{"id":6706,"date":"1996-12-10T00:00:00","date_gmt":"1996-12-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balram-prasad-agrawal-vs-the-state-of-bihar-ors-on-10-december-1996"},"modified":"2016-10-22T19:49:54","modified_gmt":"2016-10-22T14:19:54","slug":"balram-prasad-agrawal-vs-the-state-of-bihar-ors-on-10-december-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balram-prasad-agrawal-vs-the-state-of-bihar-ors-on-10-december-1996","title":{"rendered":"Balram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996<\/div>\n
Author: S Majmudar<\/div>\n
Bench: G.N. Ray, S.B. Majmudar<\/div>\n
           PETITIONER:\nBALRAM PRASAD AGRAWAL\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR & ORS.\n\nDATE OF JUDGMENT:\t10\/12\/1996\n\nBENCH:\nG.N. RAY, S.B. MAJMUDAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 10TH DAY OF DECEMBER, 1996
\nPresent:\n<\/p>\n
\t\tHon’ble Mr. Justice G.N. Ray
\n\t\tHon’ble Mr. Justice S.B. Majmudar
\n     S.B. Sanyal,  Sr. Adv.,  Gopal Prasad  and K.  Pandeya,
\nAdvs. with him for the appellant
\n     B.B. Singh,  Adv. (NP),  and Anjani Kumar Jha, Adv. for
\nthe Respondents.\n<\/p><\/blockquote>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\n     S.B. Majmudar, J.<\/p><\/blockquote>\n
     In this  appeal by\t special leave\tunder Article 136 of
\nthe Constitution of India the appellant-original complainant
\nhas brought  in challenge the order of acquittal rendered by
\nthe Additional Judicial Commissioner, Lohardagga in Sessions
\nTrial case  against the\t respondent-accused and as confirmed
\nin Criminal  Revision Application  No.10 of 1992 by the High
\nCourt of  Patna, Ranchi\t Banch. While granting special leave
\nto appeal  a Bench  of two  learned judges  of this Court by
\norder dated  25th March 1996 rejected special leave petition
\nagainst respondent  no.4-original accused  no.2\t Smt.  Jhalo
\nDevi, mother-in-law  of the deceased while special leave was
\ngranted only  against respondent  nos.1, 2 and 3 who are the
\nState of Bihar and original accused nos.1 and 3 respectively
\nof the deceased Kiran Devi.\n<\/p>\n
     In this  case a  tragic fate  visited a  young  married
\nwoman aged  28 years  named  Kiran  Devi,  daughter  of\t the
\nappellant-complainant, who  is alleged to have been murdered
\nby the\trespondent-accused or  to have been forced to commit
\nsuicide by  falling in\ta well\tsituated on the back side of
\nthe house of the accused.\n<\/p>\n
     A few  facts leading to these proceedings deserve to be
\nnoted\tat the\toutset. Deceased  Kiran Devi  was married to
\nrespondent no.2 Paran Prasad Agrawal in the year 1977. It is
\nthe case  of the  prosecution that  even after\tfive to\t six
\nyears of  her marriage as no child was born respondent no.4,
\nthe mother-in-law  of the  deceased against  whose acquittal
\nthe present proceedings do not survive, and respondent no.3,
\nthe elder  brother of  the husband  of the  deceased  wanted
\naccused no.1-respondent\t no.2 to  marry some  other girl  by
\nkilling\t Kiran\t Devi.\tIt   is\t the  further  case  of\t the
\ncomplainant father  of the  deceased that he got her treated
\nby a  gynaeoologist and\t subsequently she  gave birth to two
\nsons. It  is alleged  that despite  the aforesaid events the
\ncruelty meted put to Kiran Devi did not stop. They persisted
\nin demanding  dowry and\t as Kiran  Devi did not fulfil their
\nrequirement the\t accused started  beating her physically and
\nused to\t torture her  causing danger to her life. That being
\ntired to  the torture meted out to her she had earlier tried
\nto jump\t in the\t same well about four years ago. But she was
\nsaved by  the neighbours.  In this regard Kiran Devi herself
\nhad made  a  report  before  the  concerned  Police  Station
\nagainst her  husband  and  in-laws.  Thereafter\t Kiran\tDevi
\nstarted living at her paternal home. However at the instance
\nof her\tfather, a  compromise was  made with her husband and
\nin-laws and  she was  brought to the house of her in-laws in
\nthe year  1988 where  she started to reside till the date of
\nher tragio  death. It  is the  prosecution case\t that on the
\nfateful night  intervening 30th\t and 31st  October  1988  at
\nabout 9.00  a.m. Kiran Devi fall in the wall situated in the
\nbackyard of  the house\tof her in-laws which was occupied by
\nall the\t three accused\talong with her. That on 31st October
\n1988  at  about\t 10.00\ta.m.  her  husband  respondent\tno.2
\ninformed the appellant that his daughter Kiran Devi had died
\nafter falling  in the  well. Thereupon the appellant want to
\nthe house of her in-laws where he found the dead body of his
\ndaughter lying near the well. That he got shock of his life.
\nThereafter he  visited the  house of  the  accused  on\t12th
\nNovember 1988 in order to meet his grandson. At that time he
\nwas informed by the neighbours that on the previous night of
\nthe date of the occurrence there was quarrel in the house of
\nthe accused  and they  had heard  the crying  and weeping of
\nKiran Devi  and she  was being\tassaulted  by  her  in-laws.
\nSmelling a  rat, on  this information  the appellant  lodged
\nwritten report\/First  Information Report  on  12th  November
\n1988 about murder of his daughter Kiran Devi by the accused.
