Cav:

(Per: Honourable Mr. Justice Anil Kumar Sinha)

1. The present appeal has been preferred against the judgment of conviction, dated 07.07.1995 and the order of sentence, dated 13.07.1995, passed by learned 1st Additional Sessions Judge, Madhubani, in Sessions Trial No. 05 of 1983/90 of 1985, arising out of Basopatti Police Station Case No. 41 of 1981, whereby the sole surviving appellant, namely, Uttim Sah, was convicted for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code. For the conviction under Section 302 of the Indian Penal Code, the appellant has been convicted for life imprisonment and for the conviction under Section 201 of the Indian Penal Code, the appellant has been convicted to undergo rigorous imprisonment for seven years.

2. The prosecution case, as unfolded in the written report lodged by the informant, Ramdev Sah (PW 7), is that in the morning of 05.06.1981, at about 8 AM, when he went to the matrimonial home of his daughter at Village Parsa, the co-villagers of the appellant, namely, Halkori Sah, Jugul Lal Yadav and Mahendra Sah, informed him that his daughter had been killed in the previous night at 9 PM and her body had been burnt.

3. The informant alleged that on the preceding Monday, the son-in-law of the informant, Uttim Sah, had left her daughter in village Vishol after assaulting her, and that information was received by Ramji Sahu, who brought her to her parental home. Thereafter, the informant, along with her daughter, went to village Parsa and convened a panchayati, and in the said panchayati, the Panches decided that thew informant will give a buffalo and ₹ 500/-, and in the morning of the occurrence, the informant had come to inform that he will give the buffalo, but he could not give the cash amount at present, but he came to know that his daughter ha been killed and her dead body was burnt by Surat Sahu, Sheetal Sah, Moti Sah, the appellant Uttim Sah, Sundar Paswan, Chowkidar Ramavatar Paswan and the Gram Sevak.

4. On the basis of the aforesaid written report, Basopatti Police Station Case No. 41 of 1981, dated 05.06.1981, was registered against the accused persons for the offences punishable under Sections 302/201 of the Indian Penal Code.

5. Upon completion of the investigation, charge sheet was submitted by the police on 30.08.1982 against the appellant under Sections 302/201 of the Indian Penal Code and Section 4 of the Anti Dowry Act. Thereafter, on 24.11.1982, cognizance of the offences was taken by the learned Chief Judicial Magistrate and on 14.01.1983, the case record was transmitted to the Court of Sessions.

6. On 25.02.1986, the learned Trial Court framed charges against the appellant under Sections 302 and 201 read with Section 34 of the Indian Penal Code. The charges were read over and explained to the appellant in Hindi, to which he pleaded not guilty and claimed to be tried.

7. The prosecution, in order to substantiate its case, has examined as many as twelve witnesses and exhibited some documents on its behalf. List of prosecution witnesses and exhibits are being mentioned hereunder in tabular form:-

                 

8. The defence has not chosen to examine any witness in support of its case. No oral evidence has been adduced on behalf of the accused to substantiate the defence plea or to rebut the evidence led by the prosecution. Likewise, no documentary evidence has been brought on record by the defence in support of its contentions.

9. After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure on 28.06.1995, in which the appellant denied all incriminating circumstances appearing against him in the prosecution evidence.

10. Learned Amicus Curiae, appearing for the sole appellant has, at the outset, submitted that the judgment of conviction is against the weight of evidence and has been rendered on mere presumption of guilt. It is contended that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the testimonies of the prosecution witnesses suffer from material contradictions and inconsistencies. She has further submitted that the evidence of the prosecution witnesses, when appreciated in its proper perspective, does not inspire confidence and is wholly insufficient to sustain the conviction of the appellant.

11. Learned Amicus Curiae further submitted that the prosecution case suffers from serious evidentiary deficiencies which go to the root of the matter. It is contended that PW 2, PW 3 and PW 4 are merely tendered witnesses, who have not deposed any incriminating fact against the appellant. Their evidence, therefore, does not advance the prosecution case in any manner and cannot be treated as substantive evidence, establishing the guilt of the appellant. It is further submitted that PW 10 and PW 11, who had informed the informant that her daughter had been killed and her dead body was burnt, have been declared hostile. Consequently, a substantial part of the prosecution evidence has either remained inconsequential or has collapsed altogether.

