 106 of the Indian Evidence

Act, 1872 provides that when any fact is especially

within the knowledge of any person, the burden of

proving that fact is upon him. One of the illustrations is

that if 'A' is charged with travelling on a railway without

a ticket, the burden of proving that he had a ticket is

on him.

22. The deceased admittedly was residing with

the appellant. She died after complaining of stomach

pain. Therefore, it was the duty of the

husband/appellant to have explained the cause of death Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

of the deceased. That does not appear to have been

done. Nonetheless, whether this lapse on the part of

the appellant can be read against him for convicting

and sentencing for the offence under Section 302.

23. The answer is in the negative.

24. The reasons are that if the death of the deceased

was under normal circumstances, accelerated by some

illness, which could not be diagnosed, no further

formality was required except for providing information

to the family members of the deceased, in the

neighbourhood and performing the last rites.

25. It appears and as has been argued by Mr. Yadav,

the same thing was done by the appellant. Had there

been any doubt with respect to the deceased having

died a natural death, it would have been incumbent

upon the appellant or the other family members to have

explained the circumstances of the death for coming

out of the dragnet of the present prosecution. It has

been argued that such accusation comes only later, at

the insistence of the brother of the deceased (PW-2). Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

26. Thus, in this situation, we are in a dilemma

whether to accept the deposition of the father of the

deceased or the brother of the deceased.

27. That apart, for pressing Section 106 of the Indian

Evidence Act, 1872 into play, the Trial Court needed to

understand that Section 106 is only an exception to

Section 101 of the Evidence Act. Section 101 lays

down the general rule about the burden of proof.

"Whoever desires any Court to give judgment as to any

legal right or liability dependent on the existence of

facts which he asserts, must prove that those facts

exists." This is the general rule namely, that in a

criminal case, the burden of proof is on the prosecution.

Section 106 of the Evidence Act is certainly not

intended to relieve the prosecution of its duty. On the

contrary, it is designed to meet certain exceptional

cases in 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 and which he could prove Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

without difficulty or inconvenience (refer to Shambhu

Nath Mehra Vs. State of Ajmer, 1956 Supreme

Court, 400)

28. The Supreme Court in the afore-noted case went

on to explain that the word "especially" means that

facts that are pre-eminently or exceptionally within the

knowledge of the person concerned is required to be

explained.

29. If the Section were to be interpreted otherwise, it

would lead to very startling conclusion that in a murder

case, the burden would lie on the accused to prove that

he did not commit the murder, because who could know

better than he, whether he did or he did not.

30. Thus, pressing Section 106 of the Evidence Act

for trying to ascertain the cause of death and in the

absence of any explanation from the appellant, holding

him guilty, would be reading against the criminal

jurisprudence in a criminal trial. The prosecution is first

required to prove its case beyond all reasonable doubts.

31. As noted above, there is no evidence on record Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

with respect to any ill-treatment, the contents of the

charge of the deceased against the husband in the case

lodged by her reasons for her staying in matrimonial

home and for what time, the contents of the order

under which the deceased is touted to have gone to

her matrimonial home and the correctness of the

assertion that the appellant had married another person

during the subsistence of marriage. All these

lapses coupled with non-examination of the I.O. makes

the prosecution case highly doubtful and leaves us with

no option but to give benefit of doubt to the appellant.

32. For the afore-noted reason, we are not in

agreement with the opinion arrived at by the Trial Court

for convicting and sentencing the appellant. Perforce,

we set aside the judgment and order of conviction and

acquit the appellant of all the charges.

33. Since the appellant is in custody, he is directed to

be released from jail forthwith, unless his detention in

jail is required for any other reason.

34. This appeal is allowed.

Patna High Court CR. APP (DB) No.86 of 2017 dt.25-07-2023

35. Let a copy of this order be communicated to the

Superintendent of concerned jail for record and

compliance.

36. Let the records of this case be returned to the

Trial Court forthwith.

(Ashutosh Kumar, J)

( Vipul M. Pancholi, J) sunilkumar/-

shanawaz
AFR/NAFR         AFR
CAV DATE         N/A
Uploading Date    27.07.2023
Transmission      27.07.2023
Date