Criminal Appeal (SJ) No.164 of 1995
With
Criminal Appeal (SJ) No. 215 of 1995
****
Against the judgment, dated 08.08.1995, passed by Sri Ram Nath,
Additional Sessions Judge, I, Saharsa, in Sessions Case No. 15 of 1991
****
1. Someshwar Mishra, son of Saktinath Mishra
2. Smt. Gauri Devi, wife of Shri Sommeshwar Mishra,
Both residents of village Sihaul, P.S.Bihra, district Saharsa
.. Appellants
(in Cr. Appeal (SJ) No. 164/95)
3. Pramod Mishra @ Parmod Mishra, son of Somneshwar Mishra,
resident of village Sihaul, P.S.Bihra, district Saharsa
.. Appellant
(in Cr. Appeal (SJ) No. 215/95)
Versus
The State Of Bihar .. Respondent
( in both the cases)
****
For the Appellant .. Mr. Suraj Narayan Sinha,
(in both the cases) Sr. Advocate with
M/S Rakesh Kumar Sinha &
Mira Kumari, Advs.
For the Respondent .. Mr. Parmeshwar Mehta, APP
(in both the cases)
****
PRESENT
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard the counsel for the appellantd and the State.
2. These two appeals are being heard together and
disposed off by this common judgment as both arise out of same
2
judgment passed by Shri Ramnath, Additional Sessions Judge, I,
Saharsa, in Sessions Case No. 15 of 1991, by which he has convicted
the appellants Someshwar Mishra of Cr. Appeal (S.J.) No. 164 of 1995
and Pramod Mishra of Cr. Appeal (S.J.) No. 215 of 1995 for offence
under Sections 3 and 4 of the Dowry Prohibition Act and sentenced to
undergo rigorous imprisonment for six months and, further, convicted
under Section 498A of the Penal Code and sentenced to undergo
rigorous imprisonment for two years, further, convicted under Section
201 of the Penal Code and sentenced to undergo rigorous imprisonment
for three years and has, further, convicted under Section 304B of the
Penal Code and sentenced to undergo rigorous imprisonment for seven
years. The appellant, Gauri Devi, of Cr. Appeal (S.J.) No. 164 of 1995
has, further, been convicted under Section 4 of the Dowry Prohibition
Act and sentenced to undergo rigorous imprisonment for six months
and has, further, been convicted under Section 498A of the Penal Code
and sentenced to undergo rigorous imprisonment for three years,
however, it has been ordered that all the sentences, against the convicts,
shall run concurrently.
3. The prosecution case is in three parts. The first part of
the prosecution case is that Rani Devi, the deceased, was married with
Pramod Kumar, appellant, son of Someshwar Mishra (appellant). After
marriage, the deceased was blessed with two children before
duragaman. After duragaman there was demand of Rs.51,000/-. The
deceased was subjected to cruelty for non-fulfillment of the demand of
said Rs.51,000/-. The deceased used to report about the demand to
3
naiher people. About ten days prior to the occurrence victim, Rani
Devi (deceased) ran over to naiher from sasural being vexed with the
demand and subjecting cruelty. She disclosed about the subjecting
cruelty for non-fulfillment of demand to her parents, like abuse and
threat to kill for non-fulfillment of the demand. About 4-5 days prior
to the occurrence, the victim, Rani Devi (deceased), further, sent to
sasural after assurance and persuasion of Gaya Mishra, a sasural
people.
4. The second part of the occurrence that on 06.07.1990 at
08.00-09.00 a.m., the co-villagers of the appellant (Pramod Kumar @
Pramod Mishra) saw smoke coming out from the matrimonial house of
Pramod Kumar @ Pramod Mishra and the deceased. The villagers
found some commotion in the courtyard and they rushed to the
matrimonial house of Pramod Mishra and the deceased, Rani Devi.
