{"id":120261,"date":"2011-09-29T00:00:00","date_gmt":"2011-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pramod-parmod-mishra-vs-state-of-bihar-on-29-september-2011"},"modified":"2018-08-29T17:01:54","modified_gmt":"2018-08-29T11:31:54","slug":"pramod-parmod-mishra-vs-state-of-bihar-on-29-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pramod-parmod-mishra-vs-state-of-bihar-on-29-september-2011","title":{"rendered":"Pramod @ Parmod Mishra vs State Of Bihar on 29 September, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Pramod @ Parmod Mishra vs State Of Bihar on 29 September, 2011<\/div>\n
Author: Gopal Prasad<\/div>\n
                             Criminal Appeal (SJ) No.164 of 1995\n                                             With\n                             Criminal Appeal (SJ) No. 215 of 1995\n\n                                             ****\n<\/pre>\n
                   Against the judgment, dated 08.08.1995, passed by Sri Ram Nath,
\n                   Additional Sessions Judge, I, Saharsa, in Sessions Case No. 15 of 1991<\/p>\n
                                              ****<\/p>\n
                   1. Someshwar Mishra, son of Saktinath Mishra\n<\/p>\n
                   2. Smt. Gauri Devi, wife of Shri Sommeshwar Mishra,
\n                      Both residents of village Sihaul, P.S.Bihra, district Saharsa
\n                                                          .. Appellants
\n                                                          (in Cr. Appeal (SJ) No. 164\/95)<\/p>\n
                   3. Pramod Mishra @ Parmod Mishra, son of Somneshwar Mishra,
\n                      resident of village Sihaul, P.S.Bihra, district Saharsa
\n                                                            .. Appellant
\n                                                           (in Cr. Appeal (SJ) No. 215\/95)<\/p>\n
                                             Versus<\/p>\n
                   The State Of Bihar                     .. Respondent
\n                                                          ( in both the cases)<\/p>\n
                                              ****<\/p>\n
                   For the Appellant                      .. Mr. Suraj Narayan Sinha,
\n                   (in both the cases)                       Sr. Advocate with
\n                                                             M\/S Rakesh Kumar Sinha &
\n                                                             Mira Kumari, Advs.\n<\/p>\n
                   For the Respondent                     .. Mr. Parmeshwar Mehta, APP\n                   (in both the cases)\n\n                                              ****\n\n                                         PRESENT\n\n                     THE HON'BLE MR. JUSTICE GOPAL PRASAD\n\nGopal Prasad, J.                Heard the counsel for the appellantd and the State.\n\n                                2. These two appeals are being heard together and\n\n<\/pre>\n
                   disposed off by this common judgment as both arise out of same
\n                               2<\/span><\/p>\n
judgment passed by Shri Ramnath, Additional Sessions Judge, I,<\/p>\n
Saharsa, in Sessions Case No. 15 of 1991, by which he has convicted<\/p>\n
the appellants Someshwar Mishra of Cr. Appeal (S.J.) No. 164 of 1995<\/p>\n
and Pramod Mishra of Cr. Appeal (S.J.) No. 215 of 1995 for offence<\/p>\n
under Sections 3 and 4 of the Dowry Prohibition Act and sentenced to<\/p>\n
undergo rigorous imprisonment for six months and, further, convicted<\/p>\n
under Section 498A of the Penal Code and sentenced to undergo<\/p>\n
rigorous imprisonment for two years, further, convicted under Section<\/p>\n
201 of the Penal Code and sentenced to undergo rigorous imprisonment<\/p>\n
for three years and has, further, convicted under Section 304B of the<\/p>\n
Penal Code and sentenced to undergo rigorous imprisonment for seven<\/p>\n
years. The appellant, Gauri Devi, of Cr. Appeal (S.J.) No. 164 of 1995<\/p>\n
has, further, been convicted under Section 4 of the Dowry Prohibition<\/p>\n
Act and sentenced to undergo rigorous imprisonment for six months<\/p>\n
and has, further, been convicted under Section 498A of the Penal Code<\/p>\n
and sentenced to undergo rigorous imprisonment for three years,<\/p>\n
however, it has been ordered that all the sentences, against the convicts,<\/p>\n
shall run concurrently.\n<\/p>\n
             3. The prosecution case is in three parts. The first part of<\/p>\n
the prosecution case is that Rani Devi, the deceased, was married with<\/p>\n
Pramod Kumar, appellant, son of Someshwar Mishra (appellant). After<\/p>\n
marriage, the deceased was blessed with two children before<\/p>\n
duragaman. After duragaman there was demand of Rs.51,000\/-. The<\/p>\n
deceased was subjected to cruelty for non-fulfillment of the demand of<\/p>\n
said Rs.51,000\/-. The deceased used to report about the demand to
\n                              3<\/span><\/p>\n
naiher people. About ten days prior to the occurrence victim, Rani<\/p>\n
Devi (deceased) ran over to naiher from sasural being vexed with the<\/p>\n
demand and subjecting cruelty. She disclosed about the subjecting<\/p>\n
cruelty for non-fulfillment of demand to her parents, like abuse and<\/p>\n
threat to kill for non-fulfillment of the demand. About 4-5 days prior<\/p>\n
to the occurrence, the victim, Rani Devi (deceased), further, sent to<\/p>\n