\nit is  his case\t that no  case was  registered by the police
\nagainst the  accused as\t approval of  the Superintendent  of
\nPolice had  to be  obtained. Ultimately\t on the complaint of
\nthe appellant  before the  Superintendent of Police the case
\nwas ordered  to be  registered on  18th January\t 1989. After
\ninvestigation  the   police  submitted\t chargesheet   under
\nSections 498-A,\t 302 and  120-B of  the\t Indian\t Penal\tCode
\n(`IPC’ for  short) against  the respondent-accused  and\t the
\nacquitted accused  mother-in-law of  the deceased before the
\nlearned Chief  Judicial Magistrate,  Lohardagga.  Ultimately
\nthe pass was committed to the Court of Sessions, namely, the
\nAdditional Judicial  Commissioner, Lohardagga.\tThe  learned
\nTrial Judge framed charges against the accused under Section
\n302 read  with Section\t34, IPC.  On the  completion of\t the
\ntrial the  learned Judge  came to  the conclusion  that\t the
\nprosecution had not made out any base under Section 302 read
\nwith Section  34, IPC against the accused. The learned Judge
\nin terms  held that  there was\tevidence on  record that the
\nmembers of  the family\tof the\taccused Paran Prasad Agrawal
\nused to\t assault the  victim lady  Kiran Devi  and they also
\nused to demand dowry from her and there had also been threat
\ngiven by  these accused\t persons to  the victim,  that\tthey
\nwould kill  the victim\tlady  and  would  get  Paran  Prasad
\nAgrawal married\t to another  lady. But\tas the\tmarriage  of
\nKiran Devi took place in the year 1977 and murder took place
\nin the\tyear 1988,  and\t thus  more  than  seven  years\t had
\nelapsed, the  presumption that\tKiran Devi  might have\tbeen
\nkilled for  the sake  of dowry cannot be raised. The learned
\nJudge further  held that  he had  no doubt in this mind that
\nthese accused persons committed murder of Kiran Devi because
\nof the threat being extended by them but in view of the fact
\nthat there  was no  legal evidence  he was  helpless and  he
\ncould not convict these accused persons and the charges fell
\nto the\tground. The appellant carried the matter in revision
\nbefore the  High Court.\t A learned  Single Judge of the High
\nCourt who  decided the\tRevision  Application  came  to\t the
\nconclusion that no case was made out for him to interfere of
\nravisional proceedings\tagainst the  accused as there was no
\nevidence to  show that\tthe accused were responsible for the
\nmurder of Kiran Devi.\n<\/p>\n
     Learned senior  counsel for  the appellant\t Shri Banyal
\nvehemently contended  that both\t the courts below had failed
\nto appreciate  the well\t established fact on the record that
\ndeceased Kiran\tDevi had  suffered a  consistent  course  of
\ncruel conduct  on the  park of\tthe accused.  That  she\t had
\nearlier tried  to commit suicide by jumping in the same well
\nbut she\t was saved  by the neighbours. That the accused were
\ntorturing her  and treating  her with extreme cruelty. Under
\nthese circumstances  even though  there may not be any clear
\nevidence against  the accused  regarding their\tovert act of
\nthrowing her  in the  well on  that fateful  night,  it\t can
\neasily be  seen that  at least\tshe  was  forced  to  commit
\nsuicide because\t of the\t cruelty meted\tout to\ther  by\t the
\naccused and evidence of the appellant in this behalf relying
\nupon what  the neighbours  told him as to what transpired in
\nthe household  of the  accused\ton  that  fateful  night  as
\ncorroborated  by   the\tevidence  of  investigating  officer
\nclearly established  the lessar\t charge against\t the accused
\nunder Section  498-a of\t the IPC  and even though the police
\nhad charge  sheeted the accused also under Section 498-A the
\nlearned Sessions  Judge had  wrongly failed  to\t frame\tthis
\nalternative  charge  against  the  accused.  He,  therefore,
\nsubmitted that either the matter be remanded for fresh trial
\nor this Court in exercise of its powers under Article 142 of
\nthe Constitution of India may go into the evidence on record
\nand take  appropriate decision\tabout the culpability of the
\nrespondent-accused for the offence under Section 498-A, IPC.\n<\/p>\n
     Learned counsel  for the  respondents on the other hand
\nsubmitted that\tthough there  was  no  charge  framed  under
\nSection 498-A,\tIPC and\t as the\t prosecution  evidence\tfell
\nshort of  bringing home\t the charge  under Section  302 read
\nwith Section  34, IPC  against\tthe  accused  the  order  of
\nacquittal as rendered by the Trial Court and as confirmed in
\nrevision by  the  High\tCourt  deserves\t to  be\t upheld.  He
\nhowever, fairly\t stated that  if this  Court  comes  to\t the
\nconclusion that\t the accused  are required to be called upon
\nto meet\t the lesser charge under Section 498-A, IPC then the
\naccused may  be charged\t accordingly. He also submitted that
\nif this\t Court is  inclined to\tappreciate the\tevidence  on
\nrecord and take decision on merits on the culpability of the
\naccused so  far as offence under Section 498-A is concerned,
\nthen according\tto him\tthe evidence  does not\tconnect\t the
\naccused with  the said\toffence. That  there was  nothing on
\nrecord to  show that the complainant was informed about what
\nhappened on  the   fateful night  by the  neighbours as\t the
\nneighbours who\twere examined  in the  case  as\t prosecution
\nwitnesses  had\tturned\thostile\t and  did  not\tsupport\t the
\nprosecution regarding  what they were alleged to have stated
\nin their  police statements and to the complainant about the
\nincident of quarrel that took place on the fateful night. He
\nsubmitted  that\t what  the  complainant\t deposed  about\t the
\ninformation gathered  by him  from the neighbours was purely
\nhearsay evidence  and could  not be  legally relied upon. It
\nwas contended  by him  that once  that evidence is ruled out
\nnothing remains\t on the\t record to  show as to what actually
\nhappened on  the night of the incident which resulted in the
