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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1708 OF 2015

[ARISING OUT OF S.L.P. (CRL.) NO. 8111 OF 2014]

RAJIV SINGH ....APPELLANT

VERSUS

STATE OF BIHAR & ANOTHER ….RESPONDENTS

JUDGMENT

AMITAVA ROY,J.

1. Leave granted.

2. A fond honeymoon trip of a newly wed young couple met

with a tragic end, with the mysterious disappearance of the wife

from the company of her husband, in the train in which they

were traveling on their way back home. The appellant, the

husband, in the attendant facts and circumstances, stands

arraigned and convicted under Sections 304B, 201, 498A of the

Indian Penal Code (for short, hereinafter to be referred to as

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'IPC') and has been sentenced to undergo rigorous

imprisonment for varying terms for the offences involved. The

High Court of judicature at Patna, having affirmed the

conviction & sentence recorded by the learned trial court, the

appellant seeks redress in the instant proceedings, challenge

being laid to the judgment and order dated 16.05.2014

rendered in Criminal Appeal (SJ) No. 1169 of 2011.

3. A short preface to the dreadful episode is indispensable.

Rani Archana Sinha (for short, hereinafter to be referred to as

“Archana”) got married on 29.04.2007 with the appellant

according to Hindu rites and had duly joined the matrimonial

home. Archana was a practicing advocate and had appeared in

a competitive examination in which, as per the results declared

on 10.08.2007, she was not selected. The couple planned their

honeymoon trip to Darjeeling and proceeded thereto, by Capital

Express on the same date. They alighted at New Jalpaiguri

Station, and after visiting the places of their interest, as

scheduled, they on 14.08.2007 boarded the same service for the

return journey at 1500 hrs. As the facts have unfolded from the

First Information Report lodged by the appellant with the

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Mokamah G.R.P.S. on 15.08.2007, the couple had dinner at

Katihar Junction at 2000 hrs whereafter they retired for the

night in their respective berths No. 33 (appellant) and No. 35

(Archana) in coach S–1 of sleeper class approximately at 2100

hrs. As per the version of the appellant, he woke up at 0510

hrs on 15.08.2007 at Bakhtiarpur Station, to find that his wife

was missing from her birth whereafter, he started searching for

her on the running train. According to him, when the train

reached Patna Junction, he looked for her in the other trains

also thereat. His plea is that on being enquired, the passengers

in his coach did affirm that the lady was available in the train

upto 0400-0430 hours. It is the appellant’s assertion that

situated thus, he reported the matter first with the GRP, Patna

and eventually lodged the First Information Report with

Mokamah G.R.P.S..

4. This account of the introductory facts is available in the

aforementioned First Information Report, in which noticeably,

the appellant did disclose his presumption that his wife might

have been kidnapped. This information was registered, as FIR

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No. 26/2007 dated 15.08.2007 under Section 365 IPC between

0400 PM to 0500 PM.

5. While the matter rested at that, on 18.08.2007 at 1430

hours, an information was laid by one Jagdish Chander Sharma

resident of Village Daulatabad, P.S. Azam Nagar, District

Katihar that on the same day at 1200 hours, he was informed

by some children that a dead body was lying by the side of the

railway track whereupon, he visited the spot and found the

dead body of a female in a putrefied condition in a pit in a bush.

According to him the body was lying prostate due to which the

face was not visible. The informant opined that the death might

have occurred due to fall from the train about four to five days

back. He also described the wearing apparel of the dead body,

to be “check green coloured salwar suite”. He mentioned about

detached hairs from the head which were of black colour.

6. An inquest of the dead body followed on 19.08.2007 at

10.10 PM and a report based thereon was prepared. The

findings as recorded inter alia did disclose that nothing was

clear with regard to the marks of assault of injury, as the dead

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body was in the process of rotting. While noting that both feet

were “in semi absent position due to rotting”, it was mentioned

as well that the dead body wore “sky coloured white and pink

check salwar and sameeze”. It was inferred that the cause of

death was due to fall from train.

7. Meanwhile, the parents of Archana having enquired on

15.8.2007, at about 11 A.M. about her whereabouts from the

appellant, they had learnt that she had gone missing from the

train. Having come to know that a dead body had been

recovered as above, the brother of Archana, Mr. Ravi Shankar

Prasad requested his cousin Akhilesh Kumar to identify the

same proposing that he would also reach the place for the same

propose. Incidentally, the dead body had been recovered near

the railway line at Azam Nagar, and in due course was brought

to the Railway Police Station, Katihar at the first instance. As it

would appear from the letter dated 14.09.2008 of Akhilesh

Kumar, addressed to the Station House Officer, Railway Police

Station, Mokamah, he on a survey of the dead body was of the

opinion that it was not of Archana. According to Akhilesh

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Kumar, he along with others had visited the Sadar Hospital,

Katihar to identify the body but failed to do so for the following

reasons.

1.That the hair of head was missing.

2.The face was comparatively small.

3. There was no mole on the chick.

4. The physique of the dead body was comparatively

thin.

5. Neither the bangles were found in the hands nor

was it stated by the Jamadar of Azam Nagar that

the same was found at the place of occurrence.

6. There was no under garments on the body.

7. There was simple salwar-suit on the dead body.

8. The age seems to be less.

9. At that time I talked to cousin Ravi Shanker and

aunt in relation to built up and appearances of

the dead body many times and after due

consideration with the officer in charge, Katihar

GRPS, Jamadar Azam Nagar GRPS and Jamadar

of Mokama GRPS I came to a conclusion that the

dead body was not of Rani Archana.

8. The dead body was also subjected to post-mortem

examination on 19.8.2007 in which it was noted that the same

was in an advance stage of decomposition and that the right

and left foot just below the ankle joint were absent. The exact

cause of death could not be ascertained and the viscera was

preserved for forensic test. The report prepared on the basis of

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the autopsy, however, recorded that the time lag between the

death and post-mortem examination was more than six days,

suggesting thereby that death had occurred on 13.8.2007 or

prior thereto.

9. While the investigation on the report lodged by the

appellant was underway, the mother of Archana, on 5.9.2007

lodged a complaint in the court of Chief Judicial Magistrate,

Patna against the appellant, his parents, his brothers and

sisters which was registered as Complaint Case No. 2544(C) of

2007. It was alleged therein that as reported by Archana, her

in-laws had “greedy eyes” towards the wealth of her family and

that at the matrimonial home, they used to ill-treat her and

make her work as a domestic maid for all intents and

purposes. Apart from being ridiculed for not getting selected in

the judicial service examination to earn a living, her relevance

in the nuptial house was also used to be questioned. According

to the complaint, her in-laws instructed her to bring Rs. 2.50

lakhs from her parents so as to complete the construction of

their house and also to furnish the same. Besides expressing

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serious apprehension in view of the sudden programme of the

couple to visit Darjeeling without prior information to her, the

complainant also accused the appellant and his family

members of a conspiracy to eliminate Archana so as to facilitate

the second marriage of his (appellant) with the prospects of

earning handsome dowry.