sasural after assurance and persuasion of Gaya Mishra, a sasural<\/p>\n
people.\n<\/p>\n
            4. The second part of the occurrence that on 06.07.1990 at<\/p>\n
08.00-09.00 a.m., the co-villagers of the appellant (Pramod Kumar @<\/p>\n
Pramod Mishra) saw smoke coming out from the matrimonial house of<\/p>\n
Pramod Kumar @ Pramod Mishra and the deceased. The villagers<\/p>\n
found some commotion in the courtyard and they rushed to the<\/p>\n
matrimonial house of Pramod Mishra and the deceased, Rani Devi.<\/p>\n
They found the door closed and found Rani Devi in burnt and<\/p>\n
unconscious stage. The villagers entered the room through roof and<\/p>\n
they took her out of the room in burnt unconscious stage, after setting<\/p>\n
off fire. The husband also was in village came there. The villagers<\/p>\n
arranged jeep. The husband, Pramod Mishra, took the deceased on<\/p>\n
jeep in pretext of treatment of the deceased. However, the deceased<\/p>\n
was neither treated nor any public authority was informed nor any<\/p>\n
intimation was given to the naiher people of the deceased. Her dead<\/p>\n
body was disposed in ditch by the side of B.S. College.<\/p>\n
            5. The third part of the prosecution case is that the<\/p>\n
Principal and President of B.S. College were sitting in the college at
\n                               4<\/span><\/p>\n
about 05.30 p.m. While they were in college they noticed that a jeep<\/p>\n
came and disposed of the dead body wrapped in a quilt in the ditch in<\/p>\n
the south east corner of B.S. College. They found the dead body in<\/p>\n
ditch. They informed the police on telephone. The police received the<\/p>\n
information at 06.10 p.m. on 06.07.1990. The police rushed to B.S.<\/p>\n
College after making the station diary entry and reached B.S. College<\/p>\n
at 06.25 p.m. on 06.07.1990. The Sub Inspector of Police (P.W. 9)<\/p>\n
reached along with Constables Bishwanath Ram and Khakhan. The<\/p>\n
dead body was found there, which was taken out from the ditch and<\/p>\n
inquest report was prepared at 06.30 p.m. before the Principal and<\/p>\n
President of B.S. College. The mother of the deceased also reached<\/p>\n
there at the time of making the inquest and identified the dead body.<\/p>\n
             6. The mother of the deceased got rumour about the<\/p>\n
murder of Rani Devi the co-villagers have relation in the sasural of<\/p>\n
Rani Devi. She proceeded on rickshaw to enquire. In way she learnt<\/p>\n
about the dead body at B.S. College. She reached at B.S. College. The<\/p>\n
police prepared the inquest report, which was signed by the Principal<\/p>\n
(P.W. 2) and the President, Rajeshwar Yadav (P.W. 7), of B.S. College.<\/p>\n
             7. The statement of the mother of the deceased was<\/p>\n
recorded at 07.30 p.m. On the basis of the said written report, the first<\/p>\n
information report was lodged and investigation proceeded. The post<\/p>\n
mortem of the dead body of the deceased was conducted by P.W. 6, Dr.<\/p>\n
Arun Kumar Singh, on 07.07.1990 at 01.20 p.m. The doctor (P.W. 6)<\/p>\n
found deep burn injury on the person of the deceased on both<\/p>\n
extremities of lower part, foul smell coming out of the dead body, skin
\n                               5<\/span><\/p>\n
stripped of the extremities and the burn was found to be eighty per<\/p>\n
cent. The death was due to shock and haemorrhaged by the above<\/p>\n
injuries. The police, after investigation, submitted the charge sheet and<\/p>\n
cognizance taken. Subsequently, the charge was framed before the<\/p>\n
Court of Sessions under Sections 304B and 498A of the Penal Code<\/p>\n
and 3 and 4 of the Dowry Prohibition Act.\n<\/p>\n
             8. During the trial nine witnesses examined on behalf of<\/p>\n
the prosecution and eleven witnesses examined on behalf of the<\/p>\n
defence.\n<\/p>\n
             9. The defence of the accused persons is that the marriage<\/p>\n
was solemnized about ten years back to the occurrence and the accused<\/p>\n
persons have falsely been implicated and there was no demand of<\/p>\n
Rs.51,000\/- as dowry. The said alleged demand is not a demand of<\/p>\n
dowry, but, a demand for expense for the study for preparation nor was<\/p>\n
the deceased subjected to cruelty.      The relationship between the<\/p>\n
deceased and the appellant, Pramod Mishra the husband of the<\/p>\n
deceased, was good. The further defence of the accused person is that<\/p>\n
one day prior to the occurrence, the father of the deceased went to<\/p>\n
sasural of the deceased and on his visit the deceased got sentimental<\/p>\n
and committed suicide. The death is not in suspicious circumstance.<\/p>\n
The, further, defence is that Someshwar Mishra was married in village<\/p>\n
Mahesi and has got land from sasural and has also purchased his own<\/p>\n
land there and used to live at Mahesi along with his wife to look after<\/p>\n
his old aged mother-in-law. He was separate from accused, Pramod<\/p>\n
Mishra. He had no concern with Pramod Mishra. Pramod Mishra also
\n                              6<\/span><\/p>\n
at the time of occurrence was not at his home and was in the paddy<\/p>\n
field and when he came he found his wife unconscious.<\/p>\n
            10. The trial Court taking into consideration the evidence<\/p>\n
of P.Ws. 5 and 8, the father and mother of the deceased, who deposed<\/p>\n
that the marriage was solemnized on 30.05.1985, within six years of<\/p>\n
