Patna High Court
Baidyanath Pathak vs The State Of Bihar on 23 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.851 of 2014
Arising Out of PS. Case No.-77 Year-2011 Thana- SAHIYARA District- Sitamarhi
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Baidyanath Pathak, Son of Sri Yamuna Kant Pathak, Resident of Village-
Bathnaha, P.S.-Bathnaha, Distt.-Sitamarhi.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 23-01-2024
1. We have heard Mr. Ajay Kumar Thakur, the
learned Advocate for the sole appellant, who is the
husband of the deceased and Mr. Abhimanyu Sharma,
the learned APP.
2. The appellant has been charged under
Sections 302 and 304B of the IPC and Section 4 of the
Dowry Prohibition Act but vide judgment dated
12.08.2014
passed by the learned 1 st Additional
Sessions Judge, Sitamarhi in Sessions Trial No. 431 of
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
12 / 52 of 2013, arising out of Sahiyara P.S. Case No.
77 of 2011, the appellant has been acquitted of the
charges under Section 304B of the IPC and Section 4 of
the Dowry Prohibition Act but has been convicted under
Section 302 of the IPC. By order dated 21.08.2014, he
has been sentenced to undergo imprisonment for life, to
pay a fine of Rs. 50,000/- and in default of payment of
fine, to further suffer R.I. for one year for the offence
under Section 302 of the IPC.
3. The deceased died in her father's house.
The appellant was arrested on the same day by the
villagers and family members of the deceased and
handed over to the police. However, he was produced
before the Court two days later, the explanation being
that on one day, there was a strike of drivers plying the
vehicles on road.
4. The deceased and the appellant had come
to the house of the informant (P.W. 8), who is the father
of the deceased, on the occasion of the marriage of his
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
son. The son of the informant was married on
05.12.2011. The occurrence took place on the fourth
day of the marriage when some festivities were still
continuing.
5. According to the FIR lodged by P.W. 8, the
marital life of his daughter was going through the usual
rough and tumble of the domestic life. There were
demands of gold chain and motorcycle and ill-treatment
of the deceased in her matrimonial home.
6. According to the allegation in the
fardbeyan of P.W. 8, the demand still persisted and the
appellant was not ready to take back his wife (deceased)
to his workplace at Patna unless the demand of gold
chain and motorcycle was met.
7. The deceased and the appellant had fought
for the whole night and only when smoke billowed out of
the room in which the couple were sleeping, did the
informant get alarmed and got the door forced open.
The deceased lay motionless and it appeared that she
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
was also put on fire. The appellant, according to the FIR,
was arrested and handed over to the police.
8. Hence the case
9. During the trial, none of the witnesses have
supported the prosecution version except for P.Ws. 1, 2
and 3 who too were declared hostile but they have
stated that they had learnt that the deceased had fought
with the appellant for the whole of the night on the issue
of her being taken by the appellant to his workplace at
Patna, which he was not willing to.
10. In this context, it would be profitable to
first examine the nature of injuries suffered by the
deceased which led to her death.
11. The post-mortem examination was
conducted on the same day by Dr. Uday Shankar
Priyadarshi (P.W. 9) and two others who formed a
medical team. There was no external injury on the
person of the deceased but on dissection of the neck, an
ecchymosis was found on the tracheal muscles. The
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
trachea was found to be congested. There were also
evidence of minor singeing which had affected the scalp
and the hair of the deceased. However, the burn injuries
noticed by the medical team during post-mortem
examination was decisively found to be post-mortem and
not ante-mortem.
12. On being questioned, P.W. 9 admitted
that in the case of hanging, the trachea would be
depressed.
13. We find that such a question and the
corresponding answer of P.W. 9 is not of any help at all
in resolving the mystery as to how the deceased died.