10.The complainant however admitted that on 12.8.2007,

her daughter had called her to inform that she was at Manipal

whereafter, she could not talk to her inspite of repeated

attempts as her cellphone had remained switched off. The

complaint revealed that it was on 15.8.2007 at about 11 A.M.,

after she had failed to talk to her daughter as her cellphone

continued to be off, that she contacted the appellant who on

being queried, replied that she had lost Archana. On this, the

complainant’s husband after ascertaining that the appellant

was at Mokamah, advised him to report the incident to the

Mokamah G.R.P.S. The complainant alleged that the appellant

had in fact lodged the FIR with the Mokamah G.R.P.S. to save

himself and his family members who were responsible for the

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episode. The complainant, apart from alleging, that the FIR had

been lodged by the appellant to mis-guide the investigation,

accused him and his family members of having murdered her

daughter Archana, in course of the journey and disposed of her

body so as to efface all incriminating evidence. She expressed

reservation about the course and quality of the ongoing

investigation and requested that the complaint be forwarded to

the Gandhi Maidan Police Station for lodging it as FIR and to

initiate a proper investigation in order to make the accused

persons stand trial. The complaint was made under Sections

304B/201/120B/498A IPC and Sections 3 and 4 of the Dowry

Prohibition Act, 1961.

11.After the investigation that followed on the complaint,

charge-sheet was submitted under Section 498A IPC against

the appellant alone and the inquisition was kept pending

against the other accused persons. As the materials on record

would disclose, thereafter the learned Magistrate concerned,

acting on an application filed under Section 323 Cr.P.C. on

behalf of the prosecution and, being satisfied on a consideration

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of the further disclosures in the investigation, that prima facie a

case against the appellant under Sections

498A/304B/120B/201/364 IPC and Sections 3 & 4 of the

Dowry Prohibition Act, 1961 had been made out, committed it

to the Court of Sessions. Charge was subsequent thereto

framed against the appellant under Sections 304B/201/498A

IPC and to which he pleaded “not guilty and claimed to be

tried”.

12.At the trial, the prosecution examined twelve witnesses

whereafter the statement of the appellant was recorded under

Section 313 Cr.P.C. The appellant also examined five witnesses

in his defence. At the conclusion of the trial, the appellant was

found guilty and was convicted under Sections 304B/201 and

498A IPC by the learned trial court and was sentenced to

undergo R.I. for 10 years for the offence under Section 304B

IPC and for two years each for the offences under Sections

201/498A IPC. For the offences under Sections 201/498A IPC,

the trial court also imposed a sentence of fine of Rs. 5000/-

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each, in default whereof, the appellant was to suffer S.I. for one

month. All the sentences were ordered to run concurrently.

13.Having unsuccessfully appealed before the High Court,

the appellant seeks redress before this Court.

14.We have heard Mr. R. Basant, learned senior counsel for

the appellant, Mr. Subramonium Prasad, learned senior

counsel for the respondent No. 1 and Ms. Tanya Shree, learned

counsel for the respondent No. 2.

15.Apt it would be to outline the rival contentions at the

threshold in order to facilitate a correct insight into the evidence

on record.

16.Referring to the provisions of the Indian Penal Code

under which the appellant stands convicted, Mr. Basant has

persuasively argued that in the facts and circumstances of the

case, none of the ingredients of the offences with which the

appellant had been charged, has been proved and thus, he is

entitled to an honourable acquittal. The learned senior counsel

has pleaded that the prosecution having failed to establish the

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death of Archana beyond all reasonable doubt and further that

it was as a consequence of demand for dowry or

harassment/cruelty arising therefrom or in connection

therewith, the essential pre-requisites of the offences under

Sections 498A/304B IPC had remained unproved. While

stoutly disputing the identity of the dead body, recovered in the

course of investigation to be that of Archana, learned senior

counsel has urged that even assuming without admitting it was

that of the wife of the appellant, in absence of any proof that it

was not accidental but homicidal, the offence under Section

304B IPC cannot be said to have been established. According

to Mr. Basant, even otherwise, the prosecution case as sought

to be portrayed is inherently improbable and illogical in

defiance of logic and thus ought to have been rejected outright

by the courts below.

17.Elaborating the arguments in the above dimensions,

learned senior counsel adverted, in particular to the testimony

of PWs 5, 6 and 7 to the effect that Archana had been seen by

them (the co-passengers) to be hale and hearty in the train till

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Katihar/Barauni stations much beyond Azamnagar near which

the dead body was found. He also referred to the post-mortem

report dated 19.8.2007 which recorded that the time lag

between the death and the autopsy was more than six days, to

assert that the dead body could not have been that of Archana

as she was alive in the intervening night of 14.8.2007 and

15.8.2007. Apart from contending that the dead body was

identified by Akhilesh, a relation of Archana, to be not that of

her on a thorough examination thereof, which ruled out the

probability that it was that of the wife of the appellant, the

learned counsel has argued that the absence of any explanation

whatsoever about the presence of poison in the dead body, did

also conclusively evidence the fact that it was not that of

Archana. The learned senior counsel referred to the

discrepancy in the wearing apparels of the dead body and that

of the wife of the appellant which, according to him, conjointly

considered along with the other factors bearing on the

identification of the dead body, authenticated in unmistakable

terms that the corpse was not that of Archana. Mr. Basant

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dismissed the authenticity and the probative worth of the report

of the DNA test on the ground that the same was neither

conducted in an accredited laboratory as per the prevalent rules

and procedure and also being bereft of any proof of the required

scientific analysis of the sample being undertaken and the

genuineness of the conclusion arrived at on the basis thereof.

Apart from asserting that there was lack of authentic evidence

with regard to drawal of the blood samples from the parents of

the Archana for the DNA test, learned senior counsel also

rejected the testimony of Dr. Shyam Bahadur Upadhyay

(PW10), the then Director In-charge of Forensic Science

Laboratory, Patna, Bihar (for short, hereinafter to be referred to

as “FSL”) to be wanting in credence, amongst others, in view of

his admission that he was neither an expert in the domain of

DNA test nor had received any training in that regard. Mr.

Basant urged that the prosecution having offered to examine

this witness, it would not be permitted to avail the benefits of

Section 293 Cr.P.C. to accept the probative worth of the DNA

report dehors the testimony of PW10. According to Mr. Basant,

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even the parents and other relatives of Archana were not

convinced that the dead body found by the side of the railway

track in the vicinity of Azamnagar police station was that of

hers and therefore had filed a writ petition before the High

Court of Patna in the year 2008, which, however, stood

dismissed on 8.9.2008.

18.Learned senior counsel for the appellant further urged

that in absence of any convincing evidence on record that

immediately before the incident, Archana had been subjected to

cruelty/harassment by the appellant for or in connection with

the demand for dowry, the charges relatable thereto are wholly

unfounded. He argued that though in the course of evidence, it

transpired that a personal diary of Archana had been retrieved,

the same for inexplicable reasons had been withheld by the

prosecution. Apart from contending that such an omission

raises an adverse inference against the prosecution, the

learned senior counsel also urged that the evidence with record

to investments made in the Tata Mutual Fund by the brother of

Archana is of no avail to the prosecution as the money invested

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had not been diverted to the appellant for his gainful use. Mr.