\ndrowning of  deceased Kiran  Devi in  the well\tand that  it
\ncould be  a case of sheer accident or even assuming that she
\nhad committed  suicide there  was nothing  to show  that the
\naccused were  responsible for  the said\t suicide or  had  by
\ntheir willful conduct driven Kiran Devi to commit suicide on
\nthat fateful  night. He,  therefore, contended\tthat in\t the
\nlight of  the evidence available on record even charge under
\nSection 498-A is not brought home to the accused.\n<\/p>\n
     Having given  our anxious\tconsideration to these rival
\ncontentions  we\t  have\treached\t  the  conclusion  that\t the
\nprosecution has\t not been  able to make out any case against
\nthe respondent-accused\tunder Section  302 read with Section
\n34, IPC.  There is  no evidence to show that on that fateful
\nnight the  accused or  anyone of  them had  pushed or thrown
\nKiran Devi  in the  well. But  that is\tnot the\t end of\t the
\nmatter. As  rightly contended  by learned senior counsel for
\nthe appellant  the evidence on record clearly indicated that
\na case was made out against the accused under Section 498-A,
\nIPC. The said provision reads as under:\n<\/p>\n
     “498-A.  Husband\tor  relative  of
\n     husband of\t a woman  subjection her
\n     to\t cruelty.   Whoever,  being  the
\n     husband  or  the  relative\t of  the
\n     husband of\t a woman,  subjects such
\n     woman to  cruelty shall be punished
\n     with imprisonment\tfor a term which
\n     may extend to three years and shall
\n     also be liable to fine.\n<\/p><\/blockquote>\n
     Explanation-For  the   purposes  of
\n     this section. “cruelty” means-\n<\/p><\/blockquote>\n
     (a) any willful conduct which is of
\n     such a nature as is likely to drive
\n     the woman\tto commit  suicide or to
\n     cause grave  injury  or  danger  to
\n     life,  limb   or  health\t(whether
\n     mental or\tphysical) of  the woman;
\n     or\n<\/p><\/blockquote>\n
     (b) harassment  of the  woman where
\n     such harassment  is with  a view to
\n     coercing her  or any person related
\n     to her  to meet any unlawful demand
\n     for  any\tproperty   or\tvaluable
\n     security  or   is\ton   account  of
\n     failure  by   her\tor   any  person
\n     related  to   her\tto   meet   such
\n     demand.”<\/p><\/blockquote>\n
     Now it  is\t of  course  true  that\t though\t police\t had
\nchargesheet the\t accused also  alternatively  under  Section
\n498-A the  Trial Court framed charge under Section 302 which
\nis obviously  for a  graver offence and did not think it fit
\nto frame  any charge  under  Section  498-A,  IPC.  But\t the
\nevidence on  record, as we will presently point out, clearly
\nattracted the  said charge.  Under  these  circumstances  we
\nwould have been required to remand these proceedings for re-
\ntrial on the available evidence after framing a charge under
\nSection\t 499-A\t against  the  respondent-accused  but\tthat
\nexercise is not required in view of the fact that this Court
\nin exercise  of powers under Article 142 of the Constitution
\nof India  may itself  examine the question of culpability of
\nthe accused  for the  offence under  the said Section in the
\nlight of the evidence on record so as to obviate protraction
\nof  trial   and\t multiplicity  of  proceedings\tagainst\t the
\naccused.\n<\/p>\n
     We have,  therefore, though  it  fit  to  consider\t the
\nquestion of  the culpability  of the  respondent-accused for
\noffence under  Section 498-A  of IPC. It is now well settled
\nthat in\t exercise of  powers under  Article 142, appropriate
\norders can  be passed  in the  interest of  justice in cases
\nwhich are  brought before  this Court [See E.K. Chandrasenan
\nv. State  of Kerala<\/a>  (1995) 2  SCC 99].\t We have accordingly
\nheard the  learned counsel for the parties on this question.
\nWe have\t been taken  thought the  relevant evidence  on\t the
\nrecord. Having carefully gone through the evidence on record
\nwe find that the prosecution has been able to bring home the
\nguilt of the accused under Section 498-A, IPC.\n<\/p>\n
     In this connection we may refer to relevant evidence on
\nrecord. The  appellant as  P.W.S. had stated on path that on
\n31st October  1988 at 10.00 a.m. he was informed by his son-
\nin-law Paran Prasad Agrawal that his daughter had died after
\nfalling into  the well\tand he\taccordingly went on the site
\nand saw\t her dead  body. He had further deposed that on 12th
\nNovember 1988 he went again to the house of the accused son-
\nin-law to  see his  youngest grandson  and at  that time  he
\nenquired of  the incident from the neighbors residing in the
\nMohalla and his neighbors told him that on previous night of
\nthe incident  Kiran Devi  was beaten  by  her  mother-in-law
\nJhala Devi,  Paran Prasad  and the  elder brother  of  Paran
\nPrasad and  Kiran Devi\twas shouting  `Bachao Bachao’  `save
\nsave’ and they also told that the mother-in-law, husband and
\nelder brother  of the  husband of  Kiran Devi, Girbar Prasad
\nwere telling  that they would perform the second marriage of
\nParan Prasad  after killing her and were threatening to kill
\nher and this fact was told to him by the neighbours, namely,
\nShiv Nath,  P.W.4, Laxmi  Mahto, P.W.3\tand others,  namely,
\nBirendra Prasad\t etc. He  also stated  that  in\t his  police
\ncomplaint he had also given the names of these witnesses who
\ninformed  him  accordingly,  namely,  Ajay  Mittal,  Avdhesh
\nPrasad, Shiv Nath Mahto, Laxmi Mahto and Birendra Prasad. He
\nhad also  deposed  about  the  suffering  undergone  by\t his
\ndaughter at  the hands\tof the\taccused in  past  after\t her
\nmarriage. That his daughter Kiran Devi and informed him that
\nher husband  used to  ask her to bring money from him and on
\nthis he\t replied that he had already given Rs. 10,000\/-. She
\nalso used  to say  that her  husband  Paran  Prasad,  Cirbar
\nPrasad and  mother-in-law Jhalo\t Devi used  to beat her. The
\nmarriage of  his daughter  was soiamnized  in the year 1977.
