Patna High Court
Shambhu Sah @ Garbhu Sah vs State Of Bihar on 10 October, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.724 of 2004
======================================================
Sunita Devi @ Sumitra Devi @ Urmila Devi wife of Shambhu Shah @
Garbhu Sah, resident of village-Sadhwara, P.S. Simri, District-Darbhanga.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 764 of 2004
======================================================
Shambhu Sah @ Garbhu Sah son of late Nathuni Sah, resident of village-
Sadhwara, P.S. Simri, District-Darbhanga.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In Cr. App. (SJ) No. 724 of 2004 and Cr. App. (SJ) No. 764 of 2004)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
Mr. Ritwik Thakur, Adv.
Ms. Kiran Kumari, Adv.
Mr. Priyanshu, Adv.
For the State : Mrs. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
Date : 10-10-2025
Heard Ms. Vaishanavi Singh, learned counsel for the
appellants and learned Mrs. Anita Kumari Singh, APP for the
State.
2. The aforesaid two appeals are being taken up for
hearing together since they arise out of the same judgment and
order of conviction and sentence.
3. The aforesaid appeals under Section 374 (2) of the
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
2/32
Criminal Procedure Code, 1973 (hereinafter referred as
'Cr.P.C.') have been preferred against the common judgment of
conviction and order of sentence dated 12.10.2004 passed in
Sessions Trial No. 40 of 2002 (arising out of Simri P.S. Case
No. 36 of 2001) by the Court of the learned 1st Additional
Sessions Judge, Darbhanga (hereinafter referred to as the
learned 'Trial Judge'). By the said judgment the learned Trial
Judge has convicted the appellants of both the aforesaid appeals
for commission of offence under Sections 304B/34 and 201/34
of the Indian Penal Code (hereinafter referred to as the 'IPC')
and sentenced them to undergo rigorous imprisonment for seven
years for the offence under Section 304B/34 of the IPC and
rigorous imprisonment for two years for the offence under
Section 201/34 of the IPC. Both the sentences have however,
been directed to run concurrently.
4. The short facts of the case as disclosed in the first
information report based on the written report of the informant
Jaimangal Sah is that his daughter Chandra Kala Devi was
married with one Shambhu Sah (appellant) on 18.04.1995
according to Hindu rites and rituals, whereafter, she was
subjected to physical and mental torture by the accused persons
including the present appellants and a demand of Rs. 50,000/-
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
3/32
was made for the purposes of running a shop properly. It is
alleged that the informant paid some amount of money and tried
to pacify the matter, however, they remained adamant on their
dowry demand. Two children were born out of the wedlock of
the appellant Shambhu Sah and the deceased, who were aged
about 4 years and 2 years at the time of occurrence. The
informant has also alleged that his son-in-law i.e. appellant
Shambhu Sah was running a sweet shop at Patna where he
developed illicit relations with Sumitra Devi (appellant) who is
a resident of Patna and they began to inflict both physical and
mental cruelty upon the daughter of the informant on account of
demand of Rs. 50,000/-. On getting an information on
11.06.2001
with regard to the fact that his daughter has been
killed and the dead body has been made to disappear, the
informant reached the house of his son-in-law and he was
informed by the local people that his daughter was taken to
Muzaffarpur whereupon he had a very strong suspicion that his
daughter has been killed for want of demand of dowry and the
children have either been hidden somewhere or killed. On the
basis of the said written report, a formal FIR bearing Simri P.S.
Case No. 36 of 2001 was registered under Sections 304B, 201
read with 34 of the IPC on 14.06.2001 at around 2:15PM,
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
against five accused persons including the present appellants.
5. After investigation, the police submitted charge-
sheet on 14.11.2001 against the present two appellants, for
offences under Sections 304B, 201 and 34 of the IPC while
keeping the investigation pending against the other accused
persons. On the basis of the said charge-sheet, cognizance has
also been taken and the case was committed to the Court of
Sessions and the case was numbered as Sessions Trial No. 40 of
2002, whereafter the trial judge framed charges on 07.03.2002
under Sections 304B/34 and 201/34 of the IPC against the
appellants to which they pleaded not guilty and claimed to be
tried.
6. During the course of trial, the prosecution has
examined seven witnesses to substantiate its case, out of whom,
P.W. 1 Raj Kumar Sahni, P.W. 2 Yogi Sahni (both hostile), P.W.