Basant has argued that having regard to the proved

circumstances pertaining to the travel of the couple in the train

“Capital Express’ up to Katihar/Barauni Stations in the night

between 14/8/2007 and 15/8/2007 during which the Archana

was found cheerful in the company of the appellant, the

prosecution version of poisoning her by him and disposing of

her body in the dead of the night unnoticed by any of the

passengers in the compartment is wholly impossible,

impracticable, unrealistic and thus, ought to be rejected in

limine. Without prejudice to these pleas, Mr. Basant has

maintained that the prosecution having utterly failed to prove

that the wife of the appellant had died a homicidal death, his

conviction under Sections 498A/304B/201 IPC by no means

can be sustained in law, even assuming that the dead body was

that of Archana.

19. To drive home the above points, learned senior counsel

pressed into service the following decisions of this Court.

(i) Sultan Singh vs. State of Haryana (2014)14 SCC 664

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(ii) Sher Singh @ Partapa vs. State of Haryana (2015) 3

SCC 724.

20.In reply, Mr. Subramonium Prasad, learned senior

counsel, leading the arguments on behalf of the respondents,

urged that the charges leveled against the appellant had been

duly proved and thus his conviction and sentence does not

warrant any interference. Referring to the complaint filed by

the mother of Archana, in particular and the statements on

oath made by her parents and the brother i.e. PWs 1, 2 and 3,

the learned senior counsel asserted that the same in totality did

unambiguously demonstrate that soon after the marriage,

Archana had been subjected to torture and ill-treatment for and

in connection with the demand for dowry and that the charges

qua the appellant pertaining thereto had been rightly leveled

against him and proved at the trial. According to the learned

senior counsel, even assuming that Archana had been found

travelling with the appellant in the train till Katihar/Barauni,

there was, admittedly, no endeavour on his part to stop the

train at Bakhtiarpur when for the first time, it transpired that

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she was not aboard and had gone missing. Mr. Prasad has

submitted that the conduct of appellant of travelling to Patna

and returning to Mokomah to eventually lodge a belated FIR

about the incident, is not only opposite to normal human

behaviour and reflexes, but also is a sinister index of his

complicity in the crime. Besides underlining that the appellant

had not even gone to see the dead body, the learned senior

counsel pleaded that the delayed FIR by him was a strategic

move to screen himself from the incident and divert the

investigation in the wrong direction. Mr Prasad was critical as

well of the manner in which the prosecution was conducted

contending that no sincere effort was made to elicit the truth

from the material witnesses including the co-passengers in the

train which indicated a foul play to shield the appellant. Mr.

Prasad argued that the evidence of PW10 would not exclude the

applicability of Section 293 Cr.P.C. and thus the report of the

DNA test (Exb. 14) establishing the identity of the dead body

with Archana, could be acted upon independently to the said

effect. Mr. Prasad urged that the mother of Archana being

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exasperated with the inaction of the investigating agency in

diligently probing into the incident, did file a complaint on

5.9.2007. According to him, the writ petition seeking a writ of

habeas corpus though can be construed to be a desperate

initiative, induced by inconsolable parental susceptibilities, the

same does not in any way detract from the charges leveled and

proved against the appellant. The following decisions were cited

to rest the submissions adverted to hereinabove.

1.Mohd. Imran Khan vs. State Government (NCT of

Delhi) (2011) 10 SCC 192

2.State of Gujarat vs. Anirudhsing and another (1997)

6 SCC 514

3.Rajesh Kumar and another vs. State Government

NCT of Delhi (2008) 4 SCC 493

4.State of H.P. vs. Mast Ram (2004) 8 SCC 660

5.Rattiram and others vs. State of Madhya

Pradesh through Inspector of Police (2012) 4 SCC

516

6.Rohtas Singh & others vs. State & Another

(2011) II AD (Delhi) 612 (High Court of Delhi)

7.Abeed vs. State of Karnataka (2015) 1 AKR 360

(High Court of Karnataka)

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21.Though the courts below have on the evidence, oral and

documentary adduced by the parties, recorded concurrent

convictions against the appellant, having regard to the

contentious assertions and being the final Court of

adjudication, we feel inclined to undertake a summary scrutiny

of the materials on record. This is more so, in view of the

profuse reference to the evidence, by both the sides in the

course of arguments.

22.Subhash Chandra Prasad (PW1), the father of Archana

was at the relevant point of time, posted as Additional District

& Sessions Judge, Gaya. He stated on oath that soon after the

marriage, his daughter had disclosed to them that her in-laws

were greedy by nature and did want lakhs of rupees in the form

of dowry. The witness stated that his daughter alleged that her

parents in-laws, husband and sister-in-law, used to compel her

to do domestic works of all kinds and that her mother-in-law in

particular, did ask her to bring Rs. 2.5 lakhs from her father so

that the construction of their house could be completed and

that the same could be furnished with the necessary household

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articles. This witness further stated that her daughter’s

sister-in-law used to taunt her. The witness also stated about

the demand for dowry being made by the appellant and her

father and the insistence of the appellant to invest in mutual

funds and to make him the nominee. He also stated about the

purchase of units of Tata Mutual Fund by making the appellant

as the nominee and transfer thereof to his joint account with

Archana. The witness stated that the results of C.D.P.O.

examination in which Archana had appeared were declared on

10.8.2007 in which she was unsuccessful. He expressed

surprise at the sudden programme of the couple to take a tour

when they received a phone call on 10.8.2007 from Archana

that they were at Sikkim. The witness stated that thereafter his

wife could not talk to Archana from 13.8.2007 as her cell phone

was switched off. The witness also mentioned about the queries

made by the appellant with his son Ravi Shankar Prasad (PW2)

on 13.8.2007, as to whether the latter had purchased units of

the mutual fund whereafter the couple became incommunicado

till 15.8.2007 when, on being called, the appellant replied from

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his cell phone that Archana had gone missing. The witness

testified that on enquiry, the appellant stated that he was then

at Mokamah for which he was advised to file a complaint with

Mokamah G.R.P.S.. The witness also admitted to have

instructed the GRP personnel to detain the appellant by

confiding in them that he had committed the murder of his

daughter. The witness mentioned that on 16.8.2007 when he

met the appellant, according to him, the appellant did not wear

any feeling of pain or anguish and that he even declined to

proceed to Darjeeling when offered, to search for his wife. The

witness further stated that on being shown the photographs of

the dead body recovered, he could not recognize as its face was

dis-figured. He also deposed that the blood samples had been

taken from him and his wife which after the necessary

examination did match with the sample of the viscera and DNA

of the dead body. According to the witness, his daughter had

been murdered by forcefully administering poison to her by the

appellant in connivance with his family members out of their

greed for money and for re-marriage to ensure further dowry

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receipts. He proved the complaint filed by her wife Malti Devi

(PW3) as Exh. 1. He admitted as well that the complaint had

been drafted by his advocate on their instructions.