\nFor 5-6\t years there was no issue from her and hence her in-
\nlaws started  abusing  her  and\t wanted\t to  make  a  second
\nmarriage of  Paran Prasad.  He got  Kiran  Devi\t treated  at
\nRanchi and  consequently she  gave birth  to two sons. About
\nfour years  prior to  this incident  his daughter Kiran Devi
\ndue to\tthe atrocities\tof her\tin-laws had  jumped into the
\nsame well.  However the neighbours had saved her. That after
\nbirth of her youngest son she started living at his house as
\nhis son-in-law\twas not\t taking her  back. That\t he sent his
\ndaughter to  her in-laws’ house after convincing his son-in-
\nlaw. In\t cross examination  he stood by his version that the
\npeople of  the Mohalla\ttold him  that on  the fateful night
\nthey had  personally heard  the sound  of quarrel  and\tthat
\nthreat to kill her. He also reiterated what he stated before
\nthe police  in this  connection. He  proved two\t post  cards
\nwhich he  had received when his daughter was pregnant and in
\nthese post  cards he  was informed  that his  son-in-law was
\ntrying to  get married to one Lalo Devi. Nothing substantial
\ncould be  brought out  in his cross examination to discredit
\nhis aforesaid version. This version is fully corroborated by
\nthe evidence  of P.W.8\tKedar Nath Pathak, the investigating
\nOfficer. The  aforesaid evidence  of the  appellant  clearly
\nestablished  the   sufferings  undergone   by  his  daughter
\ndeceased Kiran\tDevi at\t the hands  of the  accused and\t the
\nsituation had  so worsened  that she  had  tried  to  commit
\nsuicide even  earlier and  was saved  by the neighbours. His
\nevidence about\twhat his  deceased daughter told him earlier
\nabout her sufferings at the hands of the accused was clearly
\nadmissible  under  Section  22\tof  the\t Evidence  Act.\t His
\nevidence  further  shows  that\tthe  cruel  conduct  of\t the
\nrespondent-accused  did\t not  abate  and  appeared  to\thave
\ncontinued till\tthe fateful  night when the situation became
\nunbearable to the deceased which resulted in her unfortunate
\ndeath by  drowning in the well in the courtyard of the house
\nof the\taccused. it  is necessary to appreciate that on that
\nfateful night apart from the victim only the accused ware in
\nthe house.  Thus what happened on that night and what led to
\nthe deceased  failing in the well would be wholly within the
\npersonal and special knowledge of the accused. But they kept
\nmum on\tthis aspect.  It is of course true that burden is on
\nthe prosecution\t to prove  the case beyond reasonable doubt.
\nBut also  the prosecution  is found  to have  shown that the
\naccused were guilty of persistent conduct of cruelty qus the
\ndeceased spreed\t over years  as is well established from the
\nunshaken testimony  of P.W.6,  father of  the deceased girl,
\nthe facts  which were  in  the\tpersonal  knowledge  of\t the
\naccused who  were present in the house on that fateful night
\ncould have been revealed by them to disprove the prosecution
\ncase. This  burden under  Section 109 of the Indian Evidence
\nAct is\tnot discharged\tby them.  In this  connection we may
\nusefully refer to some of the decisions of this Court on the
\npoint. In  the case  of Shambhu\t Nath Mehra  v. The State of
\nAjmer AIR<\/a>  1956 SC  404 Bose,  J. speaking  for a two member
\nBench referring\t to the\t applicability to Section 106 of the
\nEvidence  Act\tto  criminal   prosecutions  laid   down  in
\nparagraphs 10 and 11 of the Report as under:\n<\/p>\n
     “(10) Section  106 is  an exception
\n     to S.101. Section 101 lays down the
\n     general rule  about the  burden  of
\n     proof.<\/p><\/blockquote>\n
     `Whoever desires  any Court to give
\n     judgment as  to any  legal right or
\n     liability\t  dependent    on    the
\n     existence\t of   facts   which   he
\n     asserts,  must   prove  that  those
\n     facts exist’.\n<\/p><\/blockquote>\n
     Illustration (a) says-\n<\/p><\/blockquote>\n
     `A desires a Court to give judgment
\n     that B shall be punished for a
\n     crime which A says B has committed.
\n     A must  prove that\t B has committed
\n     the crime’.\n<\/p><\/blockquote>\n
     (11) This\tlays  down  the\t general
\n     rule that\tin a  criminal case  the
\n     burden   of   proof   is\ton   the
\n     prosecution and  S.106 is certainly
\n     not intended  to relieve it of that
\n     duty.  On\t the  contrary,\t  it  is
\n     designed\t to\tmeet\t certain
\n     exceptional cases in which it would
\n     be\t impossible,   or  at  any  rate
\n     disproportionately\t difficult,  for
\n     the prosecution  to establish facts
\n     which are\t`especially’ within  the
\n     knowledge of  the accused and which
\n     he could  prove without  difficulty
\n     or inconvenience.”\n<\/p><\/blockquote>\n
     In the  case of  Collector of Customs, Madras & Ors. v.\n<\/p><\/blockquote>\n
D. Bhoormull  AIR 1974\tSC 850\tanother Bench of two learned
\njudges of this Court while considering the offence under Sea
\nCustoms Act,  1878 earmarked the scope of Section 106 of the
\nEvidence Act  in the following terms in paragraphs 31 and 32
\nof the Report:\n<\/p>\n
     “31. The  other cardinal  principle
\n     having an\timportant bearing on the
\n     incidence of  burden  of  proof  is
\n     that sufficiency  and weight of the
\n     evidence is  to be\t considered – to
\n     use the  words of Lord Mansfield in
\n     Blatch v.\tArchar (1774)  1 Cowp 63
\n     at p.65  `according  to  the  proof
\n     which it  was in  the power  of one
\n     side to  prove, and in the power of
\n     the  other\t to  have  contradicted.