3 Mahendra Choudhary and P.W. 4 Shatrughan Choudhary are
the co-villagers of the informant, examined on the point of
occurrence. P.W.5 Jaimangal Sah is the informant himself, as
also the father of the deceased, P.W. 6 Radhe Shyam Sah is the
cousin brother of the informant who has also been declared
hostile and P.W. 7 Md. Kaisar Alam is the Investigating officer
of the case.
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
7. I have heard the arguments of the learned counsel
for the appellants and the learned APP for the State.
8. Ms. Vaishnavi Singh, learned counsel for the
appellants has contended, at the outset, that there is a delay in
lodging of the first information report inasmuch as while the
occurrence is alleged to have been taken place on 11.06.2001
and the informant also got knowledge about death of the
deceased on the same date, yet the written report was filed
before the police only after a lapse of 3 days on 14.03.2001
whereupon the formal FIR was drawn. It has also been stated
that the said FIR was only received in court on the next date i.e.
on 15.06.2001 and the prosecution has not been able to tender
any explanation for the delay caused, much less a plausible one.
Such an unexplained and inordinate delay has been contended to
be fatal to the case of the prosecution. In support of her
contention, learned counsel has relied upon the case of Nand
Lal & Ors. Vs. State of Chhattisgarh reported in (2023) 10
SCC 470 by referring to paragraphs 23 and 24 thereof. She has
further submitted that out of the six private witnesses examined
on behalf of the prosecution, P.Ws. 1, 2 and 6, who are the co-
villagers of the informant, have not supported the case of the
prosecution, hence have been declared hostile. It has, however,
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
been pointed out that these witnesses have been cross-examined
at length and they have maintained their stand that the deceased
was the second wife of the appellant Shambhu Sah and she died
on account of illness. Besides pointing out that the age of the
eldest child is nine years, the attention of this court has also
been invited to the evidence of P.W. 2 who despite being a
hostile witness has stated in his cross examination that there
were cordial relations between the deceased and the appellant
Sumitra Devi and that the deceased was the second wife of the
appellant while maintaining that the appellant Sumitra Devi was
originally the wife of the appellant Shambhu Sah. Besides PW1
and PW2, the two hostile witnesses, P.W. 3 (Mahendra
Chaudhary) and P.W.4 (Shatrughan Chaudhary) are the other
two witnesses who have also been examined on the point of
occurrence and who also happen to be co-villagers of the
informant but have not supported the case of the prosecution
and have yet not been declared hostile. P.W. 3 in his
examination-in-chief has stated that the deceased died due to
illness and also that there was a love marriage between the
deceased and the appellant. In para-2 of his evidence, this
witness has also stated as a matter of fact, the children of the
deceased have been residing with appellant Sumitra Devi in
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
Patna. P.W. 4 has also supported the factum of the deceased
dying on account of illness in his examination-in-chief and in
paragraph-2 of his deposition, he has also admitted that the
appellant Shambhu was earlier married to appellant Sumitra and
subsequently had entered into a love marriage with the
deceased. He has also stated that the eldest son of the appellant
and the deceased was aged 10 years and considering that his
statement was made in the year 2002, the learned counsel has
raised serious objection to the fact that the death of the deceased
has taken place within 7 years of marriage.
9. Upon taking this Court through the evidence of
P.W. 3 and 4, learned counsel for the appellants has contended
that both the aforesaid witnesses are full-fledged prosecution
witnesses and yet, they have neither supported the prosecution
case nor have been declared hostile. As such, the evidence of
these witnesses becomes binding on the prosecution and to
buttress this submission, the learned counsel has placed reliance
on the case of Raja Ram Vs. State of Rajasthan reported in
(2005) 5 SCC 272 and paragraph-9 thereof is being quoted
hereunder:
"9. But the testimony of PW 8 Dr. Sukhdev
Singh, who is another neighbour, cannot
easily be surmounted by the prosecution.
He has testified in very clear terms that he
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
saw PW 5 making the deceased believe
that unless she puts the blame on the
appellant and his parents she would have to
face the consequences like prosecution
proceedings. It did not occur to the Public
Prosecutor in the trial court to seek
permission of the court to heard (sic
declare) PW 8 as a hostile witness for
reasons only known to him. Now, as it is,
the evidence of PW 8 is binding on the
prosecution. Absolutely no reason, much
less any good reason, has been stated by
the Division Bench of the High Court as to
how PW 8's testimony can be sidelined."
10. The above-mentioned case of Raja Ram (supra)
finds a mention in subsequent judgments of Mukhtiar Ahmed
Ansari Vs. State (NCT of Delhi), reported in (2005) 5 SCC
258 and the learned counsel has relied on paragraph-30 and 31
of the said judgment and has also made a reference to a case
reported in AIR 2022 SC 3373, Virendra Vs. State of Madhya
Pradesh, relying on paragraph-7 of the said judgment.
