Jharkhand High Court
Kedar Yadav vs The State Of Jharkhand on 21 October, 2021
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
`
Criminal Appeal (DB) No. 582 of 2013
With
Criminal Appeal (DB) No. 568 of 2013
With
Criminal Appeal (DB) No. 571 of 2013
(Against the judgment of conviction dated 24 th July, 2012 and the order
of sentence dated 26th July, 2012 passed by the learned Addl. Sessions
Judge-I, Bermo at Tenughat in S.T. No. 24 of 1996 )
--------
In Criminal Appeal (DB) No. 582 of 2013:
Kedar Yadav, s/o Hari Gope, r/o village-Ambatand (Giribadih), PO-Swang,
PS-Gomia, District-Bokaro ...... Appellant
In Criminal Appeal (DB) No. 568 of 2013:
1.Gujar Gope @ Gujar Yadav, s/o Hari Gope,
2. Suresh Yadav, s/o Hari Gope
Both r/o village-Ambatand, PO-Swang, PS-Gomia, District-Bokaro
...... Appellants
In Criminal Appeal (DB) No. 571 of 2013:
1. Hari Gope, s/o late Fudniya Gope,
2. Panwa Devi, w/o Hari Gope
Both r/o village-Ambatand (Giribadih), PO-Swang, PS-Gomia, District-
Bokaro ...... Appellants
Versus
The State of Jharkhand ... Respondent
(in all cases)
---------------
(Heard on 20th & 21st October, 2021)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mrs. J. Mazumdar, Advocate
(in all cases)
For the State : Mrs. Nehala Sharmin, APP
(in all cases)
--------------
Oral Judgment
21st October, 2021
Per, Shree Chandrashekhar,J.
Gouri Devi was found dead in her matrimonial home at village Ambatand. Baijnath Gope who is the father of Gouri Devi 2 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters received an information in the intervening night of 08 th/09th February, 1995, around 03:00 AM, through his cousin Karu Gope that his daughter was killed. Baijnath Gope gave his statement before the officer- in-charge of Gomia PS at around 08:00 AM on 09 th February, 1995 at village Jaruadih, Tola Ambatand that his daughter was killed by her husband and other family members and, accordingly, Gomia P.S. Case No. 11 of 1995 was lodged against Kedar Yadav, Hari Gope, Panwa Devi, Suresh Yadav and Gujar Gope @ Gujar Yadav for committing dowry death of Gouri Devi in furtherance of their common intention.
2. The dead body of Gouri Devi was examined by Dr. R.P. Singh at Sub-divisional hospital, Tenughat who recorded his opinion in the postmortem report that cause of death of Gouri Devi was asphyxia caused through a single thin ligature mark without knot. Manik Yadav and Gauri Gope who are co-villagers of the accused gave statement before the investigating officer that in the night of 09 th February, 1995 they heard sound of maarpit coming from the house of Hari Gope, who is the father- in-law of Gouri Devi. The other witnesses who are closely related to Gouri Devi informed the investigating officer that Gouri Devi was put to harassment in her matrimonial home in connection to demand of a motorcycle. Tilwa Devi who is the mother and Baijnath Gope who is the father of Gouri Devi gave statement to the investigating officer that they had visited the matrimonial house of Gouri Devi at Jaruadih, Tola Ambatand and tried to persuade Kedar Yadav and his other family members expressing inability to fulfill the demand of motorcycle, which they had started demanding after Kedar Yadav passed the matriculation examination.
3. Initially a common charge under section 304-B/34 of the Indian Penal Code was framed against all the appellants vide order dated 26th April, 2002. The prosecution examined ten witnesses in the trial to prove the charge under section 304-B/34 of the Indian Penal Code - the last witness for the prosecution was examined on 20 th February, 2007. Thereafter an additional charge under section 302 of the Indian Penal 3 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters Code was framed against the appellants on 15th July, 2008.