14. If the deceased would have died of
hanging, there would certainly have been contusions and
mark of ligature on the neck. If she were strangulated
with force to death, there would have been ligature mark
regardless of whether direct pressure was exerted on her
neck or it was softened by any soft cloth which might
have been used in the occurrence. Because of the
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
injuries suffered by the deceased, we have started
entertaining doubt whether the deceased was
strangulated for the purposes of killing her.
15. For us to infer that she was
strangulated for the purposes of killing her, there is
complete absence of any external injury or ligature mark
or contusion on the skin and the observation of the
Doctor of mild ecchymosis at a subcutaneous level only
reflects that the deceased was not strangulated for the
purposes of killing. The deceased but definitely died of
asphyxia and resultant cardiac respiratory failure.
16. What must have happened?
17. Why was she put on fire?
18. These questions could have been
answered by the witnesses who were present in the
house.
19. Unfortunately, they have turned volte-
face and have been declared hostile.
20. In this context, it would be relevant to
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
point out that the expression "hostile witness" does not
find mention in the Indian Evidence Act, 1872. It only
means testimony of a witness turning to depose in
favour of the opposite party. A witness may confirm the
prosecution version in the examination-in-chief, but
later, in cross-examination, may change his view in
favour of the opposite side. There could be cases, where
a witness would not support the prosecution case even in
examination-in-chief. With respect to the first category,
the Court is not denuded of its power to make an
appropriate assessment of the evidence rendered by
such a witness [refer to Rajesh Yadav and Anr. vs.
State of U.P. (2022) 12 SCC 200].
21. In C. Muniappan and Ors. v. State
of T.N. (2010) 9 SCC 567, the Supreme Court has
held that a witness cannot be rejected in toto merely
because the prosecution chose to declared him hostile
and cross-examined him. The evidence of such witness
may be accepted to the extent their version is found to
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
be dependable on careful scrutiny thereof [also refer to
Bhagwan Singh v. State of Haryana (1976) 1 SCC
389, Rabindra Kumar Dey v. State of Orissa
(1976) 4 SCC 233, State of U.P. v. Ramesh
Prasad Misra and Anr., (1996) 10 SCC 360].
22. Have they sided with the accused
persons for their ultimate understanding that there was
no intention to cause death?
23. Nothing is known and the fact scenario
leaves much space to speculate.
24. Thus with all the witnesses having gone
hostile, we have carefully examined the deposition of the
I.O., viz, Baidyanath Singh (P.W. 10). He has affirmed
before the Trial Court that the appellant was handed
over to the police by the father of the deceased as also
other family members and villagers. This had happened
some times on 09.12.2011. However, the appellant has
been produced in Court on 11.12.2011 only.
25. Taking clue from this fact, Mr. Thakur
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
has suggested that perhaps the deceased was not
present in the house and was arrested from somewhere
else and brought over to the police station. This
hypothesis does not fit in the scheme of the prosecution
story the way it has unfolded over the period of
investigation and Trial.
26. But similarly, there is another mystery
which needs to be resolved. If the appellant strangulated
the deceased in the night because of her insistence to
accompany him to his workplace which he was not
willing, where was the reason and how did he manage to
put her on fire for the burn injuries that were observed
during the post-mortem?
27. The death had taken place before the
deceased was put on fire.
28. Had the appellant put her on fire, there
would have been some attempts by the family members
to douse the fire. There is, unfortunately, no evidence
with respect to that.
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
29. The Investigator reached the house of
the deceased and found that the deceased had already
been covered with a yellow cloth and put in the
verandah of the house. There is no evidence, not even
the statement in the FIR, that the fire was doused and,
therefore, there was no more burning but only minor
singeing, affecting the only scalp and the hair of the
deceased.
30. With complete deficit of evidence with
respect to the deceased having been put on fire and the
fire then extinguished with the result that the deceased
did not burn completely and which burn injuries were
found to be post-mortem, one can only presume that
perhaps some attempts have been made to provide a
cover for either the deceased having committed suicide
or the action of the appellant in applying force, which
accidentally proved fatal, or something else which
remains obscure.