11. Learned counsel has further submitted that there
are several infirmities and inconsistencies in the evidence of the
prosecution witnesses including that of the informant who has
been examined as P.W. 5, hence it has been argued that the
testimony of all the prosecution witnesses are bereft of
credibility. It has next been submitted that there have been some
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
major lapses in the investigation as the Investigating Officer
P.W. 7 has failed even to record the statements of the children
whose evidence would have had important bearing on the
present case. The defence had also tried to adduce the evidence
of the son of the deceased by examining him as D.W.-1, but as a
matter of fact the trial court did not permit his examination
considering him a child witness and finding him incompetent to
depose in the court
12. The primary contention raised on behalf of the
appellants is that the prosecution has miserably failed to prove
its case of demand of dowry and that of torture being meted out
to the deceased soon before her death. Learned counsel thus
submits that in absence of essential ingredients of Section 304B
of the IPC, the said offence is not at all made out against the
appellants, hence the conviction of the appellants under the
aforesaid section cannot be sustained. It has also been pointed
that there is no sufficient evidence on record even to prove the
fact that the death of the deceased has taken place within a
period of seven years of marriage and that the same was an
unnatural death, inasmuch as the prosecution witnesses
themselves including P.W. 3 and 4 have clearly stated that the
deceased had died on account of illness and Investigating
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
Officer (P.W. 7) has also stated in his evidence that the
witnesses have stated before him that the deceased died on
account of an attack of diarrhoea. The counsel for the appellants
has relied upon a few case laws on the point that in absence of
the essential ingredients of demand of dowry and cruelty meted
out soon before death, no offence under Section 304B IPC
would be made out and no conviction in absence of these
ingredients which are sine qua non of Section 304B could be
legally maintained.
13. The case of Charan Singh Vs. The State of
Uttrakhand reported in AIR 2023 SC 2095 has been relied
upon by the learned Counsel for the appellants and paragraphs
11, 21 and 23 of the said judgment passed by the Hon'ble Apex
Court have been pointed out to contend that when the evidence
led by the prosecution does not fulfill the prerequisites to invoke
presumption u/s 304B IPC or section 113B of the Indian
Evidence Act, the conviction of the appellants cannot be
justified. The said judgment was followed in the case of Karan
Singh Vs. State of Haryana, reported in 2025 SCC Online SC
214 wherein the essential ingredients of Section 304B IPC have
been enumerated and it has been laid down that the presumption
u/s 113B of the Indian Evidence Act will apply only when it is
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
established that soon before her death, the woman has been
subjected by the accused to cruelty in connection with demand
for dowry. Paragraph-8 of the said judgment is being quoted
hereunder: -
"8. ...............
The presumption under Section 113 -B will
apply when it is established that soon
before her death, the woman has been
subjected by the accused to cruelty or
harassment for, or in connection with, any
demand for dowry. Therefore, even for
attracting Section 113-B, the prosecution
mush establish that the deceased was
subjected by the appellant to cruelty or
harassment for or in connection with any
demand of dowry soon before her death.
Unless these facts are proved, the
presumption under Section 113-B of the
Evidence Act cannot be invoked."
14. Further in this regard, the learned counsel has also
relied upon paragraphs 6 & 7 of the case of Chabi Karmakar
and Ors v/s The State of West Bengal reported in (2025) 1
SCC 398 and paragraphs 12, 18 and 23 of the case of Shoor
Singh and Ors v/s State of Uttarakhand reported in (2025) 2
SCC 815 to emphatically submit that even the informant P.W. 5
has not given any specific instances of dowry demand or torture,
much less being soon before death, hence the essential
ingredients in order to constitute an offence u/s Section 304B
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
IPC is lacking.
15. Per Contra, the learned APP for the State Ms. Anita
Kumari Singh has submitted in response, that the death of the
deceased has taken place in unnatural circumstances within 7
years of marriage and the appellants in conspiracy with each
other have caused the said death, which fact has been supported
by the prosecution witnesses, in as much as the informant PW 5
has supported the version of the First Information Report that
the deceased was subjected to torture on account of demand of
Rs 50,000/- for running the shop of the husband Shambhu Sah
and subsequently caused her death on account of non-fulfillment
of the said demand and even caused disappearance of evidence
by surreptitiously cremating the dead body of the deceased.
16. I have minutely perused both the oral and the
documentary evidence besides hearing the learned Counsel for
the parties. It would be necessary to cursorily discuss the
evidence before proceeding further.