4. The learned Additional Sessions Judge-I, Bermo at Tenughat held the appellants guilty under section 302 of the Indian Penal Code and under section 304-B/34 of the Indian Penal Code. The learned trial Judge has recorded a finding that PW1 Tilwa Devi, PW2 Sharan Gope, PW3 Mahabir Yadav, PW4 Karu Gope, PW5 Chotan Gope and PW8 Baijnath Gope fully supported the prosecution case that Gouri Devi was murdered in the night of 08th February, 1995, around 11:00 PM, for non-fulfillment of demand of dowry.
5. The learned trial Judge has analyzed the prosecution evidence in paragraph-20 of the judgment under challenge in the following manner:
"20. Heard and perused the entire record and the evidence available on the record. I also heard the Ld. lawyer for both parties at length. As per prosecution, in the night of 8/9 th February, 1995 at village Ambatand (Jaruwatand), P.S. Gomia, District Bokaro the accused persons named above committed murder of the informant's daughter Gouri Devi because of demand of motorcycle after marriage was not fulfilled by the informant. In support of the case the prosecution has examined altogether 10 witnesses. P.W.8 is the informant of this case. He has deposed that his daughter Gouri Devi was married to Kedar Gope 10 years ago. She started to live in her sasural after marriage. When his daughter came to 'Naihar' second time she stated that her in- laws had made a demand of a motorcycle with her to bring the same from her parental house. They have threatened that if their demand is not fulfilled they will not keep her. On getting such information, informant went to the matrimonial house of her daughter and stated them about their poor condition and inability to fulfil their demand. On the occasion of 'Makar Sankranti' when his daughter was in 'Naihar' his son-in-law Kedar Yadav came at his house and informant made 'Bidai' of his daughter with him and narrated him also about their inability to fulfil the demand of motorcycle but the accused persons in the night of 8/9 th February, 1995 at 11.00 P.M. killed his daughter. He got information in the night of 8/9th February, 1995 at 3.00 A.M. Through Hari Gope who is his 'Samdhi'. Hari Gope came at the house of Karu Gope at first and told him about the death of Gouri Devi and thereafter Karu Gope went to the house of informant alongwith Hari Gope in the night about 3.00 A.M. and narrated the facts, thereafter they went to the police station. After that they went to the matrimonial house of her daughter where he found the dead body of his daughter. He found a 4 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters spot of chain in her neck. Bleeding had taken place from her nose and her sari contained blood stain which came out from her private part and soil was on her both legs. He also proved fardbeyan of this case. P.W.1 Tilwa Devi is the mother of the deceased Gouri Devi. She has also proved this fact that accused Kedar Gope, Suresh Gope, Gujar Gope, Hari Gope and Panwa Devi @ Punwa Devi in furtherance of common object of all had killed to her daughter Gouri Devi as their demand of motorcycle valued at Rs.25,000/- was not fulfilled due to poverty of the informant. P.W.2 Sharan Gope has also proved this fact that the accused had made demand of a motorcycle from the informant and when the informant had not fulfilled their demand they have killed to Gouri Devi. P.W.3 Mahabir Yadav has also proved that his sister was married to Kedar Yadav. His brothers-in-law Kedar Yadav has passed Matric examination and demanded a motorcycle from her sister to bring the same from her parental home and when their demand was not fulfilled due to poverty the accused persons killed to Gouri Devi. P.W.4 Karu Gope has also deposed that Gouri Devi was married to Kedar Yadav and Hari Gope is father of Kedar Yadav and in the year 1995 at about 3.00 A.M. Hari Gope came at his house and told him that his daughter-in-law has been died but has not narrated how she died. Thereafter they informed to the informant Baijnath Gope and thereafter they informed to the Police station and thereafter they came at the house of Kedar Yadav where they found the dead body of Gouri Devi bleeding has taken place from her