12. Learned Amicus Curiae has further argued that the present case rests entirely upon the testimony of the informant (PW 7), who is not an eye-witness to the occurrence. In a case founded solely on circumstantial evidence, the prosecution was under the legal obligation to establish each and every incriminating circumstance beyond reasonable doubt and to complete an unbroken chain of circumstances pointing exclusively towards the guilt of the appellant while excluding every other possible hypothesis consistent with innocence. According to the learned Amicus Curiae, the prosecution has failed to satisfy this well-settled principle.

13. Learned Amicus Curiae further argued that the Investigating Officer has not been examined during the trial. The Investigating Officer was a material witness whose testimony was essential to prove the investigation conducted, the place of occurrence, the recovery, the seizure list, the contradictions and omissions in the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure and other material aspects of the prosecution case. In his absence, the defence has been deprived of its valuable right to confront the prosecution witnesses with their previous statements and to test the fairness and correctness of the investigation. Such non-examination has caused irreparable loss to the appellant and proved fatal to the prosecution case.

14. Learned Amicus Curiae further argued that Mahendra, who may have been an important witness to the prosecution story, has also not been examined without any satisfactory explanation. The withholding of such a material witness invites an adverse inference against the prosecution, particularly when his evidence could have thrown light upon the facts in issue.

15. Learned Amicus Curiae also pointed out that the prosecution has alleged that a Panchayati had taken place between the parties prior to the occurrence, but neither any document have been brought on record nor any member or participant of the said Panchayati had been examined to substantiate this assertion. The prosecution has, therefore, failed to prove the alleged motive or previous dispute forming the basis of its case.

16. It has further been submitted that suspicion, however grave or strong, cannot take the place of legal proof. A conviction cannot rest upon conjectures, surmises or moral suspicion unless the prosecution establishes the charge by cogent, reliable and legally admissible evidence. In the present case, the prosecution has failed to discharge this burden.

17. Learned Amicus Curiae further argued that it is not a case where the dead body was secretly disposed of or clandestinely burnt so as to attract any adverse inference against the appellant. The prosecution has failed to establish the circumstances in which the deceased met her death, the precise place of occurrence, or the manner in which the alleged offence, if any, was committed. The evidence on record does not conclusively establish either the place of occurrence or the sequence of events leading to the death of the deceased.

18. In the aforesaid circumstances, it is submitted that no reliance can be placed upon the evidence of the prosecution witnesses, while the non-examination of the Investigating Officer and other material witnesses has created serious gaps in the prosecution case, which cannot be filled. These deficiencies strike at the very foundation of the prosecution story and create reasonable doubt regarding the guilt of the appellant. It is, therefore, urged that the appellant is entitled to be accorded benefit of doubt and deserved to be acquitted of the charges levelled against him.

19. Learned Amicus Curiae has placed reliance upon the decisions of the Supreme Court, in the cases of Sukhwant Singh v. State of Punjab, reported in (1995) 3 SCC 367 and Gautam Satnami vs. State of Chhattisgarh, reported in 2026 SCC OnLine SC 536.

20. On the other hand, learned Additional Public Prosecutor, appearing on behalf of the State, while opposing the appeal, submitted that the learned Additional Sessions Judge-I, Madhubani, after considering the evidence on record, has rightly convicted the appellant inasmuch as the offence is heinous in nature and the prosecution witnesses examined during trial have supported the prosecution case.

21. Learned Additional Public Prosecutor, therefore, submitted that the impugned judgment of conviction does not suffer from any legal infirmity and/or irregularity, warranting interference of this Court. The appeal, being devoid of merit, is fit to be dismissed.

22. I have heard Ms. Surya Nilambari, learned Counsel, appearing in this appeal as Amicus Curiae and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State. I have also perused the materials available on records, including the Lower Court’s Record.

23. While considering the present appeal, I would like to re-appreciate the ocular witnesses adduced on behalf of the prosecution.

24. It may be noted that the conviction of the appellant has been based upon the circumstantial evidence as none of the prosecution witnesses have seen the occurrence. Out of the 12 witnesses examined by the prosecution, PW 7 (informant of this case) is the one, who has supported the case of the prosecution by implicating the appellant aforementioned in the alleged killing of his daughter.

25. As far as PW 10 (Halkhori Sah) and PW 11 (Jugal Lal Yadav) are concerned, they were declared hostile and nothing could be, admittedly, elicited from their cross-examination by the prosecution, which could be said to have supported the case of the prosecution. It is important to mention here that PWs 10 and 11 are the persons, who had informed the informant about the occurrence.

26. As far as PW 5 (Bunilal Sao), PW 6 (Ram Dayal Sahu) and PW 8 (Ramji Sao) are concerned, their evidence were, admittedly, nothing, but hearsay and have to be, therefore, kept excluded from the purview of this Court’s consideration.