17. The prosecution in order to substantiate its case, has
examined seven witnesses out of whom PW 1 Raj Kishore
Sahni, P.W.2 Yogi Sahni and P.W. 6 Radhey Shyam Sah are the
witnesses who are residents of the village of the informant, have
not supported the prosecution case and have been declared
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
hostile, hence their evidence do not warrant any discussion.
18. The evidence of P.W. 3 Mahendra Chaudhary and
P.W-4 Shatrughan Chaudhary who also happen to be the co-
villagers of the informant have been examined on the point of
occurrence. P.W.3, Mahendra Chaudhary has stated in his
examination-in-chief that the wife of appellant Shambhu Sah,
the deceased herein, was unwell and she was taken for treatment
to Muzaffarpur. He had further stated that he later got to know
that the deceased Chandrakala Devi had died and that the
appellant Shambhu Sah had another wife namely Sumitra Devi
who used to reside in Patna. In his cross-examination he has
stated that the children of the deceased were staying with
appellant Sumitra Devi at Patna where the later is looking after
their education.
19. P.W. 4 Shatrughan Chaudhary has also stated in his
examination-in-chief that the death of the wife of the appellant
Shambhu Sah took place on account of illness and the appellant
Shambhu Sah had taken her for treatment to Muzaffarpur,
however the deceased died and her cremation was done at
Muzaffarpur. In the cross-examination this witness has deposed
that the marriage of the appellant Shambhu Shah with his
deceased wife Chandrakala was a love marriage and there were
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
two children out of the wedlock, the elder son being about 10
years of age while the daughter being 5 years old. He has also
made a mention of his another wife Sumitra Devi (appellant) to
be the first wife of the appellant Shambhu Sah.
20. The informant, Jaimangal Sah who is the father of the
deceased, has been examined as P.W. 5. This witness has stated
in his examination-in-chief that the marriage of his daughter
Chandrakala was performed on 18.04.1995 with the appellant
Shambhu Sah and after her marriage the appellant Shambhu Sah
and all other accused persons, the other members of the family
used to assault her and also used to coerce her for bringing Rs.
50,000/- from her parents in order to enable her husband to run
a shop at Patna and such demand could not be fulfilled. Despite
the efforts taken by this witness to pacify the matter, they
remained adamant on their demand, even after the birth of two
children out of the wedlock, and Shambhu Sah and his brother
Shankar Sah had even threatened to kill his daughter in case of
non-fulfillment of the aforesaid demand. The informant further
states that he got information from his elder son-in-law about
his daughter being killed and thrown away on 11.06.2001,
whereupon he along with some other persons went to the
matrimonial household of the deceased but not having found
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
anyone present, enquired from the villagers who informed him
that the accused persons had taken his daughter to Muzaffarpur.
He thus filed a written report (Exhibit-1) and supported the facts
mentioned therein in his examination before the police. In his
cross-examination this witness while expressing his ignorance
about the whereabouts of the children of his deceased daughter,
has stated specifically in paragraph 12 of his evidence that he
neither remembers the date, month or year of the birth of the
children of his daughter nor does he remember the date, month
and year of the marriage of his other three daughters. He has
further stated that he had not made any complaint, oral or
written before any police station or court in Muzaffarpur or
Patna with regard to the demand of dowry, torture and
threatening to kill his daughter. The informant has expressed his
ignorance to the defence suggestion that while the son of the
deceased was born on 28th June, 1992, the daughter was born on
25th May 1997. The attention of this witness has been drawn to
the contents of the written report and his statement before police
wherein he has denied that he ever stated about threatening to
kill given by the appellant Shambhu Sah and his brother and
also some other vital facts. He has also denied the defence
suggestion that his daughter had died on account of illness.
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
21. The Investigating Officer, examined as P.W. 7, has
stated that he received the typed written report of the informant
Jaimangal Sah on 14.06.2001 whereupon he had drawn the FIR
(Ext. 2) and took up investigation. He inspected the place of
occurrence and recorded statements of witnesses and the
villagers had disclosed that the deceased had been taken to
Muzaffarpur for treatment as she was suffering with diahorrhea.
The witnesses of the parental household of the deceased
however stated that the accused persons, including the
appellants used to torture her on account of non-fulfillment of
demand of Rs.50,000/- and later killed her and did not inform
them about her death. In his cross-examination, this witness
stated in paras 14,15 and 16 of his deposition, that the informant
Jaimangal Sah did not state before him that his daughter had
asked for money from him nor had stated that Shambhu Sah and
his brother Shankar Sah had threatened to kill his daughter or
oust her from house. The informant had even not disclosed
about him learning facts relating to murder of deceased from his
elder son-in-law Shankar Sah.