23.In cross-examination, this witness referred to a diary of

Archana, which according to him, was made available during

the investigation by the Mokamah G.R.P.S.. The witness stated

that he had an opportunity to see the diary which was up to

date till the incident. He denied the suggestion that the diary

did indicate Archana’s appreciation for the parents in-laws and

the family. The witness however referred that Archana had

written in the diary “circumstances does not permit me to live

alive”. He admitted that his wife had filed a writ petition before

the High Court of Patna for having the case investigated by the

CBI. He also admitted that Akhilesh Kumar Singh, who at the

relevant point of time was S.H.O., Kishan Ganj and a relation

of the family, had informed him that he could not recognize the

dead body to be that of Archana. The witness expressed his

ignorance as to who had taken the tissues of the dead body

from the Katihar Hospital for DNA test. He admitted as well

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that the mutual fund investments had not been transferred to

the account of the appellant or got encashed by him.

24.The evidence of Ravi Shankar Prasad (PW2), the brother

of Archana is substantially in the same lines as that of his

father, PW1. Apart from reiterating in general the narration

made by his father with regard to the marriage of his sister with

the appellant and the reported behaviour meted out to her in

connection with dowry demands, this witness emphasized in

particular with regard to the investments in TATA Mutual Fund

said to have been made on the persistent insistences of the

appellant till the eve of the incident i.e. of 14.08.2007. In

course of his testimony, this witness mentioned that he was at

the relevant time posted as Territory Manager in Tata Mutual

Fund, Branch Patna. Referring to a joint savings account of the

couple in the State Bank of India, the witness imputed a design

in the appellant so as to have the mutual fund investments

transferred thereto and reap unlawful gain therefrom following

the elimination of his wife. This witness also referred to a diary

of Archana said to have been recovered from her matrimonial

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house, by the Mokamah G.R.P.S. in course of the investigation,

where she had noted “I want to live alive”. He admitted to have

requested his cousin Akhilesh Kumar Singh to identify as to

whether the dead body found in the vicinity of Ajamnagar

Police Station was that of his sister and that it could not be

done as the face thereof was distorted. He also adverted to the

DNA test and the result thereof to the effect that the viscera of

the dead body had matched with blood sample of his parents to

authenticate that the preserved viscera was their generic

product. He however mentioned that on 09.09.2007 the

appellant had intimidated him and had also threatened to kill

him unless the case was withdrawn but admitted that he had

not lodged any complaint with the police with regard thereto. In

cross-examination, this witness admitted that the money

invested in the mutual fund was intact and had not been

withdrawn by the appellant.

25.Malti Devi (PW3), the mother of Archana reiterated the

version of her husband, PW1, with regard to the ill-treatment to

which her daughter had been subjected during her stay in the

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matrimonial home. She admitted to have talked to her daughter

on 12.08.2007 but could not on the two subsequent days i.e.

13.08.2007 and 14.08.2007 as her cell phones had been

switched off. She referred to her conversation with the

appellant on 15.08.2007 at about 11.00 am, on her call to him,

to be told that Archana was missing. She reaffirmed that on

hearing this, her husband PW1 had advised the appellant to

lodge the information with Mokamah G.R.P.S., as he then was

at that place.

26. According to this witness, when they met the appellant at

Mokamah G.R.P.S., they found the appellant to be normal with

no expression of any distress or anguish on his face. She also

referred to a dead body found by the Mokamah G.R.P.S. in

course of the investigation and admitted to have sent Akhilesh

Kumar to identify the same. The witness stated that Akhilesh

Kumar however could not identify the dead body whereafter

post-mortem examination was conducted thereon on

19.08.2007. The witness also mentioned about the DNA test

conducted by comparing the viscera and their blood samples

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which revealed that the dead body was that of their daughter.

She proved the complaint filed by her on 05.09.2007 and

admitted that the same had been drafted by their advocate on

their instructions. She denied the suggestion that she had not

stated before the Investigating Officer about the dowry demands

made by the appellant and his family members and the

ill-treatment to which Archana had been subjected. According

to this witness, the blood samples for DNA test from her and

from her husband were taken at Rajvanshi Hospital.

27.Krishan Tiwari (PW4), who was a passenger in the

Capital Express on 14.08.2007 stated that he had been allotted

seat No.43 of coach No. S-1 in which a couple had been

travelling as well. He stated to have seen the couple together

upto Barsoi Station and that he disembarked at Barh, his

destination. He testified that on being shown some

photographs by the police, he could identify the lady to be one

aboard the Capital Express that evening. On cross-examination,

this witness stated that the station Barsoi lies on the way to

Katihar. He stated that he did not see the lady either resentful,

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belligerent or weeping so long as he was present in the

compartment.

28. Sujit Dokania (PW5) also stated on oath to have been

travelling by the same train from Kishanganj to Patna on

14.08.2007. He affirmed that his berth No. was 44 and Coach

No. was S-I. According to him he was traveling with his brother

Sumit Dokania, PW6. The witness stated that after having

meal, they had retired for the night. According to this witness,

he was awakened by shouts at Bakhtiarpur at about 4.00/4.30

a.m. whereafter he come to learn that the wife of one passenger

had gone to the toilet but had not returned and was not

traceable. He also confirmed, on being shown the photographs

that the couple therein were the appellant and his wife. He also

identified the appellant in court. According to the witness, the

wearing apparel of the lady was of light green colour. In

cross-examination, this witness affirmed that the couple were

sitting on their berths at Katihar and that both were behaving

normally.

Page 29 29

29.Sumit Dokania (PW6), reiterated the version of his

brother PW5 who also could recognize the couple when was

shown their photographs and identified them to be that of the

appellant and his wife, who were traveling along with them in

the train on 14.08.2007.

30.Naveen Kumar Misra (PW7) also stated on solemn

affirmation that he was traveling on the same train on Berth

No.35 in coach No. S-1. He stated that a couple was traveling

on berth Nos. 33 & 36. According to this witness, he had gone

to sleep at about 7/8 p.m. and woke up in the mid-night and

got down at Barauni. He also confirmed that the couple in the

photographs as shown to him, to be those traveling in the train

that day. This witness mentioned to have seen the lady to be

going to the toilet at about 12 o' clock in the night and had

returned and had sat on berth No. 55. While stating that the

lady was sitting on Berth No.55 at the time when he got down at

Barauni, the witness reiterated that she had been wearing a

light green colour salwar suit. He also stated that the couple

had been conducting themselves normally.

Page 30 30

31.Dr. Ram Rekha Sharan (PW8) was on 19.08.2007 posted

as Medical Officer at Katihar Sadar Hospital and had performed

the post-mortem examination of the dead body. This witness

stated with reference to the records that the body was almost

decomposed with maggot formation. He further mentioned that

there was absence of hair and disfigurement of the face and

that the right and left foot below the ankle joint were absent.

According to him, the exact cause of death could not be

ascertained and thus the viscera was preserved for forensic

tests. He also confirmed that sample for DNA test was also

preserved. In his opinion, the time lag between the death and

the post-mortem examination was more than six days. He

testified further that he had not found the external signs of

Sulphas in the dead body.