31. As noted above, the fact that deceased
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
died in her parental home and the appellant was
confined and then handed over to the police by his in-
laws, completely establishes the fact that on the day of
the death of the deceased, the appellant was present in
her house. Mere delay of two days in presenting the
appellant to the Court would not lead to any other
inference except that the police did not work according
to the rules and the book. That there was a mild
ecchymosis at a subcutaneous level over the neck
further confirms that the appellant had never intended to
kill the deceased. He was in the house of the deceased
which had many guests because of the continued
festivity after the marriage of the son of the informant.
The injuries on the person of the deceased, ante-
mortem, leads us to believe that the appellant never
intended to kill her. But he would surely be presumed to
have had the knowledge that any force exerted on the
neck of the deceased might result in death, which may
not be murder but definitely culpable homicide not
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
amounting to murder.
32. We, thus, discount all the stories
propounded by the defence. Linking the circumstances,
we have come to a definite finding that some force was
exerted on the deceased when she was
uncompromisingly insistent of her accompanying the
appellant to his place of work, which he was not willing
to acceded to.
33. This might have resulted in her death.
34. This was no accident but something
which occurred about which the appellant would not have
contemplated.
35. We, thus, find justification for the Trial
Court in not convicting the appellant for the offences
under Section 304B of the IPC and Section 4 of the
Dowry Prohibition Act as there is no evidence of any
torture for non-fulfilment demand of dowry even though
such was the projection in the fardbeyan of the father of
the deceased.
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
36. However, for the reasons stated above,
we find that the Trial Court perhaps did not consider the
aspects, which have been highlighted by us, for him to
have recorded the conviction under Section 302 of the
IPC.
37. The intention to kill is one of the major
ingredients for an offence to be counted as murder.
Intention is difficult to perceive as only the offender
knows what his intentions are. Nonetheless, the entire
circumstances are required to be put in a judicial
colander for establishing the specific intention for
causing the death of the deceased.
38. We have given our reasons for doubting
the requisite mens-rea of the appellant for killing his
wife.
39. The couple had been blessed with a son
who was also in the same house when the deceased had
died.
40. These facts compel us to convert the
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
conviction of the appellant from Section 302 of the IPC
to one under Section 304 Part II of the IPC; for he must
be presumed to have had the knowledge that any force
applied to a woman of whatever physiognomy, might
result in death or cause such injury which would end in
death.
41. The conviction of the appellant is thus
altered to one under Section 304 Part II of the IPC.
42. Now to the most beefy aspect of
sentencing.
43. It appears from the case records that
the appellant was in jail during the entire period of
investigation and Trial and was released on bail only
after his conviction on 07.09.2015. He thus has spent
about four years in jail. There has been no adverse
report about his conduct in jail. There is also nothing on
record which would demonstrate that he is beyond
reformation. On the contrary, Mr. Thakur, the learned
Advocate for the appellant has stated that the son of the
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
deceased is being well looked after in the family of the
appellant.
44. We have also given our anxious
consideration over the possibilities under which all the
witnesses including the father of the deceased had not
supported the prosecution case during Trial. Either the
father of the deceased was an emotion-less person who
might have traded with the appellant for some benefit;
or he would have known that the appellant never
intended to cause death; or that he only wanted to
secure the well being and happiness of his grand-son.
45. In two of the latter situations, the
appellant needs to be dealt with leniently.
46. For the reasons afore-noted, we deem
it appropriate and believe that the interest of justice
would be met if the sentence of the appellant is reduced
to the period of custody which he has already
undergone.
47. We order accordingly.
Patna High Court CR. APP (DB) No.851 of 2014 dt.23-01-2024
48. The appeal stands disposed off in the
light of what has been discussed above.
49. The appellant is on bail. He is acquitted
of the charge. He is discharged of the liabilities under his
bail bonds.
50. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
51. The records of this case be returned to
the Trial Court forthwith.
52. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
Sauravkrsinha/
Krishna-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 25.01.2024
Transmission Date 25.01.2024