27. As regards PW 2 (Narayan Thakur), PW 3 (Subadhi Devi) and PW 4 (Ram Bahadur Sahu), suffice it to point out that they were tendered as witnesses and no substantive evidence has been elicited from them by the prosecution to support the charge brought against the appellant.

28. So far as PW 1 (Rajendra Pandey) and PW 12 (Jugeshwar Mukhia) are concerned, they are the formal witnesses who have proved the handwriting and signature of the then Station House Officer, Sri R. N. Lal, on the First Information Report and the case diary.

29. PWs 1, 2, 3 and 4 have deposed that the deceased had sustained burn injuries while cooking food and had consequently died.

30. PWs 5, 6 and 8 have deposed about the demand of ₹ 500 and a buffalo from the informant. They have also deposed in their cross-examination that they came to know about the occurrence from the informant itself.

31. It is trite that hearsay evidence is generally inadmissible to prove the truth of the facts asserted because the person who actually perceived the fact is not before the Court for cross-examination. The prosecution has not demonstrated that the statements attributed to PWs 5, 6 and 8 fell within any exception to the hearsay rule. Even assuming that the evidence of PWs 5, 6 and 8 is considered for the limited purpose of establishing the existence of matrimonial discord or alleged demand for dowry, it cannot be treated as substantive evidence proving the commission of murder. At the highest, it may furnish a possible motive. However, motive by itself cannot establish guilt in the absence of reliable evidence connecting the accused with the crime.

32. Bearing in mind the above aspects of the prosecution’s case, I come to the evidence of PW 7, Ramdev Sah, the informant of this case and father of the deceased. He had deposed, in his examination-in-chief, that in the morning of the occurrence, at about 8 AM, when he went to matrimonial house of his daughter, where Surat Sah reside, he was informed by Halkhori Sah (hostile), Jugat Lal Yadav (hostile) and Mahendra (not examined) that his daughter, Mantutia, had been killed and burnt by Surat Sah, Sheetal Sah, Moti Shah, Uttim Sah, Sundar Paswan, Ramavatar Paswan and Shivdas because he failed to fulfill their demand for a sum of ₹ 500 and a buffalo. He further deposed that the appellant, Uttim Lal Sah, was his son-in-law and prior to the occurrence, he had assaulted the deceased and left her near her parental village, upon which, the deceased returned home and told that she had been beaten and ousted out of her matrimonial home on account of his failure to provide ₹ 500 and a buffalo.

33. This witness (PW 7) had deposed that thereafter he, along with his daughter, went to village Parsa and convened a Panchayati at the house of the appellant, in which the accused persons allegedly told that they would not keep the deceased in her matrimonial home unless the buffalo and the money were provided and apprehending that his daughter might otherwise be deserted, he acceded to their demand. In the morning of the occurrence, when he went to the matrimonial home of his daughter to inform the accused persons that they could take the buffalo, he came to know that the accused persons had killed and burnt his daughter in the previous night.

34. This witness (PW 7) had deposed that after the death of his daughter, he lodged a written report at the police station, which was ascribed by Ramdin Pandit and he put his signature on it.

35. In his cross-examination, this witness (PW 7) had deposed that he did not remember the exact year of her marriage but asserted that it had taken place about two to three years prior to the occurrence and the gauna ceremony was performed about one year after the marriage, and the demand for a buffalo and cash was first time made by the accused persons at the time of gauna.

36. This witness (PW 7) had deposed that except Halkhori Sah (hostile), Jugat Lal Yadav (hostile) and Mahendra (not examined), no other person had specifically informed him about the incident, although he attempted to ascertain the facts from other villagers, whose names, he could not recollect.

37. With regard to the alleged Panchayati, this witness (PW 7) had deposed that it was convened at the house of Surat Sah. This witness (PW 7) had deposed that he did not himself nominate any person as a Panch and he also did not know the names of the persons who were Panches on behalf of the accused side either.

38. This witness (PW 7) had deposed that on the day he visited village Parsa, he did not had any conversation either with his son-in-law, Uttim Lal Sah, or with his father, nor did he ask them how his daughter died. He also admitted that he neither met nor spoke to the village Chowkidar or the Panchayat Sevak regarding the occurrence.

39. This witness (PW 7) had deposed that the names of the accused persons were incorporated in the written report by him on the basis of what had been disclosed by Halkhori Sah (hostile), Jugat Lal Yadav (hostile) and Mahendra (not examined).