32.Alakh Deo Sharma (PW9), who was posted as ASI at

Azam Nagar Police Station on 18.08.2007 deposed, that one

Jyotish Chandra Sharma had at 1.00 P.M. on that day,

informed that a dead body of a female was lying in a bush,

about 250 yards east of the southern railway line and near his

Page 31 31

village Daulatabad. The witness stated that, on receiving this

information, the police arrived at the site and recovered the

dead body which was by then infested with insects. He deposed

that the dead body was thereafter sent to the Katihar Sadar

Hospital for post-mortem. He mentioned in categorical terms,

that the place where the dead body was found in the bush was

at a distance from the eastern railway line nearly 2 KM from

village Daulatabad and 2 KM from Azam Nagar Railway Station

under P.S. Azam Nagar. According to this witness, no blood

mark was found at that place and that the dead body was lying

prostrate. This witness however mentioned that the dead body

had on it clothes of white and pink colour. In

cross-examination, the witness stated about the visit of

Akhilesh Kumar, cousin of Ravi Shankar (PW2), the brother of

Archana at Katihar Station for identifying the dead body and

that on closely examining it, he had opined that it was not that

of Archana. The witness, referring to his case diary also

testified that the clothes found there on, when shown to the

family members of Archana, they confirmed that the same were

Page 32 32

not hers. The witness stated as well that nobody had come to

claim the dead body.

33.Shyam Bihari Upadhyay (PW10), who on 05.06.2008 was

the Director In-charge, Forensic Science Laboratory, Bihar,

Patna, has proven the DNA report, Exb. 8. He deposed that the

samples of the viscera of the dead body and the blood collected

from the parents of the Archana were received in connection

with Gandhi Maidan P.S. Case No. 308 of 2007 by his office on

05.06.2008. He testified that the three samples were analyzed

and the test revealed that the viscera tissue were the generic

product of the DNA profile of the blood samples of the parents

of Archana. The witness stated that the report was prepared by

one Sanjay Kumar, computer staff on his instruction and had

been signed by one Shiv Kumar, technician of FSL and also

counter signed by him. He explained that due to lack of

infrastructure in the FSL, Patna, outsourcing of the sample for

analysis was a usual process. He deposed that the technician

Shiv Kumar had been trained at Lab India, Gurgaon, by the

Directorate of Forensic Science, Ministry of Home Affairs,

Page 33 33

Government of India, and that the data collected from the tests

conducted was bought back to the FSL, Patna, whereafter the

report was issued after due analysis by him and Shiv Kumar.

PW10 also proved exhibit 15, the FSL report to the effect that

the viscera of the dead body also contained poisonous contents

like aluminum phosphate and LARAZEPAM, commonly known

as ACTIVAN .

34. In cross-examination, this witness conceded that he was

not an expert in DNA discipline and that he had not received any

training in that field. While affirming that the samples of viscera

and of the blood of the parents of Archana had been received

from Katihar Sadar Hospital, Patna, he admitted as well that the

same were not accompanied by any authentication card for DNA

test. He admitted that as per the processual norms, such an

authentication card was required to be sent along with samples,

which ensured the sanctity thereof. That an authentication card

also used to carry the photograph of the person giving the

samples for DNA testing was admitted. He also stated that as

per the procedure to be followed, the L.T.I. of the person giving

Page 34 34

the sample for DNA test is to be taken in presence of an

independent witness and is to be countersigned by the doctor

drawing the samples. The witness disclosed that due to lack of

facilities in the FSL, Patna, the DNA test had to be carried out

elsewhere. He admitted that there was a direction of the

Additional Director, CID that the samples should be sent only to

the government laboratory in case there was no infrastructure to

conduct the analysis in the FSL. According to him, he opted to

prefer a private laboratory, Lab India, Gurgaon, for the DNA test

as his staff was trained thereat. The witness also admitted that

he was not an expert in serology and that his evidence was not

in that capacity but as the Director of the FSL. He disclosed

that Shiv Kumar, who had been sent to the Lab India to be

associated with the analysis for the DNA test, had received

training in the said laboratory from 16 to 18

th

July, 2008, i.e. for

two days. He also stated that Shiv Kumar had conducted the

test with the help of the technician of the Laboratory, Lab India,

Gurgaon, and that he was also accompanied in the process by

one Santosh Kumar, a technician of the FSL, Patna. He

Page 35 35

admitted that the DNA was not conducted in his presence. He

conceded that he was not an expert in Toxicology and was thus

not in a position to state anything relating to that field of

science.

35. Kalpana Kumari (PW11), the Investigating Officer,

narrated the steps taken by her in the course of investigation

and stated that she submitted a charge-sheet against the

appellant under Section 498-A/34 IPC and had continued with

the process thereafter. She stated about the collection of the

sample of the viscera of the dead body and also that she had

applied for obtaining the blood specimens of the parents of

Archana by filling an application before the CJM, Patna.

According to her, on the permission so granted by the court on

30.05.2008, she accompanied the parents of Archana to the

Rajvanshi Hospital, where their blood samples were collected by

Dr. Ashok Kumar and Dr. Ajit Kumar. She stated that

thereafter, she made an application to the Director, FSL, Patna

for DNA test and subsequent thereto forwarded the sample of

the viscera and of the blood drawn from the parents of Archana.

Page 36 36

According to her, on receipt of the report of the DNA test and on

completion of the investigation, she submitted charge-sheet

under Sections 304B and 201 IPC as well against the appellant.

36. In cross examination, this witness with reference to

the case diary, stated that the complainant, Malti Devi (PW3)

and her husband PW1 had been in continuous touch with the

investigation carried out in Mokamah G.R.P.S. case. She stated

that there was no allegation of demand of dowry from Archana

or her parents or that the appellant had ever harassed her for

dowry. She stated by referring to the case diary that the

complainant PW3 had not expressed anything about the

appellant as to any demand for dowry or any cruel treatment to

Archana. She also made a mention of a diary of Archana

produced by Mokamah G.R.P.S. and stated that though she had

demanded the same, it was not made available to her. The

witness also confirmed with reference to the case diary that

PW1, the father of Archana had not made any allegation against

the appellant with regard to demand of dowry or cruelty to her.

The witness also stated that PW1 had not made any statement

Page 37 37

that the appellant had asked him to purchase units of Mutual

Fund amounting to Rs. 5,00,000/-. That he also did not make

any statement that the appellant had opened any joint account

in the name of Archana and himself in the State Bank of India

Branch at Exhibition Road, Patna on 21.07.2007 was made as

well. The Investigating Officer also deposed that on enquiries

being made by her in the neighborhood of the place of the

incident as well as from the tenants of the house of the

appellant nobody did complain of any harassment meted out to

Archana by the appellant and his family. She also failed to

recollect as to whether she had put her signatures on the

envelope carrying the samples, as a witness. She however

candidly admitted that she had not recorded in the case diary

that she had put her signatures on the envelope containing the

blood samples. She also stated that the envelope carrying the

blood samples was sent by her directly to the FSL and not

through the court. The Investigating officer though mentioned

that she along with the parents of Archana had been to

Rajvanshani Nagar Hospital, Patna on 4.6.2008 and that Ashok

Page 38 38

Kumar and Ajit Kumar had collected their (parents of Archana)

blood samples in a sealed cover, she admitted to have omitted

to mention in the case diary that the samples were taken in her

presence by the doctor.