nose, her sari has contained blood stain. There was also soil on her legs. Her arms and neck had mark of injuries. P.W.5 Chhotan Gope has also supported the prosecution case and stated that Gouri Devi was married to Kedar Yadav and she was killed when the demand of motorcycle was not fulfilled by the informant. P.W.6 and 7 are hostiled witnesses. They have not supported the case of prosecution. P.W.9 is the doctor who has deposed that in his view the injuries mentioned in the postmortem report found by the doctor concern appears to him to be correct. P.W.10 has proved the postmortem report. Prosecution has proved the fardbeyan and signature of the informant on it and postmortem report. The witnesses P.W.1, 2, 3, 4, 5 and 8 had supported the case of prosecution that Gouri Devi was murdered in the night of 8/9th February, 1995 at 11.00 P.M. for non-fulfillment of demand of dowry. Accused persons had demanded a motorcycle and threatened to kill her if their demand is not fulfilled and when their demand was not fulfilled they had killed her in furtherance of their common intention. It is admitted fact that Gouri Devi was wife of Kedar Yadav. It is also admitted that she died on 8/9 th February at 11.00 P.M. It is also admitted fact that at the time of occurrence she was in the house of her in-laws. All witnesses have proved that accused Kedar Yadav and other accused namely Hari Gope, Suresh Yadav, Gujar Yadav and Panwa Devi in furtherance of common object of all had made 5 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters demand of a motorcycle with threatening that if the demand will not be fulfilled they will kill the daughter of informant and lastly she was murdered by the accused persons. To this fact witnesses P.W.1 to 5 and 8 have supported to the prosecution case. Even not this P.W.9 who has given his opinion that the injuries found by the doctor concern in postmortem report appears to him to be correct. He has deposed that the cause of death is asphyxia due to strangulation and P.W.10 has proved the postmortem report. All these evidence has proved the charges framed against the accused persons beyond doubt. I find no force in the contention of learned defence lawyer that all witnesses are interested witnesses hence no reliance can be placed on their evidence. I also found no force in the contention of Ld. defence lawyer that there is contradiction in the evidence of witnesses. As per F.I.R. When the informant reached at the house of accused persons he found the dead body of his daughter on a cot, while P.W.1 has deposed that she had seen the dead body of her daughter near drain. P.W.2 Sharan Gope has deposed that he saw the dead body of Gouri Devi on a cot. P.W.3 Mahabir Yadav has deposed that he saw the dead body of his sister lying near drain. P.W.4 Karu Gope has deposed that he saw the dead body of Gouri Devi on cot. P.W.5 Chhotan Gope has deposed that he saw the dead body of Gouri Devy was lying on the earth and P.W.8 the informant has deposed that the dead body of Gouri Devi was lying in the courtyard. The learned defence lawyer has submitted that these contradictions are major contradictions but I am not agree with the contentions of learned defence lawyer. In my view these contradictions are minor minor contradictions. All these witnesses i.e. P.W.1 to 5, 8, 9 and 10 have supported to the prosecution case. Ld. defence lawyer has cited the judgments of Hon'ble Courts which are as follows: - (2010) 1 SCC (Cri) 336, (2010) 0 AIR (SC) 1158, (2011) 4 Supreme 354, AIR 1974 SC 45, 2006 Cri. L.J. 2526, AIR 2007 SC 763, (2011) 0 AIR (SC) 3616, (2209) 4 Scale 280, (2010) 1 SCC 108, (2010) 9 SCC 73, (2010) 13 SCC 381, (2011) 11 SCC 542, (2011) 11 SC 24. I have gone through the same. I am of the view that the judgments cited by the Ld. defence lawyer will not apply in this case as the fact of this case is not same to the facts of the case cited in the said judgments."
6. In S.T. No. 24 of 1996, Kedar Yadav, Hari Gope, Panwa Devi, Suresh Yadav and Gujar Yadav are convicted and sentenced to RI for life under section 302 of the Indian Penal Code and RI for ten years with a fine of Rs.20,000/- each under section 304-B/34 of the Indian Penal Code.