\n     Since it is  exceedingly difficult,
\n     if not  absolutely\t impossible  for
\n     the  prosecution\tto  prove  facts
\n     which  are\t especially  within  the
\n     knowledge of  the opponent\t or  the
\n     accused, it is not obliged to prove
\n     them as part of its primary burden.<\/p><\/blockquote>\n
     32.   Smuggling\tis   clandestine
\n     conveying of  goods to  avoid legal
\n     duties. Secrecy  and stealth  being
\n     its   covering    guards,\t it   is
\n     impossible\t  for\tthe   Preventive
\n     Department to unravel every link of
\n     the process. Many facts relating to
\n     this illicit business remain in the
\n     special or\t peculiar  knowledge  of
\n     the person\t concerned in it. On the
\n     principle underlying  Section  106,
\n     Evidence\tAct,   the   burden   to
\n     establish those  facts is\tcast  on
\n     the  person  concerned  and  if  he
\n     fails to establish or explain those
\n     facts,  an\t  adverse  inference  of
\n     facts may\tarise against  him which
\n     coupled   with    the   presumptive
\n     evidence adduced by the prosecution
\n     or the  Department would  rebut the
\n     initial presumption of innocence in
\n     favour of\tthat person,  and in the
\n     result prove him guilty. As pointed
\n     out by  Best in  `Law of  Evidence’
\n     (12th Edn.\t Article 320, page 291),
\n     the “presumption  of innocence  is,
\n     no doubt,\tpresumption juris`:  but
\n     every day’s  practice shows that it
\n     may be  successfully encountered by
\n     the presumption  of  guilt\t arising
\n     from      recent\t   (unexplained)
\n     possession\t of   stolen  property”,
\n     though  the   latter  is\tonly   a
\n     presumption  of   fact.  Thus   the
\n     burden on\tthe prosecution\t or  the
\n     Department\t may   be   considerably
\n     lightened even  by such presumption
\n     of fact  arising in  their\t favour.
\n     However, this  does not  mean  that
\n     the special  or peculiar  knowledge
\n     of\t the  person  proceeded\t against
\n     will relieve the prosecution or the
\n     Department\t all   together\t of  the
\n     burden of\tproducing some\tevidence
\n     in respect\t of that  fact in issue.
\n     It will  only alleviate that burden
\n     to\t discharge   which  very  slight
\n     evidence may suffice.”\n<\/p><\/blockquote>\n
     On the  other  hand  the  evidence\t of  the  appellant-\n<\/p><\/blockquote>\n
complainant which  had stood  the test\tof cross-examination
\nhas clearly  established the  culpability of  the accused so
\nfar as\ttheir wilful conduct of cruelty against the deceased
\nis concerned.  it is  true that what happened on the fateful
\nnight was  said to  have been conveyed to the complainant by
\nwitness Shiv  Nath Mahto,  P.W.4,  Laxmi  Mahto,  P.W.3\t and
\nothers who have all turned hostile.\n<\/p>\n
     It was  submitted by  learned senior  counsel  for\t the
\nappellant that\twhat was  deposed to  by the  witness  P.W.6
\nwould not  remain in  the realm of hearsay evidence as these
\ninformants have been examined as witnesses. It was contended
\nby him that before any oral version of a witness can be said
\nto be  hearsay it mus amount to statement of oral version of
\nthe witness  based on  what he heard from others who are not
\nbefore the court. In other words the witness says about what
\nhe heard  from outsiders.  Section 60 of the Indian Evidence
\nAct lays  down that  oral evidence  must be  direct.  If  it
\nrefers to  a fact  which could\tbe heard,  it  must  be\t the
\nevidence of  a witness\twho says  he heard  it. The evidence
\nbefore\tthe   court  can   be  divided\t into  original\t and
\nunoriginal. The\t original is  that which  a witness  reports
\nhimself to  have seen or heard through the medium of his own
\nsenses. Unoriginal,  also  called  derivative,\ttransmitted,
\nsecondhand or  hearsay, is  that which\ta witness  is merely
\nreporting not  what he\thimself saw  or heard,\tnot what has
\ncome under  the immediate  observation\tof  his\t own  bodily
\nsenses, but  what he  had learnt respecting the fact through
\nthe medium  of a  third person. Hearsay, therefore, properly
\nspeaking  is  secondary\t evidence  of  any  oral  statement.
\nLearned senior\tcounsel for  the appellant submitted that if
\nthe informants\tare examined  as witnesses as in the present
\ncase, the objection to hearsay disappears as then it becomes
\nthe original  evidence of  the informant  who can  be cross-
\nexamined about\tthe truth  of his  information\tconveyed  to
\nP.W.6 and  in such an eventuality the versions deposed to by
\nP.W.6 and  the informants  will fall  for scrutiny  and will
\nhave to\t be weighed by the court with a view to ascertaining
\nas to  which of\t the versions  on bath\tis a correct one. In
\nthis connection we were referred to a decision of this Court
\nin the\tcase of\t Bhugdomal Gangaram & Ors. etc. v. The State
\nof Gujarat  AIR 1993 SC 906 wherein at page Q10 Varadarajan,
\nJ. speaking  for a two member Bench dealing with evidence of
\nP.W.12 about  what was\tinformed to  him made  the following
\npertinent observations in paragraph 13 of the Report:\n<\/p>\n
     “Accused Nos.  3 and  5  have  been
\n     convicted\tby  the\t learned  single
\n     Judge under Section 66(1)(b) of the
\n     Act. The  prosecution relies on the
\n     evidence of P.W.12 to show that the
\n     had  received  information\t in  the
\n     evening  of   12-9-1970  that  from
\n     Baroda the\t truck GTD 4098 would be
\n     carrying liquor  to  Ahmedabad  and
\n     that accused  Nos. 3 and 4 and some
\n     other persons  would be coming in a
\n     taxi behind  the truck.  But  since
\n     the informant has not been examined
\n     as a witness the evidence of P.W.12
\n     that he  was informed  that accused
\n     Nos.3 and\t4 would be coming behind
\n     the  truck\t  in  a\t  taxi\tis   not
\n     admissible.”<\/p><\/blockquote>\n
     It was, therefore, submitted that what is deposed to by
\na witness  about the  information conveyed to him by another
\nwould remain  hearsay unless  the author of this information
\nalso is\t examined in  the case\tand is\tsubjected  to  cross
\nexamination. In\t the latter  contingency  the  objection  of
\nhearsay would disappear and the court will have to weigh the
\nrelative merits\t and demerits  of  the\trespective  versions
\ndeposed to  by the  concerned witnesses,  one  affirming  an
\ninformation and\t another denying the same. On the other hand
\nit was\tsubmitted on  behalf of\t respondent-accused that  as
\ninformants P.W.3  and P.W.4  had turned\t hostile, version of
\ntheir alleged  information to P.W.S and the details thereof,
\nwill remain in the realm of hearsay evidence as they had not
\nasserted about\tsuch information  in their  examinations-in-
\nchief. We find prima facie some force in what learned senior
\ncounsel for  the appellant  submitted  in  this\t connection.