37. Shambu Prasad Tiwari (PW12), Assistant Sub

Inspector of Police, Mokamah G.R.P.S. produced the articles

sealed in connection Mokamah G.R.P.S. Case No. 26 of 2007

which included a pair of brown coloured sleepers and ladies

purse containing Rs. 134 in cash together with a face cream,

comb, bindi, mirror and a hair band.

38. In his statement under Section 313 Cr.P.C., the

appellant categorically denied the veracity of the evidence with

regard to alleged pressurization of Archana to bring Rs. 2.5

lakhs from her parents for the construction of their house and

the ill-treatment meted out to her collectively by him and his

parents and relatives. He also denied the imputation to have

taken Archana to Darjeeling without the permission of her

parents. He also denied the accusation that he had planned

the tour with an ulterior motive and that to secure the same,

Page 39 39

he had got purchased units of mutual fund by the brother of

Archana to be eventually appropriated by him. He denied as

well the evidence, that he had opened a joint account with

Archana to facilitate the deposit of the investments in mutual

funds and had pressurized her parents for making deposits

with regard thereto. In specific terms, he particularly denied

the allegation that on their way back from the tour on

14.8.2007 by Capital Express, he had committed murder of

Archana and had thrown her dead body on the railway tracks

near Daulatabad which fell within the limits of Azamnagar

Police Station. He also stoutly refuted the imputation that he

had made Archana to consume poisonous substance on the

way from New Jalpaiguri by the Capital Express so as to

facilitate her murder. He however admitted to have lodged a

complaint with the Mokamah G.R.P.S. which was registered as

Mokamah G.R.P.S. Case No. 26 of 2007 which he asserted to

contain the true version of the episode. He expressed

ignorance about the DNA test report and denied the allegation

of conspiracy with his parents and other relations to murder

Page 40 40

Archana for greed of money. To the charge that he had not

gone to identify the dead body, he stated that he had been

prevented from doing so being detained by the Mokamah

Police. He alleged that his father-in-law, who was at the

relevant time, posted as Additional District Judge had misused

his office and had in connivance with the railway police got a

wrong report submitted against him under Sections 182/211

of IPC.

39. The evidence of the defence witnesses Shiv Kumar

(DW1), Suman Sinha (DW3) is in essence to the effect that the

couple had been living a happy married life in the marital

home. Nazir Hussain (DW2), who was at the time of his

deposition, Service Manager in the State Bank of India, branch

at Exhibition Road, Patna stated against any deposit in the

joint account of the appellant and Archana from Tata Mutual

Fund. Kundan Kumar Singh (DW4), who at the relevant point

of time, was posted as SHO, Mokamah G.R.P.S., testified with

reference to his case diary that the appellant on 15.8.2007 had

lodged a written report at 11.40 A.M. on the basis of which

Page 41 41

Mokamah G.R.P.S. case No. 26 of 2007 under Section 365 IPC

was registered . He stated that in course of investigation that

followed he recorded the statements of PWs 1,2 & 3 on

16.8.2007 in course whereof Ravi Shankar Parsad (PW2), the

brother of Archana had disclosed that there was no dissension

between the parties. He also mentioned that Subhash Chander

Prasad (PW1), father of the Archana had stated that he did not

doubt his son-in-law, the appellant. The witness also deposed

that the father of Archana did not give any statement to the

effect that appellant used to harass his daughter and used to

demand dowry. While affirming from his case diary, that PWs

5,6 and 7 were indeed amongst the passengers who were

traveling in the Capital express on 14.8.2007, he also

mentioned that the TTE of the coach S-1 Hari Shankar Prasad

had stated that Archana was wearing a green coloured dress.

He also mentioned that Naveen Kumar Mishra (PW7) also

reaffirmed that Archana was wearing a green coloured dress.

He with reference to the case diary confirmed the version of

Page 42 42

Akhilesh Kumar that the dead body of the female was not that

of Archana.

40. Bajrang Singh (DW5) was on 15.8.2007 posted as ASI

at Mokamah G.R.P.S. and was ordered, as a part of

investigation to visit, New Jalpaiguri, Gangtok, and Darjeeling

to enquire about the missing female. He stated that

photographs of the couple had been given to him for the

purposes of the enquiry and that on the investigation being

made, the proprietors/managers of the concerned travel

agencies and hotels at these places confirmed that the couple

had availed their services/facilities between 11.8.2007 and

14.8.2007. This witness stated to have recorded the

statements of Hari Shankar Prashad, TTE of coach S-1 of

Capital Express on 14.8.2007 who recognized the couple from

the photograph and affirmed that he had seen both of them

travelling up to Katihar. He proved his case diary as Exh. 24.

Page 43 43

41. Having regard to the overall factual conspectus the

searching queries warranted for the judicial scrutiny in the

attendant facts and circumstances can be listed as hereunder:

1.Whether Archana had died out of burns or

bodily injuries or whether her death had

occurred otherwise than in normal

circumstances?

2.If such death is proved, whether it could be

accidental and neither suicidal nor

homicidal?

3.Whether soon before her death, she had

been subjected to cruelty and harassment by

the appellant and any of his relatives for or in

connection with demand for dowry?

42. Undisputedly, the marriage of the couple had been

solemnized on 29.4.2007 and thus the unfortunate incident

had occurred within seven years therefrom. They had been

returning from their honeymoon trip when the catastrophe

intervened. That in the fateful evening of 14.8.2007 they

were travelling by Capital Express which they had boarded

at New Jalpaiguri and were heading for their nuptial home

at Patna is not in dispute. The train schedule of Capital

Page 44 44

Express which they had availed, is a part of the record. The

authenticity of the train schedule of Capital Express has

not been controverted. As has been adverted to hereinabove,

the prosecution witnesses PWs 5, 6 and 7, who were also

travelling in the same compartment, had seen the couple

together up to Katihar/Barauni. Kishan Tiwari (PW4), who

was also a passenger, had seen her till Barauni junction.

The dead body of female, sought to be identified to be that of

Archana by the prosecution was recovered by the railway

track in a bush near Azamnagar Police Station.

43.A cursory glance of the train schedule would disclose

that the distance between Azamnagar junction and Katihar

junction is about 43 K.M.s and the time taken to cover the

same is 1 hour 49 minutes. In between Katihar junction

and Barauni junction, there are 12 stations. Between

Barauni junction and Bakhtiarpur junction, there are

amongst others, Mokamah junction and Barh. The train

schedule further evinces that the distance between

Bakhtiarpur junction and Patna junction is 45 k.m. which

the train is to cover in 1 hour 23 minutes.

Page 45 45

44.If the testimony of PWs 5, 6 and 7 in particular is to

be believed, Archana was with her husband, the appellant,

in the train till Barauni junction which is several stations

away from Azamnagar Station and distanced by a journey of

approximately 6 &1/2 hours. Axiomatically therefore, from

the consistent evidence of these witnesses, who have not

been declared hostile by the prosecution, it is very unlikely

that the dead body recovered near Azamnagar station could

have been, to start with, that of Archana.

