Suraj Kumar Sada @ Suraj Sada vs The State Of Bihar
2023 Latest Caselaw 5067 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.369 of 2017
       Arising Out of PS. Case No.-37 Year-2014 Thana- BIRPUR District- Supaul
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Suraj Kumar Sada @ Suraj Sada son of Bishnu Sada Resident of village - Puraini Ward no. 14, P.S. - Birpur, District - Supaul.

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

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

For the Appellant/s : Mr. Pramod Mishra, Advocate. For the Respondent/s : Mr. Abhimanyu Sharma, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 05-10-2023

We have heard Mr. Pramod Mishra, learned

Advocate for the appellant and Mr. Abhimanyu Sharma,

learned APP for the State.

2. The appellant, who is the husband of the

deceased, stands convicted under Section 302 of the

Indian Penal Code vide judgment dated 24.01.2017

passed by the learned Additional District & Sessions

Judge-I, Supaul in Sessions Trial No. 11 of 2015 arising

out of Birpur P.S. Case No. 37 of 2014 and vide order Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

dated 30.01.2017 he has been sentenced to undergo

imprisonment for life, to pay a fine of Rs. 20,000/- for the

offence under Section 302 of IPC.

3. A nineteen years old woman died in her

matrimonial home within one year of her marriage with the

appellant. The FIR was lodged by the father of the

deceased, viz. Nabi Lal Sada (P.W.5), who has alleged that

on 06.02.2014, his neighbour Tarachand Sada (not

examined) informed him that he had received a telephone

call from the matrimonial home of the daughter of the

informant that she has fallen seriously ill and that her

family members should come urgently.

4. On this information provided by his neighbour,

P.W.5 along with his wife and other family members went

to the matrimonial home of the deceased, where he found

his daughter dead. The dead body was kept on a cot with a

blanket spread over her. On removing the blanket, he saw

black marks on her neck and a circular spot on her back. It

was learnt from the villagers that on 05.02.2014, the Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

appellant had assaulted the deceased and had then taken

her inside the room and strangulated her. The deceased

was married to the appellant about a year ago and no child

was born out of the wedlock.

5. On the basis of fardbeyan of P.W.5, a case

vide Birpur P.S. Case No. 37 of 2014 was registered for

investigation for the offence under Section 302 of the

Indian Penal Code.

6. The police after investigation submitted charge-

sheet whereupon cognizance was taken and the case was

committed to the Court of Sessions for trial.

7. The Trial Court, after having examined eight

witnesses on behalf of the prosecution, convicted the

appellant under Section 302 of the IPC and sentenced him

for life imprisonment and to pay a fine of Rs. 20,000/-.

8. It appears from the records that the Doctor

who conducted the postmortem on the deceased (P.W.4)

found one ligature mark on the neck, but the same was Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

oblique and irregular. At the upper end of the neck, the

mark was very prominent and deep. No other injury was

found on the body of the deceased.

9. On the basis of the aforenoted nature of the

ligature, P.W. 4 concluded that the death was caused by

cardio-respiratory failure, which in turn was due to the

mechanical asphyxia caused by hanging/suicide. The time

elapsed since death was stated to be 24 hours before the

postmortem examination.

10. During the course of trial, P.W.4 was very

specific in his statement that he did not find any external

or internal injury on the person of the deceased. He has

further told the Court that the nature of ligature is possible

in suicidal deaths.

11. Even otherwise, the ligature not being regular

and the mark being prominent at the upper end of the

neck are indicators towards self-hanging and not

strangulation.

Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

12. In cases of strangulations, the ligature is

more often than not regular and the mark is even/regular.

With irregular ligature, it can be inferred that if a person

commits self-harm and hangs herself, the upper extremity

of the neck would stand damaged leading to asphyxiation.

No other injuries on the person of the deceased further

indicates that the information provided to P.W.5 was not

correct.

13. P.W.5 has not even stated the names of the

persons from whom he learnt about the deceased having

been assaulted and strangulated in the previous night.

However, P.W.5 was very specific in stating that he learnt

that not only the appellant assaulted the deceased but his

parents also.

14. This suggests that perhaps the appellant was

not at ease with himself or had displayed some drunken

behavior, or was not happy with his surroundings including

his parents and his wife.

Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

15. During the trial, P.W.5 has but stated that at

about 4 O'clock in the morning of 06.02.2014, the family

members from the matrimonial home of the deceased had

informed about some seriousness of the matter.