22. After closing the prosecution evidence, the Trial Court
recorded the statements of appellants under Section 313 of the
Cr.P.C. on 06.07.2004, enabling them to personally explain the
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
circumstances appearing in the evidence against them, however,
they denied the said charges and circumstances.
23. The son of the deceased Chandan Kumar, aged about
11 years, was examined as DW-1, but since he could not answer
to the questions posed to him, he was held to be an incompetent
witness.
24. The learned Trial Judge, upon appreciation, analysis
and scrutiny of the evidence adduced during trial, has found the
appellants guilty of the offences and has sentenced them to
imprisonment, by its impugned judgment and order.
Analysis and consideration
25. I have perused the impugned judgment of the learned
Trial court, the entire materials on record and have given
thoughtful consideration to the rival submissions made by
learned counsel for the appellants as well as the learned APP for
the Sate.
26. The contents of the FIR has already been discussed in
detail earlier which disclose an allegation of the deceased being
subjected to cruelty on account of non-fulfillment of dowry
demand and was subsequently killed for the said reason by the
accused persons.
27. Out of 7 witnesses examined by the prosecution, PW-
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
1, PW-2 and PW-6 have been declared hostile and have not
supported the prosecution case, while PW-3 and PW-4, who
have not supported that case of the prosecution and have yet not
been declared hostile and PW-7 is the I.O. Therefore, the only
witness, upon whose evidence the prosecution case rests, is PW-
5, Jaimangal Sah, the informant of the case.
28. Before going on to analyse and examine the fact as to
whether the evidence of this solitary witness is sufficient to base
conviction of the appellants, it would be desirable to first
elucidate the essential ingredients of Section 304B I.P.C., which
are as under:
a. The death of a woman must have been caused by any
burns or bodily injury, or must have occurred otherwise than
under normal circumstances;
b. The death must have been caused within seven years of
her marriage;
c. Soon before her death, she must have been subjected to
cruelty or harassment by the husband or any relative of her
husband; and
d. Cruelty or harassment must be for, or in connection
with, any demand for dowry."
29. The moot question which now falls for consideration
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
is whether the prosecution has succeeded in establishing the said
ingredients/circumstances beyond reasonable doubts so as to
sustain conviction under the aforementioned provision.
30. On going through the discussions made hereinabove
in the preceding paragraphs with regard to the evidence of the
witnesses, P.W.5, the informant, is apparently the only witness
to be considered alongwith the Investigating Officer, P.W. 7.
31. While analyzing the evidence of the informant PW-5,
it is noticed that he has tried to support the story of the
prosecution, however he has failed to refer to any specific
instances of demand of dowry or torture meted out to the
deceased. A vague allegation of demand of Rs. 50,000/- for
running a shop was made by the appellants alongwith other
family members. So far as inflicting torture is concerned, the
FIR indicates that though the accused persons remained
adamant on their demand of Rs. 50,000/-, even after attempts of
pacification, there is no allegation of subjecting the accused to
cruelty thereafter. The evidence of this witness needs to be
viewed in close scrutiny as his initial statement is a delayed one,
inasmuch, despite having knowledge about his daughter being
killed and thrown away on 11-06-2001 itself, he filed his written
report after a lapse of 3 days for which he has not been able to
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
tender any plausible explanation, hence, an adverse inference
can be drawn that the FIR has been lodged after due thought and
deliberation, leaving it open for introduction and concoction of
facts and other embellishments. It is also noticed from his
evidence that he did not make any complaint earlier with regard
to any demand of dowry, torture or any threatening given to kill
his daughter and upon a conjoint reading of the deposition of the
Informant alongwith the I.O. (PW-5) it is gathered that some
very vital facts have been introduced by the informant for the
first time during trial and were never stated before the I.O.,
including the fact about threatening to kill. Thus, the evidence
of the informant suffers from several infirmities and appears to
be an afterthought, hence the same does not appear to be cogent
and worthy of reliance. The initial statement of the informant
PW-5 forming the basis of the FIR, takes us to the very first
contention raised on behalf of the appellants with regard to the
inordinate delay in lodging the FIR. There is no reason indicated
as to why despite having knowledge about death of the deceased
on 11-06-2001, the written report came to be filed three days
thereafter, i.e. on 14-06-2001. It is true that delay in lodging FIR
cannot be the only ground for shutting out the case of the
prosecution but it indeed, is a valid ground available to the
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
defence to assail the veracity and authenticity of such delayed
First Information Report. The law in this regard is clear that on
account of non-recording of a prompt information, the FIR gets
denuded of its assurance of truth and if not satisfactorily
explained, leads at times to collapse of prosecution.