They found the door closed and found Rani Devi in burnt and
unconscious stage. The villagers entered the room through roof and
they took her out of the room in burnt unconscious stage, after setting
off fire. The husband also was in village came there. The villagers
arranged jeep. The husband, Pramod Mishra, took the deceased on
jeep in pretext of treatment of the deceased. However, the deceased
was neither treated nor any public authority was informed nor any
intimation was given to the naiher people of the deceased. Her dead
body was disposed in ditch by the side of B.S. College.
5. The third part of the prosecution case is that the
Principal and President of B.S. College were sitting in the college at
4
about 05.30 p.m. While they were in college they noticed that a jeep
came and disposed of the dead body wrapped in a quilt in the ditch in
the south east corner of B.S. College. They found the dead body in
ditch. They informed the police on telephone. The police received the
information at 06.10 p.m. on 06.07.1990. The police rushed to B.S.
College after making the station diary entry and reached B.S. College
at 06.25 p.m. on 06.07.1990. The Sub Inspector of Police (P.W. 9)
reached along with Constables Bishwanath Ram and Khakhan. The
dead body was found there, which was taken out from the ditch and
inquest report was prepared at 06.30 p.m. before the Principal and
President of B.S. College. The mother of the deceased also reached
there at the time of making the inquest and identified the dead body.
6. The mother of the deceased got rumour about the
murder of Rani Devi the co-villagers have relation in the sasural of
Rani Devi. She proceeded on rickshaw to enquire. In way she learnt
about the dead body at B.S. College. She reached at B.S. College. The
police prepared the inquest report, which was signed by the Principal
(P.W. 2) and the President, Rajeshwar Yadav (P.W. 7), of B.S. College.
7. The statement of the mother of the deceased was
recorded at 07.30 p.m. On the basis of the said written report, the first
information report was lodged and investigation proceeded. The post
mortem of the dead body of the deceased was conducted by P.W. 6, Dr.
Arun Kumar Singh, on 07.07.1990 at 01.20 p.m. The doctor (P.W. 6)
found deep burn injury on the person of the deceased on both
extremities of lower part, foul smell coming out of the dead body, skin
5
stripped of the extremities and the burn was found to be eighty per
cent. The death was due to shock and haemorrhaged by the above
injuries. The police, after investigation, submitted the charge sheet and
cognizance taken. Subsequently, the charge was framed before the
Court of Sessions under Sections 304B and 498A of the Penal Code
and 3 and 4 of the Dowry Prohibition Act.
8. During the trial nine witnesses examined on behalf of
the prosecution and eleven witnesses examined on behalf of the
defence.
9. The defence of the accused persons is that the marriage
was solemnized about ten years back to the occurrence and the accused
persons have falsely been implicated and there was no demand of
Rs.51,000/- as dowry. The said alleged demand is not a demand of
dowry, but, a demand for expense for the study for preparation nor was
the deceased subjected to cruelty. The relationship between the
deceased and the appellant, Pramod Mishra the husband of the
deceased, was good. The further defence of the accused person is that
one day prior to the occurrence, the father of the deceased went to
sasural of the deceased and on his visit the deceased got sentimental
and committed suicide. The death is not in suspicious circumstance.
The, further, defence is that Someshwar Mishra was married in village
Mahesi and has got land from sasural and has also purchased his own
land there and used to live at Mahesi along with his wife to look after
his old aged mother-in-law. He was separate from accused, Pramod
Mishra. He had no concern with Pramod Mishra. Pramod Mishra also
6
at the time of occurrence was not at his home and was in the paddy
field and when he came he found his wife unconscious.
10. The trial Court taking into consideration the evidence
of P.Ws. 5 and 8, the father and mother of the deceased, who deposed
that the marriage was solemnized on 30.05.1985, within six years of
the date of occurrence, there was demand of Rs.51,000/- as dowry and
victim subjected to cruelty for non-fulfillment of the demand of dowry
and found the death in suspicious circumstance to raise the
presumption for dowry death and, further, held that appellants could
not make out a probable defence to rebut the presumption and, hence,
convicted and sentenced the appellants, as mentioned above.