Thereafter, he along with his relatives including his wife

and many persons of the neighbourhood of the

matrimonial home of the deceased arrived at the place of

occurrence. The police was informed in his presence,

whereafter police party arrived and inquest was prepared

and only thereafter the dead body was taken to the

hospital for post-mortem.

16. P.W.5 only provided hearsay information, the

source of which remained undisclosed even during the trial,

that there had been a fight between the couple a night

before. On being questioned, he has admitted that the

case lodged by him was only on the basis of the

information provided to him.

Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

17. We have already noted that the source of

information was neither disclosed in the fardbeyan nor

during the trial.

18. Ramesh Sada, Sanfi Sada and Shukla Sada

P.Ws. 1, 2 and 3 respectively have not supported the

prosecution version and have been declared hostile. Uday

Chand Sada and Devi Lal Sada who are the cousin and

own brother of P.W.5 respectively and have been

examined as P.Ws. 6 and 7 respectively at the trial have

categorically stated that they received information that the

deceased had committed suicide. Their houses are situated

near the house of the father of the deceased (P.W. 5).

19. This takes us to the deposition of P.W. 8, the

Investigating Officer of the case.

20. Be it noted that he had taken over the

investigation only on 22.02.2014. The then Officer-in-

Charge of the concerned police station, who had recorded

the fardbeyan, has not been examined at the Trial. In his

cross-examination, P.W. 8 stated that P.W. 3 who has Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

been declared hostile had spoken before him during the

course of investigation that he had gone to the place of

occurrence, had seen the dead body and had also seen

that the rope tied to her neck was still there and that the

appellant had killed the deceased.

21. Beyond this, the Investigator has said nothing

which would throw any light on the prosecution case.

22. We must admit that he was never put to any

question on behalf of the defence.

23. Thus, there is no idea about the presence of

the family members of the appellant in the home when the

appellant is alleged to have assaulted not only the

deceased but his own parents.

24. For the last one year, there was no complaint

of the family members of the deceased against the

appellant or her parents-in-law. Had there been any

complaint, the father of the deceased (P.W. 5) would

surely have said that in his fardbeyan or during the Trial. Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

25. There could be some possibility of the

appellant not being happy with the deceased for no child

was born out of the wedlock. But then, the marriage was

only one year old.

26. In the absence of any allegation of torture,

immediately preceding death, the case rightly was

registered under Section 302 of the IPC and not under

Section 304B of the IPC. For a conviction under Section

302 to be sustained, there ought to be evidence, proving

beyond all reasonable doubts, the guilt of the accused.

27. As has already been noted, three of the

prosecution witnesses, namely, P.Ws. 1 to 3 have been

declared hostile. P.W. 5 admits of having lodged the case

only on the basis of information which was provided to him

by the neighbours of the appellant. The names of such

persons have not been disclosed by him. It is equally

surprising that if the mother and other family members of

the deceased had visited the place of occurrence and had Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

seen the dead body, no one except P.W. 5 came forward

to support the prosecution case.

28. This, coupled with the fact that the Doctor did

not find any injury on the person of the deceased and

inferred from the positioning of the ligature mark that it

could be a case of self-inflicted harm of hanging oneself

(suicide), we do not find it safe to affirm the conviction and

sentence of the appellant.

29. While saying so, we have also taken into

account the deposition of P.Ws 6 and 7, who are the

cousin and own brother of P.W. 5 and who reside only next

to the house of P.W. 5, that they had been informed that

the deceased had committed suicide.

30. What could have been the motive of

committing the crime is not known. There could be a

possibility of the deceased being fed-up with the behaviour

of the appellant. Or it could have been a case of solitary

act of assault which the deceased could not tolerate. Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

31. Thus, with this deficient evidence, conviction

under Section 302 would only be based on conjectures and

probabilities.

32. For the aforenoted reasons, we set aside the

judgment dated 24.01.2017/30.01.2017 passed by the

learned Additional District & Sessions Judge-I, Supaul in

Sessions Trial No. 11 of 2015 arising out of Birpur P.S.

Case No. 37 of 2014 and acquit the appellant of the

charge levelled against him.

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

be released forthwith from jail, if not detained or wanted in

any other case.

34. The appeal stands allowed.

35. Let a copy of this judgment be dispatched to

the Superintendent of the concerned Jail forthwith for

compliance and record.

36. The records of this case be returned to the

Trial Court forthwith.

Patna High Court CR. APP (DB) No.369 of 2017 dt.05-10-2023

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

disposed of accordingly.

(Ashutosh Kumar, J)

(Alok Kumar Pandey, J)

manoj/saurav-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          06.10.2023
Transmission Date       06.10.2023