the date of occurrence, there was demand of Rs.51,000\/- as dowry and<\/p>\n
victim subjected to cruelty for non-fulfillment of the demand of dowry<\/p>\n
and found the death in suspicious circumstance to raise the<\/p>\n
presumption for dowry death and, further, held that appellants could<\/p>\n
not make out a probable defence to rebut the presumption and, hence,<\/p>\n
convicted and sentenced the appellants, as mentioned above.<\/p>\n
            11. The learned counsel for the appellants, however,<\/p>\n
contends that the ingredients of the offence under Section 304B of the<\/p>\n
Penal Code has not been established as the marriage was solemnized<\/p>\n
beyond seven years and subjecting cruelty for demand of dowry has not<\/p>\n
been established. The demand of Rs.51,000\/- was only for study of<\/p>\n
Pramod Mishra is not a dowry demand. It has, further, been contended<\/p>\n
that the deceased committed suicide.     The inquest report has been<\/p>\n
prepared at 06.30 p.m. whereas the fardbeyan has been recorded at<\/p>\n
07.30 p.m. and the first information report was drawn at 07.30 p.m.<\/p>\n
Hence, the fardbeyan is hit by Section 161 of the Criminal Procedure<\/p>\n
Code as the statement of mother of the victim was recorded after the<\/p>\n
inquest report and, hence, can not be treated as fardbeyan. The first<\/p>\n
information report was sent to the Magistrate after three days and,<\/p>\n
hence, there is violation of Section 157 of the Criminal Procedure Code
\n                               7<\/span><\/p>\n
which castes doubt on police investigation and the drawing of first<\/p>\n
information report was antedated. There is interpolation in the dates in<\/p>\n
the first information report also indicates that fardbeyan and the first<\/p>\n
information report is a suspicious document.       It has, further, been<\/p>\n
contended that the inquest report neither mentions the name of the<\/p>\n
accused nor mentions the name of the witnesses nor the details of the<\/p>\n
occurrence. Hence, the first information report lodged on the basis of<\/p>\n
the fardbeyan is a development in the prosecution case and is not<\/p>\n
required to be relied upon and the first information report can not be<\/p>\n
treated as first information report of the case. It has, further, been<\/p>\n
contended that if the ingredients of the offence under Section 304B of<\/p>\n
the Penal Code has not been established then presumption under<\/p>\n
Section113B of the Penal Code can not be drawn for the guilt of the<\/p>\n
accused persons.    The appellants have established the defence about<\/p>\n
their absence from the place of occurrence is fit to be accepted.<\/p>\n
             12. The learned counsel for the State, however, contends<\/p>\n
that there is ample evidence against the appellants. The prosecution<\/p>\n
has proved that the marriage was solemnized within seven years of the<\/p>\n
occurrence. The deceased was subjected to cruelty for non-fulfillment<\/p>\n
of the dam and the death has been established to be in suspicious<\/p>\n
circumstance. It has also been established from the evidence of P.Ws.<\/p>\n
as well as D.Ws. that the deceased was burnt in the matrimonial house<\/p>\n
of the victim. Pramod Mishra took her on jeep for treatment, but, no<\/p>\n
evidence of the defence about her treatment or even about reporting the<\/p>\n
matter to the Public Authorities and disposal off the dead body on the
\n                               8<\/span><\/p>\n
same day by throwing it in a ditch, itself, indicates the involvement of<\/p>\n
the husband and the death was in suspicious circumstance.            The<\/p>\n
accused persons did the occurrence for concealing the evidence to<\/p>\n
protect the offender and, hence, the prosecution has proved it’s case<\/p>\n
beyond reasonable doubt.\n<\/p>\n
             13. However, parties are at variance on fact on point of<\/p>\n
date of marriage and demand of dowry and subjecting cruelty for non-<\/p>\n
fulfillment of demand of Rs.51,000\/- as dowry as well as death in<\/p>\n
suspicious circumstance. P.W. 5 is the father of the deceased and has<\/p>\n
deposed that the marriage was solemnized within seven years. He has<\/p>\n
stated that he solemnized the marriage of the deceased, Rani Devi, with<\/p>\n
Pramod Mishra, the son of Someshwar Mishra, on 30th May, 1985, on<\/p>\n
ekadasi, on Monday.      He in his cross examination has stated that<\/p>\n
duragaman was held after four and half years. P.W. 8, the mother of<\/p>\n
the deceased, stated that the marriage was solemnized about 5-6 years<\/p>\n
prior to the occurrence. The victim was murdered about three years<\/p>\n
prior to date of deposition on 15.06.1993 and Rani had two issues. In<\/p>\n
her cross examination she has stated that the first issue of Rani was<\/p>\n
after one and half years of the marriage and second issue was after one<\/p>\n
and half years of the first issue. At the time of death of Rani the first<\/p>\n
issue was aged about four and half years and, hence, the appellant<\/p>\n
stood the test of cross examination that the marriage of the deceased<\/p>\n
was six years prior to the occurrence.\n<\/p>\n
             14. However to the contrary the appellant relied upon the<\/p>\n
evidence of P.W. 1, who has stated in his cross examination that
\n                              9<\/span><\/p>\n
marriage was solemnized about 10-12 years back and, further, the<\/p>\n