11. The learned counsel for the appellants, however,
contends that the ingredients of the offence under Section 304B of the
Penal Code has not been established as the marriage was solemnized
beyond seven years and subjecting cruelty for demand of dowry has not
been established. The demand of Rs.51,000/- was only for study of
Pramod Mishra is not a dowry demand. It has, further, been contended
that the deceased committed suicide. The inquest report has been
prepared at 06.30 p.m. whereas the fardbeyan has been recorded at
07.30 p.m. and the first information report was drawn at 07.30 p.m.
Hence, the fardbeyan is hit by Section 161 of the Criminal Procedure
Code as the statement of mother of the victim was recorded after the
inquest report and, hence, can not be treated as fardbeyan. The first
information report was sent to the Magistrate after three days and,
hence, there is violation of Section 157 of the Criminal Procedure Code
7
which castes doubt on police investigation and the drawing of first
information report was antedated. There is interpolation in the dates in
the first information report also indicates that fardbeyan and the first
information report is a suspicious document. It has, further, been
contended that the inquest report neither mentions the name of the
accused nor mentions the name of the witnesses nor the details of the
occurrence. Hence, the first information report lodged on the basis of
the fardbeyan is a development in the prosecution case and is not
required to be relied upon and the first information report can not be
treated as first information report of the case. It has, further, been
contended that if the ingredients of the offence under Section 304B of
the Penal Code has not been established then presumption under
Section113B of the Penal Code can not be drawn for the guilt of the
accused persons. The appellants have established the defence about
their absence from the place of occurrence is fit to be accepted.
12. The learned counsel for the State, however, contends
that there is ample evidence against the appellants. The prosecution
has proved that the marriage was solemnized within seven years of the
occurrence. The deceased was subjected to cruelty for non-fulfillment
of the dam and the death has been established to be in suspicious
circumstance. It has also been established from the evidence of P.Ws.
as well as D.Ws. that the deceased was burnt in the matrimonial house
of the victim. Pramod Mishra took her on jeep for treatment, but, no
evidence of the defence about her treatment or even about reporting the
matter to the Public Authorities and disposal off the dead body on the
8
same day by throwing it in a ditch, itself, indicates the involvement of
the husband and the death was in suspicious circumstance. The
accused persons did the occurrence for concealing the evidence to
protect the offender and, hence, the prosecution has proved it’s case
beyond reasonable doubt.
13. However, parties are at variance on fact on point of
date of marriage and demand of dowry and subjecting cruelty for non-
fulfillment of demand of Rs.51,000/- as dowry as well as death in
suspicious circumstance. P.W. 5 is the father of the deceased and has
deposed that the marriage was solemnized within seven years. He has
stated that he solemnized the marriage of the deceased, Rani Devi, with
Pramod Mishra, the son of Someshwar Mishra, on 30th May, 1985, on
ekadasi, on Monday. He in his cross examination has stated that
duragaman was held after four and half years. P.W. 8, the mother of
the deceased, stated that the marriage was solemnized about 5-6 years
prior to the occurrence. The victim was murdered about three years
prior to date of deposition on 15.06.1993 and Rani had two issues. In
her cross examination she has stated that the first issue of Rani was
after one and half years of the marriage and second issue was after one
and half years of the first issue. At the time of death of Rani the first
issue was aged about four and half years and, hence, the appellant
stood the test of cross examination that the marriage of the deceased
was six years prior to the occurrence.
14. However to the contrary the appellant relied upon the
evidence of P.W. 1, who has stated in his cross examination that
9
marriage was solemnized about 10-12 years back and, further, the
evidence of D.W. 4, who claims to be a Pandit having solemnized the
marriage of the deceased with Pramod Mishra and deposed that the
marriage performed on 21st May, 1981. However, this witness stated in
his cross examination that his statement was not recorded by police.