7. By introducing the Amendment Act of 1986, the offence under section 304-B of the Indian Penal Code has been inserted in the Indian Penal 6 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters Code with a corresponding amendment in the Indian Evidence Act, 1872 to insert section 113-B to raise a presumption of dowry death. The language employed in section 304-B of the Indian Penal Code and section 113-B of the Evidence Act would reveal a common point of reference in both the provisions; the woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with the demand of dowry.
8. The essential ingredients for constituting an offence under section 304-B of the Indian Penal Code are: (i) death of a woman caused by burn or bodily injury or otherwise than under normal circumstances;
(ii) death occurred within seven years of marriage; (iii) soon before her death the woman was subjected to cruelty or harassment by her husband or by relative of her husband, and; (iv) such cruelty or harassment was for or in connection with demand of dowry.
9. The prosecution has sought to prove the charges against the appellants by laying circumstantial evidence. In a case based on circumstantial evidence the prosecution is required to prove incriminating circumstances by leading cogent and consistent evidence and an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with the innocence of the accused.
10. In "Gambhir v. State of Maharashtra" (1982) 2 SCC 351 the Hon'ble Supreme Court has observed as under:
"9. ............ When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into three parts:
7 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters (1) oral evidence to prove that in the absence of Namdeo, the accused used to visit the house of Laxmi regularly and he was seen in the evening of February 26, 1975 in the company of Laxmi and her children. He was also seen at about 10.00 p.m. the same night in the company of Laxmi under a neem tree in the village. At midnight he was again seen going along the way near the house of Babulal, (2) the various recoveries most of them at the instance of the accused, and (3) medical evidence."
11. All the material witnesses are closely related to Gouri Devi. There is no rule of law or practice that the testimony of a related witness who may sometimes be interested in prosecution of the accused cannot be believed on the ground of relationship, but it is not uncommon that a related witness on account of suspicion may give tainted evidence. In "Masalti v. State of U.P." AIR 1965 SC 202 the Hon'ble Supreme Court has observed that to appreciate the evidence of a partisan and interested witness the Court has to be very careful in weighing such evidence.
12. PW1 Tilwa Devi, PW2 Sharan Gope, PW3 Mahabpir Yadav, PW4 Karu Gope, PW5 Chotan Gope and PW8 Baijnath Gope are closely related to the deceased. PW1 and PW8 have alleged demand of motorcycle by all the appellants. PW1 has stated in her cross-examination that in Magh, 1993 her daughter came home and informed her about demand of motorcycle. She accompanied by her husband then went to village Jaruadih, Tola Ambatand and reasoned with the family members of her daughter and only when she was fully assured about her daughter she came back leaving her daughter in her matrimonial home. She has admitted that after talks of conciliation she did not give motorcycle to the accused. She has further admitted that her daughter was frequently visiting her place and about two months before her daughter was killed she was invited to her place where she was treated with honor. PW8 has stated in the Court that whenever he visited the matrimonial house of his daughter he was treated well and his relation was quite cordial and the demand for a motorcycle was made after his son-in-law passed matriculation examination. He has also made such statements in the Court 8 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters which make it clear that he was respected by his son-in-law and he used to give gifts to his son-in-law. He has stated that whenever his son-in-law visited Bero he gave presents to him ( esjs ;gk¡ esjk nkekn csjks vkrk Fkk rks xksM+ yxkbZ HksaV eSa nsrk FkkA). He has further stated that his son-in-law demanded motorcycle from him on account of their relationship (eksVjlkbfdy dh ekax esjk nkekn eq>ls nkekn llqj ds fj'rs ds vk/kkj ij fd;kA). He has further stated that if he had enough money he would have given motorcycle to him out of affection (esjs ikl iSlk gksrk rks eSa nkekn dks nsrkA og isze dk al©nk FkkA). He has admitted in the cross-examination that he did not tell the police about demand of motorcycle when he had gone to the police station.