40. The testimony of PW 7, the informant and father of the deceased, undoubtedly constitutes the cornerstone of the prosecution case. However, it requires careful scrutiny because he is not an eyewitness to the occurrence. By his own admission, he reached the village of the accused at about 8 AM on the following morning. Therefore, his knowledge regarding the alleged killing is based on what was allegedly told to him by others.

41. According to PW 7, he came to know about the killing of his daughter from Halkhori Sah, Jugul Lal Yadav and Mahendra Sah. It was on the basis of the information allegedly furnished by these three persons that he implicated the accused. Significantly, PW 10 (Halkhori Sah) and PW 11 (Jugul Lal Yadav), who were examined by the prosecution, did not support the prosecution case and were declared hostile. Mahendra was not examined at all.

42. The inevitable consequence is that the very source from which the informant claims to have derived knowledge regarding the alleged killing remains unsubstantiated. Once the persons said to have informed the informant have either not supported the prosecution version or have not been examined, the testimony of PW 7, to the extent it narrates what he was allegedly told by them, loses its evidentiary value.

43. Furthermore, PW 7 admitted during cross-examination that he neither spoke to his son-in-law nor to the father of his son-in-law after reaching the village. He also admitted that he did not enquire from the village Chowkidar or the Panchayat Sevak regarding the circumstances in which his daughter died. Although he claimed that a Panchayati had earlier been convened, but he could not disclose the names of a single Panch who had participated in the said meeting. No independent member of the alleged Panchayati had been examined by the prosecution. These omissions materially affect the reliability of the prosecution version concerning the alleged demand for dowry and the immediate motive for the occurrence.

44. The present case admittedly rests entirely upon the circumstantial evidence. There is no eyewitness to the alleged occurrence. The prosecution case is founded upon the allegation that the deceased was subjected to cruelty on account of demand of dowry and she was ultimately killed by the accused person and her dead body was burnt.

45. Had the dead body of the deceased been subjected to post mortem, the prosecution, on the basis of the post mortem examination, could have established by scientific evidence whether the burns were ante-mortem or post-mortem, whether there were injuries suggestive of assault prior to burning and whether the death could have resulted from accidental fire while cooking.

46. Criminal courts are required to return findings on the basis of evidence and not on conjectures. The prosecution cannot ask the Court to presume homicidal death merely because the death occurred in the matrimonial home or because allegations of dowry demand have been made. The foundational fact of homicidal death must first be proved by cogent and reliable evidence. In the present case, the foundational fact itself remained shrouded in doubt.

47. Consequently, this Court is constrained to hold that the prosecution has failed to satisfactorily establish, by legally admissible evidence, that the death of the deceased was homicidal. This finding assumes crucial importance because the subsequent questions relating to the applicability of Section 106 of the Evidence Act, the alleged conduct of the accused, and the chain of circumstances can arise only after the prosecution succeeds in proving the basic fact that a homicidal death had occurred.

48. It is a settled principle of criminal law that motive assumes significance only when the prosecution has otherwise succeeded in establishing the commission of the offence. Motive is merely one link in the chain of circumstances and can never become a substitute for proof of the offence itself. In the present case, the prosecution seeks to treat the alleged motive as the principal circumstance, overlooking the fact that the basic circumstance, namely homicidal death, itself remains unproved.

49. The Supreme Court, in the case of Satye Singh v. State of Uttarakhand, reported in (2022) 5 SCC 438, has held that Section 106 of the Indian Evidence Act (burden of proving fact especially within knowledge) is not intended to relieve the prosecution of its primary, foundational duty to first prove the guilt of the accused through clear evidence before any onus shifts to the defence.

50. Therefore, this Court is of the considered view that Section 106 of the Evidence Act has no application to the facts of the present case. The prosecution having failed to establish the foundational facts necessary for invoking the said provision, no adverse inference can legally be drawn against the appellant merely because he did not furnish an explanation regarding the death of the deceased.

51. Another important aspect which has a direct bearing on the fairness of the trial and the credibility of the prosecution case is the non-examination of the Investigating Officer. The prosecution has failed to examine the officer who investigated the case, visited the place of occurrence, effected the alleged seizure, recorded the statements of the witnesses and ultimately submitted the police report.

52. The Investigating Officer alone could have clarified the exact place of occurrence. According to the prosecution, the deceased was first assaulted and thereafter burnt. The seizure list allegedly records recovery of ashes, pieces of bones and a brass ring from the place of occurrence. However, in the absence of the Investigating Officer, there is no substantive evidence explaining from where these articles were recovered, whether the place of occurrence was properly identified, whether independent witnesses were present during the inspection, and whether the articles were sent for any scientific or forensic examination. The Court is, therefore, left only with the formal proof of the seizure without any evidence regarding the investigative process that culminated in such recovery.