evidence of D.W. 4, who claims to be a Pandit having solemnized the<\/p>\n
marriage of the deceased with Pramod Mishra and deposed that the<\/p>\n
marriage performed on 21st May, 1981. However, this witness stated in<\/p>\n
his cross examination that his statement was not recorded by police.<\/p>\n
To a Court’s question he has stated that he can not say when his gauna<\/p>\n
was performed. He has, further, said that he can not say on which date<\/p>\n
his son, Purshotam Mishra got married. He has, further, stated that he<\/p>\n
can not say when and in which year the daughter-in-law of Someshwar<\/p>\n
Mishra died.    Hence, the evidence of D.W. 4 does not inspire<\/p>\n
confidence as has not stood the test of cross examination nor he clams<\/p>\n
to be purrohit of appellant. However, taking into consideration, the<\/p>\n
evidence of P.Ws. 4 and 8, who have stood the test of cross<\/p>\n
examination and who were the father and mother of the deceased and,<\/p>\n
hence, their evidence can not be discarded or disbelieved in contrast to<\/p>\n
the evidence of P.W. 1 and D.W. 4 and, hence, it can well be inferred<\/p>\n
that the marriage was solemnized on 30th May, 1985,within seven years<\/p>\n
from 06.07.1990, the date of occurrence.\n<\/p>\n
            15. The next question is regarding the subjecting cruelty<\/p>\n
on deceased for non-fulfillment of demand of Rs.51,000\/- as dowry.<\/p>\n
P.Ws. 5 and 8 have stated that there were demand of Rs.51,000\/- and<\/p>\n
deceased was subjected to cruelty for non-fulfillment of the said<\/p>\n
demand.    It is true that the demand said to have been made after<\/p>\n
duragaman. P.W. 5 has stated that after 4-5 years of the marriage there<\/p>\n
was duragaman. Prior to duragaman there was no demand. After
\n                              10<\/span><\/p>\n
twenty days of duragaman the demand of Rs.51,000\/- was raised.<\/p>\n
However, with regard to demand the deceased had to run several times<\/p>\n
to naiher.   However, this witness has denied the duragaman and<\/p>\n
deposed that this is not a fact that Pramod mishra was preparing for<\/p>\n
I.A.S. It is argued on behalf of the defence and submitted that since the<\/p>\n
demand was for study so it was not a demand of dowry. However,<\/p>\n
mere suggestion there is nothing to show or brought in evidence that<\/p>\n
the demand was really made for the study or Pramod Mishra for<\/p>\n
preparing for I.A.S. nor there is evidence that Pramod was ere<\/p>\n
preparing for I.A.S. or ever appeared in I.A.S. The demand was only<\/p>\n
after duragaman, apparently in relation to marriage.      However, the<\/p>\n
dowry has been defined under the Dowry Prohibition Act which<\/p>\n
describes that any demand at about or even after the marriage in<\/p>\n
relation to marriage is a dowry demand. However, a demand was made<\/p>\n
after duragaman apparently is a demand in relation to marriage,<\/p>\n
however, defence raised by way of suggestion that it was for study.<\/p>\n
However, P.Ws. 4 and 5, in their evidence, have stated that the said<\/p>\n
demand of Rs.51,000\/- was made and the deceased reported several<\/p>\n
time and was compelled to run to naiher in relation to pressing demand.<\/p>\n
Lastly about 9-10 days prior to the occurrence she was, again,<\/p>\n
compelled to run to the naiher and reported about the subjecting cruelty<\/p>\n
for non-fulfillment of demand, she was apprehensive of being burnt to<\/p>\n
death. However, the informant unable to foresee the evil design, send<\/p>\n
the deceased persuading her to go to sasural and, hence, the prosecution<\/p>\n
has been able to prove subjecting cruelty for non-fulfillment of the
\n                              11<\/span><\/p>\n
demand as dowry just before the occurrence.\n<\/p>\n
             16. The third point is that P.W. 1 as well as D.Ws. 3, 5, 6<\/p>\n
and 10 has specifically stated that they saw the smoke coming out from<\/p>\n
the house of Pramod Mishra and there was hulla and hearing some<\/p>\n
commotion in the courtyard of Pramod Mishra went to the house of<\/p>\n
Pramod Mishra.     They found the deceased in a room which was<\/p>\n
burning and then they entered into the room through the roof and found<\/p>\n
the deceased in burnt stage and then she was taken out. Pramod Mishra<\/p>\n
was not though seen there at the time when witnesses reached, but,<\/p>\n
immediately reached there and, hence, he was there in the village and<\/p>\n
then it was decided to save her. From the evidence of D.Ws. 5 and 6, it<\/p>\n
is apparent that a jeep was called for taking the deceased for treatment<\/p>\n
to save her and then Pramod Mishra took the deceased in the pretext of<\/p>\n
treatment for hospital on 06.07.1990 in the morning. Hence, there is<\/p>\n
clear evidence that the deceased found in burnt stage in a room of<\/p>\n
Pramod Mishra and the villagers found her in burnt unconscious stage<\/p>\n
and Pramod Mishra took her for treatment, but, the defence has not<\/p>\n
brought any evidence that she was ever treated by any of the doctor or<\/p>\n
in any of the hospital nor it has been brought in evidence or record that<\/p>\n
the matter was reported to a Public Authority regarding her treatment<\/p>\n
or recording the accident rather it has come in evidence that the dead<\/p>\n
body was thrown in a ditch near B.S. College, Simraha, hence, it can<\/p>\n
well be inferred the hand of Pramod Mishra death is in suspicious<\/p>\n