13. PW2 is brother-in-law of Gouri Devi who lived in village Jhirki Basti in a different district. He has deposed in the Court that Gouri Devi was taken to her matrimonial home after 'Makar Sankranti' and thereafter she was frequently visiting her parents' place. He has further stated that about 1½ years thereafter his younger brother-in-law came and informed him that his sister was killed. In his cross- examination he has stated that Gouri Devi was living happily with her husband and he never noticed any stressful relationship between them. PW3 has also stated about demand of motorcycle. He is specific in his examination-in-chief that his brother-in-law was asking for a motorcycle. His evidence is that about 3 years after the marriage of his sister a demand for motorcycle was made. He has stated in his cross-examination that when police arrived in the matrimonial house of his sister 15 persons were there and the police made inquiry from them. He has admitted that on happy and auspicious occasions there is a tradition in his caste (Biradari) to present gifts to son-in-law. He has further admitted that no incident of maarpit with his sister ever happened in his presence. PW4 has stated that Hari Gope came to Bandh Basti and informed his uncle Kishan Gope that Gouri Devi has passed away but on inquiry he did not reveal how she had died. He has said that Hari Gope had gone to the police station and came back to his village along with Baijnath Gope and others. He has stated that Baijnath Gope and others stayed at the police 9 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters station for about half an hour and Hari Gope was not arrested there by the police. In the cross-examination he has stated that on inquiry from Hari Gope he said in pain ("Baap Re Baap") that his daughter-in-law had died. PW5 who is a resident of Bandh Basti stated that Hari Gope gave information about death of his daughter-in-law but did not disclose how she had died. He has further stated that the co-villagers of Hari Gope also did not give any information how Gouri Devi had died. In the cross-examination he has stated that Gouri Devi and her husband were happy in their marriage.
14. Except the fardbeyan of Baijnath Gope the prosecution did not lay any other documentary evidence. When and how inquest was conducted and why Dr. R.P. Singh was not produced during the trial do not appear in the records. An inquest report has limited utility in a criminal trial but in a case like the present one the inquest report could have revealed the first impression about the nature of injuries suffered by Gouri Devi. We further find that the informant who stated in his fardbeyan that Kedar Gope went to his house on 4th February, 1995 and asked him to send Gouri Devi to her matrimonial home has stated a different story in the Court. He has said that on the occasion of 'Makar Sankranti' Kedar Gope came to his house to take Gouri Devi home and 4-6 days thereafter he had gone to the matrimonial house of his daughter for a talk regarding demand of motorcycle. A First Information Report may not contain every minute details of the occurrence and it cannot be used as a substantive evidence. Nonetheless, being the earliest and first version of the prosecution case the facts stated in the First Information Report assumes significance in the trial to corroborate the prosecution story to an extent, or to contradict the informant in the Court.
15. We find considerable doubt over the prosecution story of demand of dowry by the appellants. From the aforesaid evidence of these witnesses, it is not established that a demand of dowry in the form of motorcycle was made by the appellants. There was no demand of any kind in the first two years of the marriage of Gouri Devi. The relationship 10 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters between the parties was very cordial and till the end Gouri Devi was enjoying a happy married life. A demand for motorcycle was made after Kedar Gope became a matriculate. From the testimony of PW8, we gather that such demand was not unusual and cannot be termed as demand of dowry. This is also important to note that none of the witnesses has deposed in the Court that Gouri Devi was meted out any kind of harassment in his presence.
16. There must be a live nexus between unnatural death of a woman and demand of dowry and/or torture and harassment in connection to demand of dowry at the hands of her husband or his family members or his relatives. The explanation to section 113-B of the Indian Evidence Act provides that the expression "dowry death" shall have the same meaning as in section 304-B of the Indian Penal Code. The expression "soon before the death" is not defined in the statutes and as held in "Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar"
(2005) 2 SCC 388 the expression "soon before" is a relative term and it would depend upon the circumstances of each case. In "Kunhiabdulla v.