32.At this juncture, it would be apt to refer to the case
of Thulia Kali Vs. The State of Tamil Nadu reported in
(1972) 3 SCC 393 wherein the Hon'ble Apex Court, discussed
the importance of a prompt FIR and an extract of paragraph-12
of the said judgment is being reproduced hereunder:
12. ............First information report in a
criminal case is an extremely vital and
valuable piece of evidence for the purpose
of corroborating the oral evidence adduced
at the trial. The importance of the above
report can hardly be overestimated from
the standpoint of the accused. The object of
insisting upon prompt lodging of the report
to the police in respect of commission of
an offence is to obtain early information
regarding the circumstances in which the
crime was committed, the names of the
actual culprits and the part played by them
as well as the names of eye-witnesses
present at the scene of occurrence. Delay in
lodging the first information report quite
often results in embellishment which is a
creature of after-thought. On account of
delay, the report not only gets bereft of the
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
advantage of spontaneity, danger creeps in
of the introduction of coloured version,
exaggerated account or concocted story as
a result of deliberation and consultation. It
is, therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained......"
33.The aforesaid issue has also been taken up in the
case of Meharaj Singh Vs. State of U.P. reported in (1994) 5
SCC 188 wherein the Hon'ble Supreme Court in paragraphs 12
and 13 has deliberated upon delay in lodging the FIR as also the
FIR being ante-timed and has found the same to be an vital
factor in doubting the case of the prosecution.
34.The case of Nand Lal & Ors. Vs. State of
Chhattisgarh (Supra) may also be referred in this context,
paragraphs 30 and 31 whereof are being quoted hereunder: -
"30. We may gainfully refer to the following
observations of this Court in Ramesh Baburao
Devaskar v. State of Maharashtra : (SCC p. 509, para
19)
"19. In a case of this nature, enmity between two
groups is accepted. In a situation of this nature, whether
the first information report was ante-timed or not also
requires serious consideration. First information report,
in a case of this nature, provides for a valuable piece of
evidence although it may not be a substantial evidence.
The reason for insisting on lodging of first information
report without undue delay is to obtain the earlier
information in regard to the circumstances in which the
crime had been committed, the name of the accused,
the parts played by them, the weapons which had been
used as also the names of eyewitnesses. Where the
parties are at loggerheads and there had been instances
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
which resulted in death of one or the other, lodging of a
first information report is always considered to be
vital."
31. As held by this Court in Ramesh Baburao, the FIR
is a valuable piece of evidence, although it may not be
substantial evidence. The immediate lodging of an FIR
removes suspicion with regard to over implication of
number of persons, particularly when the case involved
a fight between two groups. When the parties are at
loggerheads, the immediate lodging of the FIR
provides credence to the prosecution case."
35.In the facts of the present case, delay becomes an
extremely vital circumstance, in the absence of any
corroborative evidence which could lend any support to the case
of the prosecution.
36.It is not expected that there would be eye-
witnesses to the incident of killing, but there is absolutely no
evidence even with regard to any suspicion of foul play by the
appellants in order to lend any support to the version of the
informant, as disclosed in the FIR and his deposition during
trial. During analysis of evidence, it has already been noticed
earlier that not only the informant's co-villagers, PW-1, PW-2
and PW-6 have been declared hostile, but PW-3 and PW-4, who
are full-fledged prosecution witnesses and yet not declared
hostile, have also not supported the prosecution case and have
rather made clear averments with regard to the fact that the
deceased had died on account of illness. The case of Raja Ram
Vs. State of Rajasthan (Supra) lays down in clear terms that
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
the evidence of a prosecution witness, who has not been held to
be hostile, becomes binding on the prosecution and there is no
apparent reason found to sideline the testimony of these two
witnesses PW-3 and PW-4. Thus, the delay in the FIR, coupled
with lack of corroboration from any other evidence, gives a fatal
blow to the case of the prosecution.
37.Now, it would be imperative to advert to
examining the position as to whether the essential ingredients of
Section 304 B of the IPC as elucidated in the preceding
paragraphs have been made out against the appellants or not in
order to prove and establish the case beyond all reasonable
doubt. Let us now examine the above-mentioned components
individually to arrive at a conclusion as to whether they stand
established, in order to sustain a conviction u/s 304-B IPC.