circumstance.   There is no rebuttal regarding these circumstances.<\/p>\n
There is no explanation from Pramod Mishra why he has not treated
\n                              12<\/span><\/p>\n
the deceased or reported the matter to the Public Authority.<\/p>\n
             17. P.W. 2 is the Principal of B.S. College.       He has<\/p>\n
deposed that on 06.07.1990 at 05.30 p.m. he was sitting in the verandah<\/p>\n
of the College along with the President, Rajeshwar Yadav, P.W. 7. A<\/p>\n
jeep with two persons came from the side of Saharsa and three away a<\/p>\n
dead body wrapped in quilt in the south east corner of B.S. College.<\/p>\n
They saw the dead body and informed the police on telephone. The<\/p>\n
police came, inquest report was prepared and proved his signature on<\/p>\n
the inquest report. The President of the College, Rajeshwar Yadav, has<\/p>\n
been examined as P.W. 7 and was tendered.          P.W. 9, Gaya Ram<\/p>\n
Hansda, has stated that on 06.07.1990 he received information on<\/p>\n
telephone about the dead body lying at B.S. College. He proceeded for<\/p>\n
B.S. College after recording sanha and reached at B.S. College at 06.25<\/p>\n
p.m. He took out the dead body from the ditch and prepared the<\/p>\n
inquest. The mother of the deceased reached there and identified the<\/p>\n
dead body. He recorded her statement and treated it as a fardbeyan.<\/p>\n
He has proved the fardbeyan in his writing and the signature of Devta<\/p>\n
Devi, which has been marked as Exhibit 6. He has also proved the first<\/p>\n
information report, marked as Exhibit 7. He sent the dead body for<\/p>\n
post mortem examination to Saharsa Hospital.        The mother of the<\/p>\n
deceased, P.W. 8, has deposed that she heard the rumour about the<\/p>\n
death, proceeded on rickshaw to enquire and in way she learnt about<\/p>\n
the dead body and reached and identified the dead body and there the<\/p>\n
inquest report prepared and the statement was recorded. The mother of<\/p>\n
the deceased, P.W. 8, has, further, supported the prosecution case about
\n                              13<\/span><\/p>\n
the marriage within six years of the occurrence and subjecting cruelty<\/p>\n
for non-fulfillment of the demand and P.W. 5, the father also supported<\/p>\n
the prosecution case that the marriage solemnized on 30 th May, 1985,<\/p>\n
and the deceased was subjected to cruelty for non-fulfillment of the<\/p>\n
demand.\n<\/p>\n
            18. Hence, taking into consideration the entire evidence,<\/p>\n
there is clear evidence that the marriage solemnized within seven years,<\/p>\n
there was demand of Rs.51,000\/- as dowry in relation to marriage, the<\/p>\n
deceased was subjected to cruelty for non-fulfillment of the demand<\/p>\n
and Pramod Kumar @ Pramod Mishra on 06.07.1990 as found in the<\/p>\n
village whereas the deceased was found in burnt state in the<\/p>\n
matrimonial house and the villagers taken out the deceased from the<\/p>\n
room, arranged the jeep. P.W. 1 has supported the prosecution case<\/p>\n
about the smoke coming out and he reached the matrimonial house<\/p>\n
where the deceased was found in burnt unconscious stated and the<\/p>\n
defence witness have also supported the prosecution case about the<\/p>\n
deceased found in burnt state and D.Ws. 5 and 6 have supported the<\/p>\n
prosecution case that the deceased was found burnt in the matrimonial<\/p>\n
house and they arranged the jeep and the deceased was taken on jeep<\/p>\n
and neither any public authority was informed nor any treatment was<\/p>\n
given to the deceased nor the parents were informed and the dead body<\/p>\n
was found disposed in a ditch near B.S. College and, further, the post<\/p>\n
mortem examination suggest that deceased was done to death due to<\/p>\n
burn injury. This evidence, itself, sufficient to hold that the death of<\/p>\n
the deceased caused in suspicious circumstance and the husband is
\n                              14<\/span><\/p>\n
primarily responsible for the offence as well as for offence under<\/p>\n
Sections 304B and 498A of the Penal Code and 3 and 4 of the Dowry<\/p>\n
Prohibition Act.\n<\/p>\n
             19. However, the criticism has been raised by the learned<\/p>\n
counsel for the appellants that first information report was lodged on<\/p>\n
07.07.1990, but, the same was received by the Magistrate on<\/p>\n
09.07.1990 and, hence, there is delay in sending the first information<\/p>\n
report to the Chief Judicial Magistrate and, hence, there is violation of<\/p>\n
Section 157 of the Criminal Procedure Code and there is interpolation<\/p>\n
in the first information report about the date and time of lodging of the<\/p>\n
first information report. Hence, the argument developed by the learned<\/p>\n
counsel for the appellants that the interpolation and belated dispatch of<\/p>\n
the first information report to show that the investigation was not just<\/p>\n
fair, therefore, the prosecution case be looked with great suspicion,<\/p>\n
however, the argument is not acceptable. Section 157 of the Criminal<\/p>\n
Procedure Code requires that the first information report be sent<\/p>\n
forthwith by the Police Officer to the concerned Magistrate<\/p>\n
empowering to take cognizance. This provision has been made to keep<\/p>\n
the Magistrate inform of the investigation of the cognizable offence to<\/p>\n
enable the Magistrate to control the investigation and give appropriate<\/p>\n