State of Kerala" (2004) 4 SCC 13 the Hon'ble Supreme Court has observed that expression "soon before" would normally imply that interval should not be much between the concerned cruelty or harassment and the death.
17. The prosecution evidence is not specific when a demand for motorcycle was made and PW1 has admitted in the cross-examination that after talks with the accused she was assured about her daughter and then she put her in the company of the accused. We further find that no witness has said that the demand for motorcycle continued till the end. In our opinion, the prosecution has failed to establish that soon before her death Gouri Devi was subjected to harassment or torture in connection to demand of dowry.
18. Dr. R.P. Singh who conducted the autopsy over the dead body of Gouri Devi was not examined during the trial and Dr.Vijay Kumar Singh was produced by the prosecution as PW9 to prove the 11 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters postmortem report. PW 9 has stated in the Court that neither he worked with Dr. R.P. Singh nor did he recognize his signature over the postmortem report. He has stated in his examination-in-chief that he was never posted at Sub-divisional hospital, Tenughat nor was he acquainted with Dr. R.P. Singh who was posted at Sub-divisional hospital, Tenughat.
19. Under section 293 of the Code of Criminal Procedure examination of the doctor who conducted the postmortem is not necessary though the Court has a discretion to call the expert as a witness and section 294 of the Code of Criminal Procedure provides that where genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding without proof of the signature of the person to whom it purports to be signed. In a criminal trial what is important is to prove the cause of death and for that purpose examination of the doctor who has conducted the postmortem may be necessary [refer, "Rajesh Kumar and Anr. v. State Government of NCT of Delhi" (2008) 4 SCC 493]. In view of the statutory provisions, we would say that the cause of death of Gouri Devi is not proved.
20. We would extract the testimony of PW9 in the Court for the purpose of lending assurance to the tentative opinion we have formed about failure of the prosecution to prove the charge beyond all reasonable doubts.
21. The testimony of PW9 Dr. Vijay Kumar Singh is extracted below:
" I was never posted in sub-divisional hospital at Tenughat. I am not acquainted with Dr. R.P. Singh who was posted at sub-divisional hospital, Tenughat.
I find in this PM report prepared by Dr. R.P. Singh as mentioned in the report that in the column of details about the injury that there was a single thin ligature mark around the neck without knot mark. There was blood stained froth into nose and mouth but no sign of dribbling of saliva at the angle of her mouth. There was lacerated injury into her vaginal orifice with swollen vulva. No external or internal injury found. The ligature mark was antemortem in nature and caused by thin rope (objected by defence).
In this report cause of death asphyxia due to strangulation (objected by defence). Manner of death is homicidal (objected by defence).
12 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters Time elapsed since death within 24 hours.
On the basis of injuries mentioned in this PM report opinion framed by the doctor concerned appears to me to be correct.
x x x x x On behalf of all accused.
(1) I am not acquainted with the hand writing and signature of Dr. R.P. Singh. It is a fact that not at any station I was posted with Dr. R.P. Singh.
(2) I have not seen the dead body whose postmortem has been done.
(3) I am not sure that this postmortem report is that of victim Gouri Devi.
(4) This postmortem report was not prepared in my presence."
22. On a perusal of postmortem report, PW9 stated in the Court that there was a single thin ligature mark around the neck without knot. There was lacerated injury into her vaginal orifice with swollen vulva but the doctor did not find any external or internal injury on the dead body. PW9 said that the ligature mark was antemortem in nature and caused by thin rope but this statement of PW9 was objected by the defence. He further stated that it is mentioned in the postmortem report that the cause of death was asphyxia due to strangulation and manner of death is homicidal. This statement of PW9 has also been objected by the defence. He has further stated that time elapsed since death was within 24 hours and that opinion of the doctor concerned appears to be correct. In his cross-examination he admitted that he ever saw the dead body of the deceased whose postmortem was done.