To a Court’s question he has stated that he can not say when his gauna
was performed. He has, further, said that he can not say on which date
his son, Purshotam Mishra got married. He has, further, stated that he
can not say when and in which year the daughter-in-law of Someshwar
Mishra died. Hence, the evidence of D.W. 4 does not inspire
confidence as has not stood the test of cross examination nor he clams
to be purrohit of appellant. However, taking into consideration, the
evidence of P.Ws. 4 and 8, who have stood the test of cross
examination and who were the father and mother of the deceased and,
hence, their evidence can not be discarded or disbelieved in contrast to
the evidence of P.W. 1 and D.W. 4 and, hence, it can well be inferred
that the marriage was solemnized on 30th May, 1985,within seven years
from 06.07.1990, the date of occurrence.
15. The next question is regarding the subjecting cruelty
on deceased for non-fulfillment of demand of Rs.51,000/- as dowry.
P.Ws. 5 and 8 have stated that there were demand of Rs.51,000/- and
deceased was subjected to cruelty for non-fulfillment of the said
demand. It is true that the demand said to have been made after
duragaman. P.W. 5 has stated that after 4-5 years of the marriage there
was duragaman. Prior to duragaman there was no demand. After
10
twenty days of duragaman the demand of Rs.51,000/- was raised.
However, with regard to demand the deceased had to run several times
to naiher. However, this witness has denied the duragaman and
deposed that this is not a fact that Pramod mishra was preparing for
I.A.S. It is argued on behalf of the defence and submitted that since the
demand was for study so it was not a demand of dowry. However,
mere suggestion there is nothing to show or brought in evidence that
the demand was really made for the study or Pramod Mishra for
preparing for I.A.S. nor there is evidence that Pramod was ere
preparing for I.A.S. or ever appeared in I.A.S. The demand was only
after duragaman, apparently in relation to marriage. However, the
dowry has been defined under the Dowry Prohibition Act which
describes that any demand at about or even after the marriage in
relation to marriage is a dowry demand. However, a demand was made
after duragaman apparently is a demand in relation to marriage,
however, defence raised by way of suggestion that it was for study.
However, P.Ws. 4 and 5, in their evidence, have stated that the said
demand of Rs.51,000/- was made and the deceased reported several
time and was compelled to run to naiher in relation to pressing demand.
Lastly about 9-10 days prior to the occurrence she was, again,
compelled to run to the naiher and reported about the subjecting cruelty
for non-fulfillment of demand, she was apprehensive of being burnt to
death. However, the informant unable to foresee the evil design, send
the deceased persuading her to go to sasural and, hence, the prosecution
has been able to prove subjecting cruelty for non-fulfillment of the
11
demand as dowry just before the occurrence.
16. The third point is that P.W. 1 as well as D.Ws. 3, 5, 6
and 10 has specifically stated that they saw the smoke coming out from
the house of Pramod Mishra and there was hulla and hearing some
commotion in the courtyard of Pramod Mishra went to the house of
Pramod Mishra. They found the deceased in a room which was
burning and then they entered into the room through the roof and found
the deceased in burnt stage and then she was taken out. Pramod Mishra
was not though seen there at the time when witnesses reached, but,
immediately reached there and, hence, he was there in the village and
then it was decided to save her. From the evidence of D.Ws. 5 and 6, it
is apparent that a jeep was called for taking the deceased for treatment
to save her and then Pramod Mishra took the deceased in the pretext of
treatment for hospital on 06.07.1990 in the morning. Hence, there is
clear evidence that the deceased found in burnt stage in a room of
Pramod Mishra and the villagers found her in burnt unconscious stage
and Pramod Mishra took her for treatment, but, the defence has not
brought any evidence that she was ever treated by any of the doctor or
in any of the hospital nor it has been brought in evidence or record that
the matter was reported to a Public Authority regarding her treatment
or recording the accident rather it has come in evidence that the dead
body was thrown in a ditch near B.S. College, Simraha, hence, it can
well be inferred the hand of Pramod Mishra death is in suspicious
circumstance. There is no rebuttal regarding these circumstances.