direction under Section 159 of the Criminal Procedure Code.<\/p>\n
However, under the facts and circumstances, the police informed about<\/p>\n
the dead body having been disposed off. The police reached the place<\/p>\n
of occurrence at 06.25 p.m. on 06.07.1990, prepared the inquest report<\/p>\n
at 06.30 p.m. regarding the dead body of the deceased. The dead body
\n                               15<\/span><\/p>\n
was immediately sent for post mortem examination along with the<\/p>\n
inquest report with Constables Bishwanath Ram and Khakhan,. The<\/p>\n
post mortem was done on 07.07.1990 at 01.20 p.m. The fardbeyan was<\/p>\n
recorded at 07.30 p.m. on 06.07.1990 and the first information report<\/p>\n
was immediately lodged at 12.30 a.m. on 07.07.1990 and the<\/p>\n
investigation proceeded. The burnt remains of the house were searched<\/p>\n
and seizure list prepared on 08.07.1990.     Hence, merely because the<\/p>\n
first information report not received by the Chief Judicial Magistrate<\/p>\n
forthwith is no ground to reject the prosecution case and to denounce<\/p>\n
and discard the cogent, reliable and trust worthy evidence on technical<\/p>\n
grounds. However, the first information report lodged on 07.07.1990<\/p>\n
and the said was received by the Chief Judicial Magistrate on<\/p>\n
09.07.1990, itself, hence, there is no merit in the submission to doubt<\/p>\n
the prosecution case merely on the ground that there delay in receiving<\/p>\n
the first information report by the Chief Judicial Magistrate.<\/p>\n
             20. The criticism has, further, been made that the inquest<\/p>\n
report was prepared prior to recording the fardbeyan. The fardbeyan<\/p>\n
neither contains the name of the accused persons nor mentions the<\/p>\n
details of the prosecution case nor mentions the name of the witnesses<\/p>\n
and, hence, the prosecution case is doubtful regarding the complicity of<\/p>\n
the accused facing the trial and, further, the fardbeyan is hit by Section<\/p>\n
161 of the Criminal Procedure Code and for this proposition has placed<\/p>\n
reliance upon decision reported in A.I.R. 1975 S.C., 1962 (supra),<\/p>\n
(2007) 13 S.C.C., 501 (supra) and 1996 (2) B.L.J. 699 (Mangru<\/p>\n
Singh & Ors. The State of Bihar).\n<\/p>\n
                             16<\/span><\/p>\n
            21. However, it is pertinent to mention that in this case the<\/p>\n
Principal of the B.S. College informed about the dead body disposed in<\/p>\n
the ditch at the boundary of B.S. College. On the said information the<\/p>\n
police proceeded after recording the sanha entry. However, the holding<\/p>\n
an inquest contained in Section 174 of the Criminal Procedure Code<\/p>\n
and the heading of the Section is “police to enquire on report suicide<\/p>\n
etc.” The police have to proceed to the place where dead body of the<\/p>\n
deceased is found.   There in presence of two or more respectable<\/p>\n
inhabitants of the neighborhood shall make an investigation and draw a<\/p>\n
report of the apparent cause of death. He has to be described the<\/p>\n
wound or other mark or injury as may be found on the body. It has to<\/p>\n
be stated in what manner or what weapon or the instrument is used for<\/p>\n
injuries appears to have been inflicted. The requirement of the section<\/p>\n
is that the Police Officer shall refer the apparent cause of death<\/p>\n
describing the options as may be found on the body and also the<\/p>\n
weapon and instrument by which they appears to have been inflicted.<\/p>\n
This has to be done in the presence of two or more respectable<\/p>\n
inhabitants of the neighborhood. The section does not contemplate to<\/p>\n
mention the details of the occurrence about the manner in which the<\/p>\n
incidence took place or to mention name of the accused or the witness<\/p>\n
in the inquest report. The basic purpose of holding an inquest is to<\/p>\n
report regarding the apparent cause of death, i.e., whether it is a<\/p>\n
homicidal, accidental or by some other machinery. However, it is<\/p>\n
relevant to quote (1975) 4 S.C.C. 153 (supra)<\/p>\n
            “A perusal of this provision would clearly show that the
\n                             17<\/span><\/p>\n
            object of the proceeding under Section 174 is merely to<\/p>\n
            ascertain whether a person has died under suspicious<\/p>\n
            circumstance or an unnatural death and if so what is the<\/p>\n
            apparent cause of death”.     The question regarding the<\/p>\n
            details as to how the deceased was assaulted or who<\/p>\n
            assaulted him or under what circumstance he was<\/p>\n
            assaulted appears to us to be foreign to the ambit and<\/p>\n
            scope of the proceeding under Section 174. Neither in this<\/p>\n
            circumstance was in practice nor in law it necessary for<\/p>\n
            the police to have mentioned these details in the inquest<\/p>\n
            repot”\n<\/p>\n
            22. This view has been fortified in decision reported in<\/p>\n
(1991) 3 S.C.C., 627 (supra), (1975) 4 S.C.C., 122 (supra) and<\/p>\n
(2003) 2 S.C.C., 518 (supra).\n<\/p>\n
            23. However, under the facts and circumstances of this<\/p>\n
case, the prosecution case is in several parts, as discussed above, and<\/p>\n
finally the dead body having been disposed off that noticed by P.W. 2<\/p>\n
and he informed the police immediately and the police received the<\/p>\n