23. Gouri Devi suffered homicidal death at the hands of the appellants is not proved by the prosecution. In the Textbook of Medical Jurisprudence and Toxicology (26th Edition), Modi writes that in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal strangulation abrasions and ecchymoses round the ligature mark are found; carotid arteries' internal coats are ruptured and; larynx trachea and hyoid bone are fractured. Parikh's Textbook of Medical Jurisprudence Forensic Medicine and Toxicology, Sixth Edition, also refers to ligature mark in case of 13 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters homicidal death which usually would encircle neck horizontally below thyroid cartilage. It says that abrasions and bruises around the ligature mark are common in a case of homicidal death by strangulation.
24. Even though Dr. R.P. Singh was not examined in the Court and the postmortem report cannot be said to be proved by the prosecution, a glance at the observations of Dr. R.P. Singh recorded in the postmortem report do not reveal characteristic features of homicidal strangulation by ligature on the dead boy of Gouri Devi. In this context it is important to note that Kedar Yadav has set up a defence that his wife suffered death at the hands of unknown thieves in the night of 09 th February, 1995. He has stated in the Court when examined under section 313 of the Code of Criminal Procedure that in the night of 09 th February, 1995 his wife went out side the house to ease herself and soon thereafter he heard sound of "Chor-Chor", and when he went outside found his wife in injured condition. The witnesses have deposed in the Court that they saw blood marks around neck of Gouri Devi and the observation of the postmortem doctor about presence of thin ligature mark without knot over neck of Gouri Devi provide a clue about manner of her death - in an attempt to snatch her neck chain the unknown criminal caused her death.
25. In view of the aforesaid facts and circumstances in the case, we find ourselves unable to concur with the learned trial Judge that Gouri Devi suffered homicidal death at the hands of the appellants.
26. The next issue is whether the accused suffered serious prejudice during the trial on account of non-examination of the investigating officer. In the first place, we need to keep in mind that the prosecution has rested its case against the appellants on circumstantial evidence and neither the crime weapon was recovered nor was the cause of death of Gouri Devi established.
27. The discrepancies and inconsistencies in testimony of the prosecution witnesses which may appear minor in the first instance have assumed considerable significance in this case because the investigating officer was not examined during the trial. In every case, non-examination 14 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters of the investigating officer may not ipso facto cause prejudice to the accused and as observed by the Hon'ble Supreme Court in "Behari Prasad v. State of Bihar" (1996) 2 SCC 317 a cause of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula can be laid down that non-examination of the investigating officer per se vitiates a criminal crime. But in a case in which the place of occurrence, the manner of occurrence and participation of the accused in the crime are seriously challenged by the defence, if the investigating officer is not produced during the trial the accused would be seriously prejudiced.
28. From the testimony of PW1 and PW8, we find that Hari Gope who is the father-in-law of Gouri Devi was all along with the informant after an information was given to him through Karu Gope. Hari Gope accompanied him to the police station and came back home with the informant and others. No witness has said in the Court that Hari Gope or any of his family members was found absconding from their house. PW2 has admitted in his cross-examination that Baijnath Gope was talking to the police at the police station and they came to village Bandh Basti with Daroga Jee in police Jeep. He has stated in paragraph no.8 of the cross-examination that except injuries on Gouri Devi he said nothing to the police. The circumstance that Hari Gope accompanied the informant to the police station, came back home with them and did not attempt to cause disappearance of the dead body may lean in favour of the accused. Suresh Yadav and Gujar Yadav who are elder brothers-in-law of Gouri Devi took a specific stand that they were residing in a separate house and not with Gouri Devi and her husband. But in the absence of the investigating officer the appellants were seriously handicapped to take out the facts from him which would have thrown light on the actual cause of occurrence. The observation of the doctor that it was the thin ligature mark without knot over the neck of Gouri Devi and her clothes were found blood stained are also relevant circumstances which may probablize the defence set up by the husband.