Whether the death has occurred otherwise than under
normal circumstances:
38.The first question relates to the fact as to whether the
death has occurred otherwise than under normal circumstances,
i.e. whether it is an unnatural death or not. The evidence
available on record is indicative of the fact that the deceased
was suffering from diahorrhea for which she was taken to
Muzaffarpur for treatment and she died on account of her
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
illness. Although, there is no medical prescription in support of
her illness or treatment, but almost all the prosecution witnesses
including those who have been declared hostile i.e., P.Ws. 1, 2
and 6 and the other witnesses, being P.W. 3 and P.W. 4, have all
consistently deposed that the deceased had died on account of
her illness. I may hasten to point out here, at the cost of
repetition, that P.W. 3 and P.W. 4 who are the co-villagers of the
informant have not been declared hostile by the prosecution and
their evidence is thus binding upon the prosecution. The
investigating officer P.W. 7 has also deposed that the villagers
had disclosed before him during course of investigation that the
deceased had been taken to Muzaffarpur for treatment as she
was suffering from diahorrhea. Besides, it would also appear
from the first information report itself that the informant
(P.W.5), upon inquiry from the villagers, was also informed that
his daughter had been taken to Muzaffarpur by the accused
persons, which lends credence to the defence version.
39.The above-mentioned analysis of evidence leads us
to the inference and irresistible conclusion that the factum of
death of the deceased occurring otherwise than under normal
circumstances, is not established, thus the same cannot be
categorized as 'unnatural death'.
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
Whether death has been caused within 7 years of marriage:
40.So far as the issue of death being caused within
seven years of marriage is concerned, there are inconsistencies
in the evidence of the witnesses in this respect too, in as much
as while the informant has stated the date of marriage to be
18.04.1995, the evidence of P.W. 1 in paragraph-4 and P.W. 4 in
paragraph-2 discloses the fact that out of the two children born
out of the wedlock of the deceased and the appellant, the age of
the eldest child was 9/10 years. Considering the fact that the
deposition of the witnesses was being recorded in the year 2002,
a serious doubt is created with respect to the fact that the death
of the deceased which took place in the year 2001 was possibly
within seven years of marriage. The informant has also not been
able to furnish any cogent evidence to prove the date of
marriage of the deceased. The second ingredient, thus, is also
not proved beyond all reasonable doubts.
Whether the deceased had been subjected to cruelty or
harassment by the husband or any relative of her husband,
soon before her death:
41.This is the next necessary concomitant to constitute
an offence under Section 304B IPC. There is virtually no
evidence on the above-mentioned proposition but for totally
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
bald and vague allegations made by the informant in the FIR
and in the deposition, which do not stand supported by any other
oral or documentary evidence adduced by the prosecution. The
evidence of the witnesses are rather to the effect that there was a
love marriage between the deceased and the appellant Shambhu
Sah and the relationship between the appellants and the
deceased inter se was rather cordial and the witnesses have also
deposed that the two children of the deceased are even residing
with appellant Sunita Devi @ Sumitra Devi at Patna.
42.Thus, apparently, the above-mentioned theory put-
forth by the prosecution that cruelty was meted out to the
deceased 'soon before her death', by way of the solitary
evidence of the informant P.W. 5, which is not of sterling
quality, does not seem to be a credible theory at all in the
background of complete dearth of cogent and impeachable
evidence in this regard.
43.It would be relevant to make a reference to the
case of Baijnath Singh Vs. The State of MP, reported in AIR
2016 SC 5313 wherein the ingredient of Section 304B of the
IPC were deliberated upon with special reference to the
meaning of cruelty or harassment along with the consideration
of the presumption of guilt under Section 304B of the IPC as
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
engrafted in Section 113B of the Indian Evidence Act.
Paragraphs 27 to 30 of the case of Baijnath Singh (supra) are
being quoted hereunder:
27. The expression "dowry" is ordained to have the
same meaning as in Section 2 of the Dowry Prohibition
Act, 1961. The expression "cruelty", as explained,
contains in its expanse, apart from the conduct of the
tormentor, the consequences precipitated thereby qua
the lady subjected thereto. Be that as it may, cruelty or
harassment by the husband or any relative of his for or
in connection with any demand of dowry, to reiterate, is
the gravamen of the two offences.
28. Section 113-B of the Act enjoins a statutory
presumption as to dowry death in the following terms:
"113-B. Presumption as to dowry death.--When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation.-- For the purposes of this section, "dowry
death" shall have the same meaning as in Section 304-B of
the Penal Code, 1860."