information came and prepared the inquest report. In the meantime, the<\/p>\n
mother of the deceased reached there being resident of the same area<\/p>\n
and identified the dead body. However, information of a vague and<\/p>\n
indefinite character about a dead body can not be treated as coming<\/p>\n
under Section 154 of the Criminal Procedure Code a first information<\/p>\n
report as the information on telephone given by the Principal, B.S.<\/p>\n
College, neither mentions the name of the accused nor mentions the
\n                              18<\/span><\/p>\n
name of the witnesses nor mentions about a cognizable offence and<\/p>\n
there was no necessary details given. The police proceeded, the inquest<\/p>\n
report prepared and while the inquest report was preparing the mother<\/p>\n
of the deceased reached there identified the dead body, inquest report<\/p>\n
prepared and her statement was recorded simultaneously. It can well<\/p>\n
be presumed that the police stated that he reached at the plaintiff at<\/p>\n
06.25 p.m. and he has stated that the inquest report was prepared at<\/p>\n
06.30 p.m. However, the statement of the mother of victim is recorded<\/p>\n
at 07.30 p.m., the inquest report is said to have been prepared at 06.30<\/p>\n
p.m. and the police reached at 06.25 p.m., the time of preparing the<\/p>\n
inquest report and the recording of the statement of the mother of the<\/p>\n
deceased treated as fardbeyan is so proximate that there is no<\/p>\n
probability of any deliberation. More over, the mother of the deceased<\/p>\n
was not an eye witness to the occurrence, she has not seen that how the<\/p>\n
deceased died nor she claimed to be an eye witness to the occurrence to<\/p>\n
see that who were the person(s) who done the deceased to death. She<\/p>\n
does not claim that she had the knowledge of the death whatever she<\/p>\n
has stated in her evidence about the demand and subjecting cruelty at<\/p>\n
the time of marriage is with regard to best effort and not about the date<\/p>\n
of occurrence and there is nothing in her evidence to say that her<\/p>\n
statement was tainted or suffers from any infirmity to have manipulated<\/p>\n
or misdirected the investigation.\n<\/p>\n
             24. However, the learned counsel for the appellants has<\/p>\n
placed reliance upon the two decisions for his submissions to<\/p>\n
disbelieve the prosecution story as a tainted and doubtful. However, in
\n                               19<\/span><\/p>\n
decision reported in A.I.R. 1975 S.C., 1962 (supra). In that case, the<\/p>\n
first information report lodged at 10.00 p.m. and the inquest report was<\/p>\n
prepared at 02.30 a.m. in the same night. However, the inquest report<\/p>\n
mentions the name of only five persons out of the nine accused<\/p>\n
persons’ names mentioned in the fardbeyan and though the name of<\/p>\n
only five persons mentioned in the body of the inquest, but, the name<\/p>\n
of nine persons were mentioned on the top of the inquest. The High<\/p>\n
Court found it to be an addition made by the Assistant Sub Inspector of<\/p>\n
Police to help the prosecution to bring the inquest in conformity of first<\/p>\n
information report. It was, further, found that the fardbeyan was not<\/p>\n
recorded at 10.00 p.m., but, the first information report was drawn after<\/p>\n
preparation of the inquest and the investigating officer who admitted<\/p>\n
that he prepared inquest and read out to the informant, but, he later<\/p>\n
tried to say that he did not recollect whether he read out to informant,<\/p>\n
Banta Singh, or not and, further, the High Court found the first<\/p>\n
information report not written at 10.00 p.m., but, written after the<\/p>\n
inquest report was prepared and, hence, held that since the prosecution<\/p>\n
manipulated the prosecution case with regard to convict introducing the<\/p>\n
name of appellant.       However, having regard to the facts and<\/p>\n
circumstances of the case reported in A.I.R. 1975 S.C., 1962 (supra) is<\/p>\n
quite different and there no infirmity has been pointed out in the<\/p>\n
prosecution case except that the name of accused witness and<\/p>\n
prosecution case has not been mentioned in inquest which is not<\/p>\n
required by law, however, merely in mentioning the name of accused<\/p>\n
persons without finding any irregularity in the prosecution evidence it
\n                              20<\/span><\/p>\n
is reliable and trust worthy can not be rejected and, hence, ratio<\/p>\n
applicable in A.I.R. 1975 S.C., 1962 (supra) is not applicable. The<\/p>\n
prosecution not rejected for reason that name of accused and witness<\/p>\n
not mentioned in inquest, but, for reason the prosecution tried to<\/p>\n
manipulate in the inquest by introducing the name of the accused.<\/p>\n
            25. In the case reported in (2007) 13 S.C.C., 501 (supra)<\/p>\n
the fact that P.W. 13 gave information to police and investigation is<\/p>\n
based on a version he gave what he learnt from P.W. 11, who was an<\/p>\n
eye witness. Though P.W. 11 participated in showing the place of<\/p>\n
occurrence, but, he did not prefer to lodge first information report and<\/p>\n
did not disclose why he did not lodge the first information report. In<\/p>\n
inquest report it was stated that he deceased was assaulted by sharp<\/p>\n
cutting weapon by some unknown persons by which he died and the<\/p>\n
name of assailant at all not disclosed and, hence, held that the first<\/p>\n