15 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters
29. In "Behram Khurshid Pesikaka v. State of Bombay"
AIR 1955 SC 123 the Hon'ble Supreme Court has observed as under:
"15.... Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See AIR 1936 PC 169, also AIR 1940 Madras 1.) It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by Section 106 of the Evidence Act."
30. In "Dev Kanya Tiwari v. State of U.P." (2018) 5 SCC 734 the Hon'ble Supreme Court has observed that in a case based entirely on circumstantial evidence the Court should be more careful while analyzing evidence before conviction is recorded. We may also refer to the judgment in "Ranjit Singh v. State of Punjab" (2011) 15 SCC 285, wherein the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Indian Evidence Act to hold an accused guilty for murder.
31. In the circumstances, we hold that the charges under sections 304-B/34 and 302/34 of the Indian Penal Code are not established against the appellants.
32. There is one more reason why the conviction of the appellants under section 302/34 of the Indian Penal Code must be set-aside. A charge under section 302/34 of the Indian Penal Code was framed against the appellants but there is no discussion in the judgment how the charge under section 302/34 of the Indian Penal Code has been proved. This charge was framed after the prosecution had examined all its witnesses. The records however do not reveal that opportunity to further cross-examine the witnesses on the alleged charge was provided to the accused. We therefore need to look at section 217 of the Code of Criminal Procedure which deals with the procedure after the charge is altered.
16 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters
33. Section 217 of the Code of Criminal Procedure reads as under:
"Recall of witnesses when charge altered-- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed--
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material."
34. The law on the subject has been discussed in "R. Rachaiah v. Home Secy., Bangalore" (2016) 12 SCC 172, wherein the Hon'ble Supreme Court has observed as under:
"11. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or resummon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge."
35. In the result, the judgment of conviction of the appellants, namely, Kedar Yadav [in Criminal Appeal (DB) No. 582 of 2013], Gujar Gope @ Gujar Yadav and Suresh Yadav [in Criminal Appeal (DB) No. 568 of 2013], Hari Gope and Panwa Devi [in Criminal Appeal (DB) No.571 of 2013] for the offence under sections 302 and 304-B/34 of the Indian Penal Code dated 24 th July, 2012 and the order of sentence of RI for life under section 302 of the Indian Penal Code and RI for ten years and a fine of Rs.20,000/- each under section 304-B/34 of the Indian Penal Code dated 26th July, 2012 passed by the learned Addl. Sessions Judge-I, Bermo at Tenughat in S.T. No. 24 of 1996 are set-aside.
36. Mrs. Nehala Sharmin, the learned APP states that the 17 Cr. Appeal (D.B) No. 582 of 2013 & analogues matters appellant, namely, Kedar Yadav is in custody for more than 14 years, with remission, and the appellants, namely, Gujar Gope @ Gujar Yadav, Suresh Yadav, Hari Gope and Panwa Devi are on bail.
37. Accordingly, the appellants, namely, Gujar Gope @ Gujar Yadav and Suresh Yadav [in Criminal Appeal (DB) No. 568 of 2013], Hari Gope and Panwa Devi [in Criminal Appeal (DB) No.571 of 2013] are discharged of liability of the bail-bonds furnished by them.
38. The appellant, namely, Kedar Yadav [in Criminal Appeal (DB) No. 582 of 2013] who is in custody shall be set-free forthwith, if not wanted in connection to any other case.
39. In the result, Criminal Appeal (DB) Nos. 582 of 2013, 568 of 2013 and Criminal Appeal (DB) No. 571 of 2013 are allowed.
40. Let the lower Court records be transmitted to the Court concerned, forthwith.
41. Let a copy of the Judgment be transmitted to the Court concerned through FAX.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 21st October, 2021 sudhir/RKM AFR