There is no explanation from Pramod Mishra why he has not treated
12
the deceased or reported the matter to the Public Authority.
17. P.W. 2 is the Principal of B.S. College. He has
deposed that on 06.07.1990 at 05.30 p.m. he was sitting in the verandah
of the College along with the President, Rajeshwar Yadav, P.W. 7. A
jeep with two persons came from the side of Saharsa and three away a
dead body wrapped in quilt in the south east corner of B.S. College.
They saw the dead body and informed the police on telephone. The
police came, inquest report was prepared and proved his signature on
the inquest report. The President of the College, Rajeshwar Yadav, has
been examined as P.W. 7 and was tendered. P.W. 9, Gaya Ram
Hansda, has stated that on 06.07.1990 he received information on
telephone about the dead body lying at B.S. College. He proceeded for
B.S. College after recording sanha and reached at B.S. College at 06.25
p.m. He took out the dead body from the ditch and prepared the
inquest. The mother of the deceased reached there and identified the
dead body. He recorded her statement and treated it as a fardbeyan.
He has proved the fardbeyan in his writing and the signature of Devta
Devi, which has been marked as Exhibit 6. He has also proved the first
information report, marked as Exhibit 7. He sent the dead body for
post mortem examination to Saharsa Hospital. The mother of the
deceased, P.W. 8, has deposed that she heard the rumour about the
death, proceeded on rickshaw to enquire and in way she learnt about
the dead body and reached and identified the dead body and there the
inquest report prepared and the statement was recorded. The mother of
the deceased, P.W. 8, has, further, supported the prosecution case about
13
the marriage within six years of the occurrence and subjecting cruelty
for non-fulfillment of the demand and P.W. 5, the father also supported
the prosecution case that the marriage solemnized on 30 th May, 1985,
and the deceased was subjected to cruelty for non-fulfillment of the
demand.
18. Hence, taking into consideration the entire evidence,
there is clear evidence that the marriage solemnized within seven years,
there was demand of Rs.51,000/- as dowry in relation to marriage, the
deceased was subjected to cruelty for non-fulfillment of the demand
and Pramod Kumar @ Pramod Mishra on 06.07.1990 as found in the
village whereas the deceased was found in burnt state in the
matrimonial house and the villagers taken out the deceased from the
room, arranged the jeep. P.W. 1 has supported the prosecution case
about the smoke coming out and he reached the matrimonial house
where the deceased was found in burnt unconscious stated and the
defence witness have also supported the prosecution case about the
deceased found in burnt state and D.Ws. 5 and 6 have supported the
prosecution case that the deceased was found burnt in the matrimonial
house and they arranged the jeep and the deceased was taken on jeep
and neither any public authority was informed nor any treatment was
given to the deceased nor the parents were informed and the dead body
was found disposed in a ditch near B.S. College and, further, the post
mortem examination suggest that deceased was done to death due to
burn injury. This evidence, itself, sufficient to hold that the death of
the deceased caused in suspicious circumstance and the husband is
14
primarily responsible for the offence as well as for offence under
Sections 304B and 498A of the Penal Code and 3 and 4 of the Dowry
Prohibition Act.
19. However, the criticism has been raised by the learned
counsel for the appellants that first information report was lodged on
07.07.1990, but, the same was received by the Magistrate on
09.07.1990 and, hence, there is delay in sending the first information
report to the Chief Judicial Magistrate and, hence, there is violation of
Section 157 of the Criminal Procedure Code and there is interpolation
in the first information report about the date and time of lodging of the
first information report. Hence, the argument developed by the learned
counsel for the appellants that the interpolation and belated dispatch of
the first information report to show that the investigation was not just
fair, therefore, the prosecution case be looked with great suspicion,
however, the argument is not acceptable. Section 157 of the Criminal
Procedure Code requires that the first information report be sent
forthwith by the Police Officer to the concerned Magistrate
empowering to take cognizance. This provision has been made to keep
the Magistrate inform of the investigation of the cognizable offence to
enable the Magistrate to control the investigation and give appropriate
direction under Section 159 of the Criminal Procedure Code.