\nHowever on the facts of the present case it is not necessary
\nto dilate  on this  aspect and to decide whether the details
\nof the\tinformation  said  to  have  been  conveyed  to\t the
\nappellant P.W.S by these hostile witnesses remained in realm
\nof hearsay  evidence or not. We will assume that contents of
\nthis  information   represented.  Still\t  as  will  be\tseen
\npresently,   their    are   clinching\tcircumstances\twell
\nestablished on\tthe record  by the prosecution which clearly
\nbring home  the charge\tunder  Section\t498-A,\tIPC  to\t the
\nrespondent-accused.\n<\/p>\n
     We now  proceed to\t narrate these\tcircumstances. It is
\nnow well  settled that even evidence of hostile witness also
\nto the extent it corroborates the prosecution version can be
\nrelled upon (Khujji alias Surendra Tiwari v. State of Madhya
\nPradesh\t AIR<\/a>   1991  SC\t  1853\tand   Sat  Paul\t  v.   Delhi
\nAdministration AIR<\/a>  1976 SC 2941. Witness Laxmi Mahto, P.W.3
\nin his\tchief examination  before the  court stated  that he
\nheard in the night of the incident sound of quarrel from the
\nhouse  of  Paran  Prasad  Agrawal  (accused-husband  of\t the
\ndeceased). A  fight was\t going on  inside the  house and the
\nsaid hullah was of the same. At around 1.00-1.30 a.m. in the
\nnight he  heard the said hullah. That was a sound of a woman
\nbut he\tcould not  say whose voice was that. This version of
\nhis  in\t the  examination-in-chief  lands  predance  to\t the
\nversion deposed\t to  by\t the  complainant  P.W.6  and  fully
\nsupports his  case about  what the  witness is\tsaid to have
\nconveyed to the complainant when he met him on 12th November
\n1988. So  far as the evidence of hostile witnesses Shiv Nath
\nMahto, P.W.4,  Laxmi Mahto,  P.W.3 as  well as\tAjay Mittal,
\nP.W.2 is  concerned it\tbecomes clear that they have reslled
\nfrom  their   original\tversions  before  the  Investigating
\nOfficer with  a view  to help  their neighbours\t the present
\naccused and their contrary versions on oath before the court
\nwere clearly unreliable and false ones. We would, therefore,
\nreject their  versions and  on the  contrary rely  upon\t the
\nnatural version of P.W.6, complainant whose evidence appears
\nto  be\t more  reliable\t and  creditworthy  and\t which\tgets
\ncorroborated even  by the evidence of hostile witness P.W.3.
\nWe may\talso note  that even  if the  nature of\t information
\nalleged to  be conveyed\t to P.W.6 the father of the deceased
\nby the\tneighbours about  what was actually heard by them on
\nthat fateful  night may\t be ruled  out as  hearsay, the fact
\nthat some  information was conveyed to him by the neighbours
\non 12th\t November 1988\twhich prompted him to rush to police
\nas he  entertained grave  doubt on  the basis  of  what\t was
\nconveyed to  him by  neighbours about  the  conduct  of\t the
\naccused on  that night\tand which  made him  apprehend about
\ntheir culpability  in connection with unnatural death of his
\ndaughter, would remain admissible in evidence as the conduct
\nof  this  witness  P.W.6  propelled  by\t the  fact  of\tsuch
\ninformation by neighbours about what the witness did on 12th
\nNovember 1988  and not\tearlier by  approaching police. That
\npart of\t his evidence  was not\tshaken in cross examination.
\nNot only that but even the hostile witnesses P.W.3 and 4 who
\nare alleged  to have  given some  information to the witness
\nP.W.6 on 12th November 1988 had not even whispered either in
\ntheir chief examination or cross examination about their not
\nhaving conveyed\t any information  or not having met P.W.6 on
\n12th November  1988 as\tdeposed to by P.W.6 in his evidence.
\nThis part  of the  evidence of P.W.6 would not be hit by the
\nrule of\t exclusion of  hearsay evidence.  A decision of this
\nCourt deserves\tto be  noted on\t this aspect. In the case of
\nJ.D. Jain  v. The  Management of  State Bank of India & Anr.