53. The Investigating Officer was also the most competent witness to explain the steps taken during the investigation after registration of the case. The record is silent as to whether any scientific evidence was collected, whether photographs of the place of occurrence were taken, whether the remains allegedly recovered were preserved and examined, whether any articles smelling of kerosene or other inflammable substances were seized, and whether any effort was made to ascertain if the death could have been homicidal. The absence of such evidence assumes greater significance because the prosecution witnesses themselves have introduced the possibility of accidental burns while cooking.

54. It is true that mere non-examination of the Investigating Officer is not fatal to the prosecution in every case. The legal position is fairly well settled that where the prosecution case stands proved by cogent, reliable and unimpeachable evidence, the omission to examine the Investigating Officer may not necessarily result in acquittal. However, the principle is equally well settled that where serious prejudice is caused to the accused, or where material contradictions and omissions cannot be duly proved in the absence of the Investigating Officer, such non-examination assumes considerable significance and may seriously affect the prosecution case.

55. In Behari Prasad v. State of Bihar, reported in (1996) 2 SCC 317, the Supreme Court observed that although the non-examination of the Investigating Officer is not invariably fatal, the Court must examine whether prejudice has been caused to the accused. If the defence is deprived of an effective opportunity to establish contradictions, challenge the investigation or test the veracity of the prosecution witnesses, the omission assumes importance while appreciating the prosecution evidence.

56. Applying the aforesaid principles to the present case, this Court finds that the prejudice caused to the appellant is not merely technical but substantial. The prosecution case suffers from glaring inconsistencies and material contradictions. In such circumstances, the testimony of the Investigating Officer assumed crucial importance for resolving these inconsistencies.

57. This Court is, therefore, of the considered opinion that the non-examination of the Investigating Officer has caused serious prejudice to the defence. The appellant was denied the valuable right of effectively proving contradictions, testing the fairness of the investigation, and confronting the prosecution witnesses with their previous statements. In the peculiar facts of the present case, non-examination of the Investigating Officer further weakens the prosecution case.

58. Having independently scrutinized the entire evidence on record, I am of the considered opinion that the prosecution has failed to establish the complete chain of circumstances necessary for sustaining a conviction. The circumstances relied upon by the prosecution neither stand fully proved nor are they of such conclusive nature as to unerringly point towards the guilt of the appellant.

59. I am conscious of the fact that the death of a young married woman is indeed a matter of grave concern. Courts cannot remain insensitive to allegations of dowry-related cruelty or violence against women. At the same time, the seriousness of the allegation cannot relieve the prosecution of its obligation to prove the charge in accordance with law. Criminal courts administer justice on the basis of legally admissible evidence and not on the basis of moral suspicion or social considerations. Conviction cannot rest upon conjectures, however compelling the surrounding circumstances may appear.

60. Consequently, I am constrained to hold that the findings recorded by the learned Trial Court are not supported by the evidence on record. The conviction has been founded upon assumptions and inferences which are not legally sustainable. The prosecution having failed to establish the complete chain of circumstances consistent only with the guilt of the appellant, the conviction cannot be allowed to stand.

61. In my considered opinion, the prosecution has failed to prove that the appellant and other accused persons were the author of the burn injuries which resulted in the death of daughter of the informant. Consequently, the appellant is entitled to be acquitted of the charges levelled against him.

62. Accordingly, the appeal is allowed. The judgment of conviction, dated 07.07.1995 and the order of sentence, dated 13.07.1995, passed by learned 1st Additional Sessions Judge, Madhubani, in Sessions Trial No. 05 of 1983/90 of 1985, arising out of Basopatti Police Station Case No. 41 of 1981, are hereby set aside. The appellant is acquitted of all the charges levelled against him.

63. Since the appellant is on bail, his bail bond is hereby cancelled and his sureties shall stand discharged.

64. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

65. I would like to place on record the sincere appreciation for the valuable assistance rendered by learned Amicus Curiae, Ms. Surya Nilambari. Through careful preparation, objective submissions and dedicated efforts, the learned Amicus Curiae has assisted the Court in the fair and effective adjudication of the matter. The Court acknowledges and commends such contribution with gratitude.

66. Let the learned Amicus Curiae be paid a sum of Rs. 10,000/- by the Patna High Court Legal Services Committee.