However, under the facts and circumstances, the police informed about
the dead body having been disposed off. The police reached the place
of occurrence at 06.25 p.m. on 06.07.1990, prepared the inquest report
at 06.30 p.m. regarding the dead body of the deceased. The dead body
15
was immediately sent for post mortem examination along with the
inquest report with Constables Bishwanath Ram and Khakhan,. The
post mortem was done on 07.07.1990 at 01.20 p.m. The fardbeyan was
recorded at 07.30 p.m. on 06.07.1990 and the first information report
was immediately lodged at 12.30 a.m. on 07.07.1990 and the
investigation proceeded. The burnt remains of the house were searched
and seizure list prepared on 08.07.1990. Hence, merely because the
first information report not received by the Chief Judicial Magistrate
forthwith is no ground to reject the prosecution case and to denounce
and discard the cogent, reliable and trust worthy evidence on technical
grounds. However, the first information report lodged on 07.07.1990
and the said was received by the Chief Judicial Magistrate on
09.07.1990, itself, hence, there is no merit in the submission to doubt
the prosecution case merely on the ground that there delay in receiving
the first information report by the Chief Judicial Magistrate.
20. The criticism has, further, been made that the inquest
report was prepared prior to recording the fardbeyan. The fardbeyan
neither contains the name of the accused persons nor mentions the
details of the prosecution case nor mentions the name of the witnesses
and, hence, the prosecution case is doubtful regarding the complicity of
the accused facing the trial and, further, the fardbeyan is hit by Section
161 of the Criminal Procedure Code and for this proposition has placed
reliance upon decision reported in A.I.R. 1975 S.C., 1962 (supra),
(2007) 13 S.C.C., 501 (supra) and 1996 (2) B.L.J. 699 (Mangru
Singh & Ors. The State of Bihar).
16
21. However, it is pertinent to mention that in this case the
Principal of the B.S. College informed about the dead body disposed in
the ditch at the boundary of B.S. College. On the said information the
police proceeded after recording the sanha entry. However, the holding
an inquest contained in Section 174 of the Criminal Procedure Code
and the heading of the Section is “police to enquire on report suicide
etc.” The police have to proceed to the place where dead body of the
deceased is found. There in presence of two or more respectable
inhabitants of the neighborhood shall make an investigation and draw a
report of the apparent cause of death. He has to be described the
wound or other mark or injury as may be found on the body. It has to
be stated in what manner or what weapon or the instrument is used for
injuries appears to have been inflicted. The requirement of the section
is that the Police Officer shall refer the apparent cause of death
describing the options as may be found on the body and also the
weapon and instrument by which they appears to have been inflicted.
This has to be done in the presence of two or more respectable
inhabitants of the neighborhood. The section does not contemplate to
mention the details of the occurrence about the manner in which the
incidence took place or to mention name of the accused or the witness
in the inquest report. The basic purpose of holding an inquest is to
report regarding the apparent cause of death, i.e., whether it is a
homicidal, accidental or by some other machinery. However, it is
relevant to quote (1975) 4 S.C.C. 153 (supra)
“A perusal of this provision would clearly show that the
17
object of the proceeding under Section 174 is merely to
ascertain whether a person has died under suspicious
circumstance or an unnatural death and if so what is the
apparent cause of death”. The question regarding the
details as to how the deceased was assaulted or who
assaulted him or under what circumstance he was
assaulted appears to us to be foreign to the ambit and
scope of the proceeding under Section 174. Neither in this
circumstance was in practice nor in law it necessary for
the police to have mentioned these details in the inquest
repot”
22. This view has been fortified in decision reported in
(1991) 3 S.C.C., 627 (supra), (1975) 4 S.C.C., 122 (supra) and
(2003) 2 S.C.C., 518 (supra).