\nAIR<\/a> 1982  SC 673  a Bench  of three  learned Judges speaking
\nthrough Baharul\t Islam, J. in paragraph 10 of the Report has
\nmade the following pertinent observations:\n<\/p>\n
     “The  word\t `hearsay’  is\tused  in
\n     various senses.  Sometimes it means
\n     whatever a\t person is heard to say;
\n     sometimes\tit   means  whatever   a
\n     person  declares\ton   information
\n     given by someone else. (See Stephen
\n     of Law of Evidence).\n<\/p><\/blockquote>\n
     The Privy\tCouncil in  the case  of
\n     Subramaniam v.  Public  Prosecutor,
\n     (1958)   1\t  WLR\t   observed:<\/p><\/blockquote>\n
     `Evidence of  a statement made to a
\n     witness who  is not  himself called
\n     as a  witness may\tor  may\t not  be
\n     hearsay.\tIt    is   hearsay   and
\n     inadmissible when the object of the
\n     evidence is  to establish the truth
\n     of\t what\tis  contained\tin   the
\n     statement. It is not hearsay and is
\n     admissible when  it is  proposed to
\n     establish by  the evidence, not the
\n     truth of the statement but the fact
\n     that it  was made. The fact that it
\n     was  made\t quite\tapart  from  its
\n     truth, is\tfrequently  relevant  in
\n     considering the  mental  state  and
\n     conduct thereafter\t of the\t witness
\n     on\t some  other  persons  in  whose
\n     presence\tthese\tstatements   are
\n     made’.”<\/p><\/blockquote>\n
     It is also to be appreciated that evidence of father of
\nthe deceased P.W.6 shows that his daughter’s married life in
\nthe household of the accused had undergone rough weather all
\nthroughout. She\t was illtreated\t both for not bringing dowry
\namount to  the satisfaction  of the accused and also for not
\ngiving birth  to children.  Accused no.1,  her husband, also
\nwas contemplating  to remarry  one Lalo Devi as letters Ex.4
\nand 4\/1\t showed. Complainant’s\tevidence further showed that
\nhis deceased  daughter had  earlier tried  to commit suicide
\nbut was\t saved in the nick of time by neighbours. Even after
\nbirth of two sons ill-treatment of his deceased daughter and
\nquarrels with  her  continued  till  the  fateful  night  as
\ndeposed to  by complainant P.W.6 and as corroborated by even
\nhostile witness\t P.W.3 as  seen earlier.  It can, therefore,
\nsafely be  presumed under  Section 114\tof the\tEvidence Act
\nthat the  cruel treatment  meted out  to the deceased by the
\naccused earlier\t had continued\tunabated till  the very last
\nwhen she was forced to commit suicide on that fateful night.
\nSuch a\tpresumption of\tcontinuanos of cruel treatment which
\nis established\ton record  necessarily\tpoints\tan  accusing
\nfinger to the accused. Such presumption under Section 114 of
\nthe Evidence  Act has remained unrebutted on record. This is
\nanother clinching  circumstance well established against the
\naccused. In  this connection we may refer to what this Court
\nsaid in two of its judgments. In Ambika Prasad Thakur & Ors.
\netc. v.\t Ram Ekbal Rai (Dead) by his L.Rs. and Ors. etc. AIR
\n1988 BC\t 906 a three member Bench of this Court referring to
\nillustration (d) of Section 114 of the Evidence Act has made
\nthe following  pertinent observations  in  para\t 15  of\t the
\nReport:\n<\/p>\n
     “If a thing or a state of things is
\n     shown to exist, an inference of its
\n     continuity\t within\t  a   reasonably
\n     proximate time  both  forwards  and
\n     backwards may  sometimes be  drawn.\n<\/p><\/blockquote>\n
     The    presumption\t    of\t  future
\n     continuance is noticed in illus.(d)
\n     to S.114.\tIn appropriate cases, an
\n     inference of  the continuity  of  a
\n     thing or  state of things backwards
\n     may be  drawn under  this\tsection,
\n     though on\tthis point  the\t section
\n     does   not\t   give\t   a\tseparate
\n     illustration.  The\t rule  that  the
\n     presumption  of   continuance   may
\n     operate  retorspectively  has  been
\n     recognised both  in India.\t This is
\n     rule of  evidence by  which one can
\n     presume the  continuity  of  things
\n     backwards.\t  The\tpresumption   of
\n     continuity weakens with the passage
\n     of time.  How far\tthe  presumption
\n     may be  drawn  both  backwards  and
\n     forwards depends upon the nature of
\n     the  thing\t  and  the   surrounding
\n     circumstances.”<\/p><\/blockquote>\n
     Another three  member Bench of this Bench of this Court
\nin the\tcase of\t Kali Ram  v. State  of Himachal Pradesh AIR<\/a>
\n1979 SC\t 2773 speaking\tthrough\t Khanna,  J.  has  made\t the
\nfollowing pertinent  observations in  paragraph\t 24  of\t the
\nReport:\n<\/p>\n
     “Leaving\taside\tthe   cases   of
\n     statutory presumption,  the onus is
\n     upon the  prosecution to  prove the
\n     different\t ingredients\tof   the
\n     offence and  unless  it  discharges
\n     that onus,\t the prosecution  cannot
\n     succeed. The  court may, of course,
\n     presume, as  mentioned  in\t Section
\n     114 of the Indian Evidence Act, the
\n     existence\tof  any\t fact  which  it
\n     thinks  likely  to\t have  happened,
\n     regard  being  had\t to  the  common
\n     course  of\t natural  events,  human
\n     conduct  and   public  and\t private
\n     business, in  their relation to the
\n     facts of  the particular  case. The
\n     illustration  mentioned   in   that
\n     section,\t though\t   taken    from
\n     different\t  spheres    of\t   human
\n     activity, are  not exhaustive. They
\n     are based upon human experience and
\n     have to  be applied  in the context
\n     of the  facts  of\teach  case.  The
\n     illustrations are\tmerely\texamples
\n     of circumstances  in which\t certain
\n     presumptions  may\tbe  made.  Other
\n     presumptions of a similar kind in a
\n     similar circumstances  can be  made
\n     under the provisions of the section
\n     itself.   Whether\t  or\tnot    a
\n     presumption can  be drawn under the
\n     section  in   a   particular   case
\n     depends ultimately\t upon the  facts
\n     and circumstances\tof each case. No
\n     hard and  fast  rule  can\tbe  laid
\n     down. Human behaviour is so complex
\n     that room\tmust be left for play in
\n     the joints.  It is\t not possible to
\n     formulate\t a   series   of   exact
\n     propositions  and\t confine   human
\n     behaviour within straitjackets. The
\n     raw  material   here  is\tfar  too
\n     complex  to   be\tsusceptible   of
\n     precise and  exact propositions for
\n     exactness here is a fake.”<\/p><\/blockquote>\n
     It must,  therefore, be  held that\t the prosecution had