45.Noticeably, neither the parents of Archana nor any of

her family members had claimed that the dead body is of

hers. Significantly as well, the letter dated 14.9.2008

addressed by Akhilesh Kumar Singh, to the Station House

Officer, Mokamah G.R.P.S., divulges in clear terms that on

repeated survey of the dead body, he had in clear terms

opined that it was not of Archana and had cited as many as

nine reasons in support of his unqualified conclusion to that

effect. These having been once extracted hereinabove, for

the sake of brevity the repetition thereof is avoided. Suffice it

Page 46 46

to mention, the reasons cited touch upon the physical

features as well as the wearing clothes of the dead body in

support of the said deduction. It is worthwhile to notice that

Akhilesh Kumar had not been examined by the prosecution

for reasons best known to it.

46. The finding recorded in the post-mortem report as

to the probable time of death also compounds the mounting

difficulties of the prosecution. Apart from being silent about

the cause of death of the female whose dead body was

subjected to autopsy, it is mentioned in no uncertain terms

that time lag between the death and the post-mortem

examination was more than six days. Arithmetically, thus

death had occurred to the female concerned prior to

13.8.2007 which argumentatively as well suggests to rule out

the possibility that it was that of Archana as she was alive

and travelling in Capital Express in the intervening night of

14.8.2007 and 15.8.2007 much past the Azamnagar Station.

Dr. Ram Rekha Suma PW8), who had conducted the

post-mortem, has also affirmed in his testimony, the margin

Page 47 47

of time between the death and the post-mortem examination

of the dead body to the above effect.

47.Apart from the above, there is inconsistency in the

description of the wearing apparels of Archana and that of

the dead body. Whereas PWs 5,6 and 7 have in unison

deposed that she had been wearing a green coloured salwar

suit, the inquest report on the dead body disclosed that a

white and pink salwar sameej was found on the dead body.

Whereas the prosecution had made an endeavour to prove

that the wearing clothes of the dead body were that of

Archana, her family members on being shown the same, had

in categorical terms denied that those were hers as is

evident from the testimony of Alakh Dev Sharma (PW9), SI,

Azamnagar Police Station.

48.It is a matter of record that the report of the FSL did

disclose that the viscera of the dead body did contain highly

poisonous substance as mentioned therein. Having regard to

the fact that Archana, in the company of the appellant, while

travelling throughout the evening and as seen by the

Page 48 48

prosecution witnesses PWs 5,6 and 7 was overall in a normal

state, neither restive nor irritating, pungent or sick, it was

the burden of the prosecution to establish as to how and

when she was administered poison, in order to substantiate

that the dead body recovered was of hers. There is no

semblance of either an endeavour or any evidence in this

regard.

49.The above notwithstanding the sheet anchor of the

prosecution case is the report of the DNA test to the effect

that the sample of the tissue of the viscera of the dead body

was the generic product of the parents of Archana. The

relevant extract of the report Exh.14 is extracted

hereinabelow.

“ From the above analysis, it is concluded that

D.N.A. profile to the exhibit marked ‘A” is generic

produced of D.N.A. profile of exhibits marked ‘B’

and ‘B1’.”

50.This report has been sought to be proved through Dr.

Shyam Bahadur Upadhyay (PW10), who on the date of the

receipt of the sample was the Director In-charge, FSL, Patna.

Page 49 49

Significantly, though in terms of Section 293 Cr.P.C. the

report being one from the government scientific expert, the

same could have been per se used as evidence in the trial by

the trial court in its discretion, the prosecution had

voluntarily offered this witness to prove the same. A bare

perusal of the contents of the report as a whole, however,

does not disclose any scientific data on which the above

conclusion had been arrived at. It is also patent from the

testimony of PW10 that the samples were not analyzed at the

laboratory of FSL, Patna but had been forwarded to a private

laboratory i.e. Lab India. It has been admitted by the

witness, that he has no expertise in the discipline of DNA

test/serology and he himself was not present when the

analysis was conducted. He admitted to have sent a

technician named Shiv Kumar, who had taken two days

training in the same laboratory, to undertake the exercise.

The prosecution has omitted to examine Shiv Kumar to

establish clearly the process that was pursued to conduct the

analysis. The evidence with regard to collection of blood

Page 50 50

samples of the parents of Archana is shaky and

unconvincing as well. The samples, as the PW11

Investigating Officer has admitted, have been forwarded by

her directly without routing the same through the court. The

witness(PW10) has admitted as well, that in case facilities for

such analysis are not available with the FSL, Patna, as per

the prevalent official terms, the same should be got tested in

another government laboratory.

51.The evidence of this witness thus does not provide the

details of the tests undertaken in support of the conclusion

as recorded in the report. The samples were not

accompanied by the authentication card for DNA test as was

necessary. This assumes significance as the authentication

card has to have the photograph of the person(s) offering the

samples for DNA test. This witness conceded that he was not

deposing as an expert of DNA but in the capacity of Director,

FSL alone. The DNA test report and the evidence of PW10,

in view of the shortcomings and deficiencies noticed

hereinabove, thus fail to inspire the confidence of this Court

Page 51 51

to accept the same as the basis to hold that the dead body

was that of Archana.

52.The above factors, if taken cumulatively, we are

constrained to hold that the prosecution has failed to prove

beyond reasonable doubt that the dead body retrieved from

the bush near the railway tracks in the vicinity of

Azamanagar Police Station was that of Archana.

53.The authorities cited on behalf of the respondents with

regard to the applicability of Sections 293 Cr.P.C. in support

of the probative worth of the DNA test report sans the

evidence of PW10 are distinguishable on the facts and are

thus of no avail to them. The prosecution having examined

PW10, it not only suggests that it was unsure of the DNA

test report by itself, further it having taken that initiative, it

cannot be permitted to forsake the testimony of this witness

and fall back only on the report in support of its case. As it

is the DNA test report being bereft of the particulars of the

tests conducted and the results thereof permitting the

conclusion arrived at, is not a self contained one and ipso

Page 52 52

facto also does not meet the requirements of an expert

opinion to decisively conclude that the dead body was that of

Archana. It would thus be wholly unsafe to rely on this

document to conclude that the dead body was that of

Archana. Consequently, on the basis of the investigation

and the materials produced, the prosecution has failed to

prove the factum of death of Archana.

54. Before parting with this issue, it would be relevant

to record as well that Malti Devi (PW3) the mother of

Archana had also filed a writ petition seeking a writ of

habeas corpus in the year 2008 before the High Court at

Patna which on 8.9.2008, having regard to the ongoing

investigation in the Gandhi Maidan P.S. Case No. 208 of

2007, was dismissed. This move on the part of the PW3

though understandably was a desperate bid to locate her

missing daughter, is equally suggestive of the fact that she

along with her family was not fully convinced that the dead

body was that of hers.