23. However, under the facts and circumstances of this
case, the prosecution case is in several parts, as discussed above, and
finally the dead body having been disposed off that noticed by P.W. 2
and he informed the police immediately and the police received the
information came and prepared the inquest report. In the meantime, the
mother of the deceased reached there being resident of the same area
and identified the dead body. However, information of a vague and
indefinite character about a dead body can not be treated as coming
under Section 154 of the Criminal Procedure Code a first information
report as the information on telephone given by the Principal, B.S.
College, neither mentions the name of the accused nor mentions the
18
name of the witnesses nor mentions about a cognizable offence and
there was no necessary details given. The police proceeded, the inquest
report prepared and while the inquest report was preparing the mother
of the deceased reached there identified the dead body, inquest report
prepared and her statement was recorded simultaneously. It can well
be presumed that the police stated that he reached at the plaintiff at
06.25 p.m. and he has stated that the inquest report was prepared at
06.30 p.m. However, the statement of the mother of victim is recorded
at 07.30 p.m., the inquest report is said to have been prepared at 06.30
p.m. and the police reached at 06.25 p.m., the time of preparing the
inquest report and the recording of the statement of the mother of the
deceased treated as fardbeyan is so proximate that there is no
probability of any deliberation. More over, the mother of the deceased
was not an eye witness to the occurrence, she has not seen that how the
deceased died nor she claimed to be an eye witness to the occurrence to
see that who were the person(s) who done the deceased to death. She
does not claim that she had the knowledge of the death whatever she
has stated in her evidence about the demand and subjecting cruelty at
the time of marriage is with regard to best effort and not about the date
of occurrence and there is nothing in her evidence to say that her
statement was tainted or suffers from any infirmity to have manipulated
or misdirected the investigation.
24. However, the learned counsel for the appellants has
placed reliance upon the two decisions for his submissions to
disbelieve the prosecution story as a tainted and doubtful. However, in
19
decision reported in A.I.R. 1975 S.C., 1962 (supra). In that case, the
first information report lodged at 10.00 p.m. and the inquest report was
prepared at 02.30 a.m. in the same night. However, the inquest report
mentions the name of only five persons out of the nine accused
persons’ names mentioned in the fardbeyan and though the name of
only five persons mentioned in the body of the inquest, but, the name
of nine persons were mentioned on the top of the inquest. The High
Court found it to be an addition made by the Assistant Sub Inspector of
Police to help the prosecution to bring the inquest in conformity of first
information report. It was, further, found that the fardbeyan was not
recorded at 10.00 p.m., but, the first information report was drawn after
preparation of the inquest and the investigating officer who admitted
that he prepared inquest and read out to the informant, but, he later
tried to say that he did not recollect whether he read out to informant,
Banta Singh, or not and, further, the High Court found the first
information report not written at 10.00 p.m., but, written after the
inquest report was prepared and, hence, held that since the prosecution
manipulated the prosecution case with regard to convict introducing the
name of appellant. However, having regard to the facts and
circumstances of the case reported in A.I.R. 1975 S.C., 1962 (supra) is
quite different and there no infirmity has been pointed out in the
prosecution case except that the name of accused witness and
prosecution case has not been mentioned in inquest which is not
required by law, however, merely in mentioning the name of accused
persons without finding any irregularity in the prosecution evidence it
20
is reliable and trust worthy can not be rejected and, hence, ratio
applicable in A.I.R. 1975 S.C., 1962 (supra) is not applicable. The
prosecution not rejected for reason that name of accused and witness
not mentioned in inquest, but, for reason the prosecution tried to
manipulate in the inquest by introducing the name of the accused.