\nfully established  its case  against the accused that on the
\nfateful night  between 30th  October and  31st October\t1988
\ndeceased Kiran\tDevi was subjected to cruelty by her mother-
\nin-law, her  husband accused  no.1  and\t his  elder  brother
\naccused no.3  which forced her to commit suicide. It is easy
\nto visualize  the unbearable  state of affairs on that night
\nwhen a\tyoung  housewife  having  two  minor  children,\t the
\nyounger only  four and\ta half\tyears of age, had to jump in
\nthe well  to end her miserable existence in the house of the
\naccused. Unless\t the torture to her had become unbearable in
\nthe common  course of  human conduct  such a young housewife
\nhaving commitments  to life could not have taken the drastic
\nstep to\t end her  life, leaving her infant sons in the lurch
\nand at\tthe mercy of the accused especially when her husband
\naccused no.1 was contemplating a re-marriage. As the Special
\nLeave Petition\tof accused  no.2. mother-in-law\t of deceased
\nKiran Devi has been dismissed we need not say anything about
\nher culpability.  However the aforesaid evidence clinchingly
\nestablished beyond   of\t reasonable doubt  that respondents,
\noriginal accused nos.1 and 3, by their wilful and parslatent
\nconduct of  cruelty on\tKiran Devi  had driven her to commit
\nsuicide by  jumping in\tthe well  in the  compound of  their
\nhouse. It  is not  possible to\tagree with the contention of
\nlearned counsel\t for the  respondents that  she\t might\thave
\naccidentally fallen  in the  well. It has to be kept in view
\nthat at\t 3.00 O’clock  in winter  night while  the  deceased
\nwould be  sleeping in  the house  there would  have been  no
\noccasion for  her to  go  in  the  back\t verandah  and\tfall
\naccidentally in the well which was 25 ft. away from the back
\ndoor of\t the house  as seen  from the  evidence of P.W.8 the
\nInvestigating  Officer.\t On  the  contrary  the\t prosecution
\nevidence clearly indicates beyond shadow of reasonable doubt
\nthat because  of the  mistreatment by  the accused  and\t the
\nconsistant course  of cruelty perpetrated on her, she had on
\nthe fateful  night suffered  from the  last straw that broke
\nthe camel’s back. Earlier she had jumped in the same well to
\nput and\t end to her miserable existence but was saved by the
\nneighbours. Yet\t the life  for her  in the  household of the
\naccused did  not improve  subsequently. She  was, therefore,
\ndriven to once again try to commit suicide by failing in the
\nvery same  well in  which she had earlier fallen. But on the
\nsecond occasion on that fateful night when she jumped in the
\nwell there  was no  neighbour to  save her  and her life got
\nextinguished. Under  these circumstances  it cannot  be said
\nthat the  accused were\tnot responsible\t for bringing  to  a
\ntragic and  the life  of this young housewife aged 28 years,
\nmother of  two children,  who  having  suffered\t in  such  a
\ndrastic manner\tat the\thands of  the accused  was driven to
\ntake the extreme step of committing suicide. This is neither
\nthe case  of murder nor the case of accident. But it is only
\nthe case of suicide for which the persistent hostile conduct
\nof the accused over years as deposed to by P.W.6 complainant
\nand also  the act  of cruelty  perpetrated  on\ther  on\t the
\nfateful night  as revealed by the aforesaid wall established
\nclinching circumstances,  were directly\t responsible. It  is
\nalso pertinent\tto note that the learned Trial Judge reached
\nthat conclusion\t in para  8 of\tthe judgment. However in his
\nview this  was no  a dowry  death as contemplated by Section
\n304-B, IPC  as the  deceased had  died more than seven years
\nafter her  marriage. But  unfortunately\t the  learned  Trial
\nJudge failed to examine alternative case under Section 498-A
\nwhich got  squarely attracted  on the  facts of\t the present
\ncase. It  must, therefore,  he held that on the facts of the
\npresent case  the prosecution has been able to bring home to
\nthe accused  beyond shadow of reasonable doubt offence under
\nSection 498-A,\tIPC read  with Explanation (a). When she was
\ndriven to take such a drastic step all the accused including
\nacquitted accused  mother-in-law were in the house and along
\nwith them  rasided the\tvictim and  her two  minor children.
\nHence the accused alone must be held responsible for driving
\nher to commit suicide by their misconduct which had led to a
\nquarrel and  shouting revealing\t the voice  of\ta  woman  as
\nadmitted even  by the  hostile witness\tP.W.3  who  actually
\nheard the  same being  the  next  door\tneighbour.  All\t the
\ncircumstances  proved\tby   the   prosecution\t clinchingly
\nestablish the  culpability of  the accused themselves and no
\none else.  These established  circumstances wholly  rule out
\nany reasonable\tpossibility of innocence of the accused from
\nany  viewpoint.\t  In  other   words   the   chain   in\t the
\ncircumstantial evidence\t is so\tcomplete against the accused
\nas to  rule out\t any other hypothesis about their innocence.
\nWe accordingly\tconvict respondent no.2 Paran Prasad Agrawal
\nand  respondent\t no.3  Girbar  Prasad  Agrawal\tof  offences
\npunishable under Section 498-A, IPC.\n<\/p>\n
     In view  of our  aforesaid\t finding  of  guilt  of\t the
\nconcerned respondent-accused  it will  now be  necessary  to
\nhear them  on the  question of\tappropriate sentence  to  be
\nimposed on  them. We,  therefore, give an opportunity to the
\nlearned counsel\t for the  respondent to\t have his say on the
\nquestion of  appropriate sentence  to be  imposed  on  these
\naccused after taking instructions from them. It will be open
\nto the learned counsel for the respondent-accused to furnish
\nmaterial  on  this  aspect  by\tway  of\t affidavits  of\t the
\nconcerned accused  if thought  fit. Accordingly\t the  matter
\nstands adjourned  to 17-1-97  for hearing the accused on the
\nquestion of sentence.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996 Author: S Majmudar Bench: G.N. Ray, S.B. Majmudar PETITIONER: BALRAM PRASAD AGRAWAL Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT: 10\/12\/1996 BENCH: G.N. RAY, S.B. MAJMUDAR ACT: HEADNOTE: JUDGMENT: THE 10TH DAY OF DECEMBER, […]<\/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":[30],"tags":[],"class_list":["post-6706","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996 - 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\/balram-prasad-agrawal-vs-the-state-of-bihar-ors-on-10-december-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996 - 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