information report is not reliable. However, here P.W. 11 was there<\/p>\n
who is claimed to be eye witness, but, the name of the assailant not<\/p>\n
mentioned. However, in the case at hand the mother of victim is not an<\/p>\n
eye witness. He does not claim to be the eye witness nor she knows by<\/p>\n
whom and how the victim was killed, whatever stated regarding death<\/p>\n
of the victim is on mere suspicion.       But, there is no amount of<\/p>\n
plantation of prosecution case. However, under the present facts and<\/p>\n
circumstances, the inquest report was prepared on seeing the dead body<\/p>\n
and the mother of the deceased was not eye witness to the occurrence<\/p>\n
nor she was knowing that how the deceased died nor she was knowing<\/p>\n
that who were the witnesses nor she claimed to be the eye witness,
\n                                21<\/span><\/p>\n
hence, the prosecution case can not be rejected only in view of the fact<\/p>\n
that name of the accused and the name of the witness has not been<\/p>\n
mentioned in the inquest report.\n<\/p>\n
             26. The police proceeded on the statement of the Principal,<\/p>\n
P.W. 2, that a dead body is found in the ditch and P.W. 2 had no<\/p>\n
knowledge about the accused and it was not a definite opinion and,<\/p>\n
hence, it may not be treated as fardbeyan. However, it has been well<\/p>\n
settled that a statement which come during the investigation can not be<\/p>\n
treated as fardbeyan as it hit by Sections 161 and 162 of the Criminal<\/p>\n
Procedure Code. However, the police proceeded on the statement of<\/p>\n
P.W. 2 after recording sanha and when he reached the place of<\/p>\n
occurrence found the dead body and there the statement of the mother<\/p>\n
of the deceased recorded.       Even if assuming that the information<\/p>\n
received about the dead body of a person police proceed in preparation<\/p>\n
of inquest then the statement made by the mother of the deceased can<\/p>\n
be treated as a statement under Sections 161 and 162 of the Criminal<\/p>\n
Procedure Code and the police may proceed for the investigation even<\/p>\n
then if the evidence of witnesses during trial is found to be credible,<\/p>\n
reliable, unimpeachable and trust worthy then the prosecution case can<\/p>\n
not be rejected on the plea that fardbeyan is hit by Section 162 of the<\/p>\n
Criminal Procedure Code as there was no first information report. It is<\/p>\n
well settled that the receipt of registration of the first information report<\/p>\n
is not the sine qua non for settling in motions of the machinery of<\/p>\n
criminal investigation.\n<\/p>\n
             27. The learned counsel for the appellants has further
\n                               22<\/span><\/p>\n
placed reliance that there is evidence that the father-in-law and mother-<\/p>\n
in-law used to live in other village and the father has purchased land<\/p>\n
and live at his sasural to look after his mother-in-law and has yet land<\/p>\n
there and there is no evidence that the father-in-law and mother-in-law<\/p>\n
were present at the time of occurrence at the place of occurrence and<\/p>\n
there is no specific evidence about subjecting cruelty against the father-<\/p>\n
in-law and mother-in-law.\n<\/p>\n
              28. However, there are evidence that Pramod Mishra was<\/p>\n
found at the site of the occurrence and was seen by the witnesses.<\/p>\n
However, with regard to the appellants, Someshwar Mishra and Gauri<\/p>\n
Devi, are concerned, there is no evidence that they were present at the<\/p>\n
site of the occurrence and there is evidence of the witnesses that<\/p>\n
Someshwar Mishra was living at sasural at Mahesi to look after his<\/p>\n
mother-in-law and remained in sasural there after purchase some of the<\/p>\n
properties.\n<\/p>\n
              29. Hence, having regard to the circumstances that there is<\/p>\n
no evidence regarding the presence of Someshwar Mishra and Gauri<\/p>\n
Devi at the place of occurrence and, hence, they are entitled for the<\/p>\n
benefit of doubt and, hence, I find and hold thepro has not been able to<\/p>\n
prove the charge against Someshwar Mishra and Gauri Devi for<\/p>\n
offence under Section 304B of the Penal Code and, hence, they are<\/p>\n
acquitted.\n<\/p>\n
              30. However, the prosecution has been able to prove the<\/p>\n
charge levelled against Pramod Mishra beyond reasonable doubt and,<\/p>\n
hence, the conviction and sentenced recorded against Pramod Mishra is
\n                             23<\/span><\/p>\n
hereby maintained.\n<\/p>\n
            31. Cr. Appeal (S.J.) No. 164 of 1995 is allowed and Cr.<\/p>\n
Appeal (S.J.) No. 215 of 1995 is hereby dismissed.\n<\/p>\n<\/p>\n
                                 ( Gopal Prasad, J. )<\/p>\n
The Patna High Court,
\nThe 29th day of September 2011,
\nA.F.R.,
\nS.A.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Pramod @ Parmod Mishra vs State Of Bihar on 29 September, 2011 Author: Gopal Prasad 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-120261","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nPramod @ Parmod Mishra vs State Of Bihar on 29 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pramod-parmod-mishra-vs-state-of-bihar-on-29-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pramod @ Parmod Mishra vs State Of Bihar on 29 September, 2011 - 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