25. In the case reported in (2007) 13 S.C.C., 501 (supra)
the fact that P.W. 13 gave information to police and investigation is
based on a version he gave what he learnt from P.W. 11, who was an
eye witness. Though P.W. 11 participated in showing the place of
occurrence, but, he did not prefer to lodge first information report and
did not disclose why he did not lodge the first information report. In
inquest report it was stated that he deceased was assaulted by sharp
cutting weapon by some unknown persons by which he died and the
name of assailant at all not disclosed and, hence, held that the first
information report is not reliable. However, here P.W. 11 was there
who is claimed to be eye witness, but, the name of the assailant not
mentioned. However, in the case at hand the mother of victim is not an
eye witness. He does not claim to be the eye witness nor she knows by
whom and how the victim was killed, whatever stated regarding death
of the victim is on mere suspicion. But, there is no amount of
plantation of prosecution case. However, under the present facts and
circumstances, the inquest report was prepared on seeing the dead body
and the mother of the deceased was not eye witness to the occurrence
nor she was knowing that how the deceased died nor she was knowing
that who were the witnesses nor she claimed to be the eye witness,
21
hence, the prosecution case can not be rejected only in view of the fact
that name of the accused and the name of the witness has not been
mentioned in the inquest report.
26. The police proceeded on the statement of the Principal,
P.W. 2, that a dead body is found in the ditch and P.W. 2 had no
knowledge about the accused and it was not a definite opinion and,
hence, it may not be treated as fardbeyan. However, it has been well
settled that a statement which come during the investigation can not be
treated as fardbeyan as it hit by Sections 161 and 162 of the Criminal
Procedure Code. However, the police proceeded on the statement of
P.W. 2 after recording sanha and when he reached the place of
occurrence found the dead body and there the statement of the mother
of the deceased recorded. Even if assuming that the information
received about the dead body of a person police proceed in preparation
of inquest then the statement made by the mother of the deceased can
be treated as a statement under Sections 161 and 162 of the Criminal
Procedure Code and the police may proceed for the investigation even
then if the evidence of witnesses during trial is found to be credible,
reliable, unimpeachable and trust worthy then the prosecution case can
not be rejected on the plea that fardbeyan is hit by Section 162 of the
Criminal Procedure Code as there was no first information report. It is
well settled that the receipt of registration of the first information report
is not the sine qua non for settling in motions of the machinery of
criminal investigation.
27. The learned counsel for the appellants has further
22
placed reliance that there is evidence that the father-in-law and mother-
in-law used to live in other village and the father has purchased land
and live at his sasural to look after his mother-in-law and has yet land
there and there is no evidence that the father-in-law and mother-in-law
were present at the time of occurrence at the place of occurrence and
there is no specific evidence about subjecting cruelty against the father-
in-law and mother-in-law.
28. However, there are evidence that Pramod Mishra was
found at the site of the occurrence and was seen by the witnesses.
However, with regard to the appellants, Someshwar Mishra and Gauri
Devi, are concerned, there is no evidence that they were present at the
site of the occurrence and there is evidence of the witnesses that
Someshwar Mishra was living at sasural at Mahesi to look after his
mother-in-law and remained in sasural there after purchase some of the
properties.
29. Hence, having regard to the circumstances that there is
no evidence regarding the presence of Someshwar Mishra and Gauri
Devi at the place of occurrence and, hence, they are entitled for the
benefit of doubt and, hence, I find and hold thepro has not been able to
prove the charge against Someshwar Mishra and Gauri Devi for
offence under Section 304B of the Penal Code and, hence, they are
acquitted.
30. However, the prosecution has been able to prove the
charge levelled against Pramod Mishra beyond reasonable doubt and,
hence, the conviction and sentenced recorded against Pramod Mishra is
23
hereby maintained.
31. Cr. Appeal (S.J.) No. 164 of 1995 is allowed and Cr.
Appeal (S.J.) No. 215 of 1995 is hereby dismissed.
( Gopal Prasad, J. )
The Patna High Court,
The 29th day of September 2011,
A.F.R.,
S.A.