29. Noticeably this presumption as well is founded on
the proof of cruelty or harassment of the woman dead
for or in connection with any demand for dowry by the
person charged with the offence. The presumption as to
dowry death thus would get activated only upon the
proof of the fact that the deceased lady had been
subjected to cruelty or harassment for or in connection
with any demand for dowry by the accused and that too
in the reasonable contiguity of death. Such a proof is
thus the legislatively mandated prerequisite to invoke
the otherwise statutorily ordained presumption of
commission of the offence of dowry death by the person
charged therewith.
30. A conjoint reading of these three provisions, thus
predicate the burden of the prosecution to unassailably
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
substantiate the ingredients of the two offences by direct
and convincing evidence so as to avail the presumption
engrafted in Section 113-B of the Act against the
accused. Proof of cruelty or harassment by the husband
or his relative or the person charged is thus the sine qua
non to inspirit the statutory presumption, to draw the
person charged within the coils thereof. If the
prosecution fails to demonstrate by cogent, coherent and
persuasive evidence to prove such fact, the person
accused of either of the abovereferred offences cannot
be held guilty by taking refuge only of the presumption
to cover up the shortfall in proof.
44.The above noted judgment has also been
considered and relied upon by the Hon'ble Supreme Court in the
recent cases of Charan Singh (supra). The fact that the
presumption under Section 113B of the Indian Evidence Act
would be attracted, only when the prosecution has established
that the deceased was subjected to cruelty or harassment in
connection with any demand of dowry soon before her death,
also finds mention and discussion in the case of Karan Singh
(supra).
Whether the cruelty or harassment inflicted is for, or in
connection with any demand for dowry:
45.This final ingredient to constitute an offence under
Section 304B of the IPC has also not been proved or
established by the prosecution as the witnesses have either not
supported the prosecution case at all or they have stated that
there was a love marriage between the deceased and the
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
appellant and have not made any reference to any dowry
demand, other than such allegation being made by the
informant, P.W. 5, who also mentions about Rs. 50,000/- being
demanded for running a shop, which , not be covered within the
definition of 'Dowry'as the same does not appear to be in
connection with marriage.Moreover, his solitary evidence in this
regard is also not supported by other witnesses, rather specific
contradiction has been drawn by way of confronting the
investigating officer, P.W.7, to the statement of the informant
recorded under Section 161 Cr.P.C., who has negated the fact
that the informant had ever made any statement with regard to
the said demand made by the appellants before him during
course of investigation. Thus, cruelty or harassment on account
of dowry demand also does not seem to be established by the
evidence on record.
46.From an overall conspectus of the evidence, it
transpires that the defence has been able to create a grave doubt
on the entire case of the prosecution, impeaching the credibility
and sanctity thereof on the vital aspect of the essential
ingredients of Section 304B IPC not being proved, thereby
shaking the very foundation of the prosecution case and as
already discussed above, the presumption under Section 113B of
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
the Indian Evidence Act can be invoked only when the essential
ingredients get satisfied.
47.As a result of the above analysis, I am of the firm
view that the prosecution has miserably failed to prove its case
beyond reasonable doubts and there are patent and glaring
infirmities and several loopholes in the case of the prosecution
on account of which the entire edifice of the prosecution
crumbles. Therefore, on the basis of such scanty and deficient
evidence, the vital circumstances, extremely crucial for
constituting an offence under Section 304B of the IPC not
having been established, the present case indisputably has not
been proved beyond all manner of doubt, hence, it would be
unsafe to uphold the conviction of the appellants recorded by
the learned trial court.
48.Thus, taking an overall perspective of the entire
case, emerging out of the totality of the facts and circumstances,
as indicated hereinabove and for the foregoing reasons, we find
that the prosecution has miserably failed to prove the charges
against the appellants beyond all reasonable doubts, leaving the
court with no choice but to acquit the appellants of the charges.
49.Accordingly, the finding of conviction recorded by
the learned trial court, in my opinion is not sustainable and
Patna High Court CR. APP (SJ) No.724 of 2004 dt.10-10-2025
requires interference, therefore, the judgment of conviction and
order of sentence dated 12.10.2004, passed by of the appellants
and the sentence awarded thereunder by the court of the learned
1st Additional Sessions Judge, Darbhanga in Sessions Trial No.
40 of 2002 (arising out of Simri P.S. Case No. 36 of 2001) are
hereby set aside.
50.The appellants of both the aforesaid appeals are
stated to be on bail, hence they are discharged from the liability
of their bail bonds.
51.The aforesaid appeals thus stand allowed.
(Soni Shrivastava, J)
devendra/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.10.2025
Transmission Date 19.10.2025