Page 53 53

55. Be that as it may, to complete the adjudicative

pursuit, it would next be relevant to assay the aspect of

cruelty or harassment to Archana by the appellant or his

family members for or in connection with any demand for

dowry soon before the incident of her mysterious

disappearance. A plain perusal of the testimony of the

investigating officers involved, indicates that prior to the

complaint dated 5.9.2007, no allegation of cruelty or

harassment for or in connection with dowry demand had

been made against the appellant or his family members. The

testimonies of Kalpana Kumari (PW11) and Kundan Kumar

Singh(DW4) in particular are in ample support of this

determination. Even the contents of the complaint dated

5.9.2007 do not unassailably establish cruelty or harassment

for or in connection with dowry demand as contemplated by

Sections 498A and 304B IPC when juxtaposed with the

testimony of the PW11 and DW4. Both the father and the

brother of Archana in their depositions have admitted as well

that the money invested in the mutual funds had neither

Page 54 54

been withdrawn by the appellant nor had been diverted for

his use or appropriation. Queerly, a diary said to have been

written by Archana had been seized by the police in the

course of investigation by Mokamah G.R.P.S. and was

claimed to have been seen by PW1 as well. This diary has not

been produced at the trial and as complained by the

Kalpana Kumari (PW11), Investigation Officer, it had not

been handed over to her as well even when sought for. In

this premise, the improvement in the versions of Subhash

Chandra Prasad (PW1), Ravi Shankar Prasad (PW2) and Malti

Devi (PW3) with regard to demand for dowry and ill-treatment

do not commend for acceptance. All these, in a way fade

into insignificance as well in the face of failure of the

prosecution to prove the death of Archana.

56.Having regard to the contents of the complaint dated

5.9.2007, there have been visible improvements with regard

thereto at the trial which make these imputations

untrustworthy on this ground also. Though the conduct of

the appellant in not informing the parents of Archana in time

Page 55 55

about the episode and in lodging the complaint at Mokamah

G.R.P.S. belatedly has been severely condemned and viewed

to be a part of the plot to cover up his misdeeds in

collaboration with his family members, we are constrained to

conclude that in absence of any overwhelming evidence in

support of such perception, such an indictment cannot be

entertained. Besides the fact that individuals react

differently at varying situations, it was not unlikely that the

appellant having found Archana missing from her berth while

the train was nearing Bakhtiarpur, in the early morning, he

had made frantic searches for her in the train and in the

process, had reached Patna junction. His version that he

being in a bewildered and anxious state of mind had been

directed at Patna to lodge the FIR at Mokamah G.R.P.S.

and that he eventually did file his complaint, there cannot

per se be brushed aside to be a contrivance on his part to

delay or misdirect the investigation in the matter.

Incidentally, the mother of Archana had talked to him over

cell phone while he was at Mokamah and on the instructions

Page 56 56

of Subhash Chandra Prasad (PW1), the complaint was lodged

at Mokamah G.R.P.S.. The statement of Ravi Shankar

Prasad (PW2) that he had been threatened by the appellant

to withdraw the case also does not merit acceptance as he

had admitted that he neither informed about this

intimidation to the police nor did he take follow up steps in

connection therewith.

57 Even assuming that the suggested case of the

prosecution is that the appellant had administered poison to

Archana after the train had reached Katihar junction and

that thereafter he had disposed of her moribund body out of

the running train, it is very unlikely that these activities

would have gone unnoticed by any of the passengers in the

packed compartment of a sleeper coach. This is also in view

of the short duration runs of the train through the

intervening stations with intervals of an average of 15

minutes in between, in course whereof it might have stopped

to enable the passengers to alight and disembark. In all, in

Page 57 57

our comprehension, such a proposition is wholly incredible

and in defiance of logic.

58.In the facts of the present case, the presumption

engrafted under Sections 304B IPC and 113B of the Indian

Evidence Act is not available to the prosecution as the

essential foundational facts to trigger such presumption have

remained unproved. The prosecution has failed to establish

beyond reasonable doubt the death of Archana. To reiterate,

the evidence as a whole bearing on dowry demand and

harassment or ill-treatment in connection therewith, is also

not convincing.

59.On a cumulative scrutiny of the evidence on record, we

are thus constrained to hold that in the facts and

circumstances of the case, the prosecution has failed to prove

the charge under Sections 304B/498A/201 IPC against the

appellant. The courts below, in our estimate, have failed to

examine and evaluate the evidence on record in the right

perspective both factual and legal and thus have grossly

Page 58 58

erred in returning a finding of guilt against him on the above

charges.

60.It is well entrenched principle of criminal jurisprudence

that a charge can be said to be proved only when there is

certain and explicit evidence to warrant legal conviction and

that no person can be held guilty on pure moral conviction.

Howsoever grave the alleged offence may be, otherwise

stirring the conscience of any court, suspicion alone cannot

take the place of legal proof. The well established cannon of

criminal justice is “fouler the crime higher the proof”. In

unmistakable terms, it is the mandate of law that the

prosecution in order to succeed in a criminal trial, has to

prove the charge(s) beyond all reasonable doubt.

61.The above enunciations resonated umpteen times to be

reiterated in Raj Kumar Singh @ Raju @ Batya vs. State

of Rajasthan (2013) 5 SCC 722 as succinctly summarized in

paragraph 21 as hereunder:

“21. Suspicion, however grave it may be, cannot take

the place of proof, and there is a large difference

between something that “may be” proved and “will be

Page 59 59

proved”. In a criminal trial, suspicion no matter how

strong, cannot and must not be permitted to take place

of proof. This is for the reason that the mental distance

between “may be” and “must be” is quite large and

divides vague conjectures from sure conclusions. In a

criminal case, the court has a duty to ensure that mere

conjectures or suspicion do not take the place of legal

proof. The large distance between “may be” true and

“must be” true, must be covered by way of clear, cogent

and unimpeachable evidence produced by the

prosecution, before an accused is condemned as a

convict, and the basic and golden rule must be applied.

In such cases, while keeping in mind the distance

between “may be” true and “must be” true, the court

must maintain the vital distance between conjectures

and sure conclusions to be arrived at, on the touchstone

of dispassionate judicial scrutiny based upon a complete

and comprehensive appreciation of all features of the

case, as well as the quality and credibility of the

evidence brought on record. The court must ensure that

miscarriage of justice is avoided and if the facts and

circumstances of a case so demand, then the benefit of

doubt must be given to the accused, keeping in mind

that a reasonable doubt is not an imaginary, trivial or a

merely probable doubt, but a fair doubt that is based

upon reason and common sense .”

[Emphasis laid by the Court]

62.In supplementation, it was held in affirmation of the

view taken in Kali Ram vs. State of H.P. (1973) 2 SCC 808

that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the other to

his innocence, the view which is favourable to the accused

should be adopted.

Page 60 60

63.In terms of this judgment, suspicion, howsoever grave

cannot take the place of proof and the prosecution case to

succeed has to be in the category of “must be” and not “may

be”. a distance to be covered by way of clear, cogent and

unimpeachable evidence to rule out any possibility of

wrongful conviction of the accused and resultant

mis-carriage of justice. For this, the Court has to essentially

undertake an exhaustive and analytical appraisal of the

evidence on record and register findings as warranted by the

same. The above proposition is so well-established that it

does not call for multiple citations to further consolidate the

same.

64.Whereas in Sultan Singh (supra), this Court had

propounded that a presumption under Section 113-B of the

Evidence Act is attracted only in case of suicidal or

homicidal death and not in the case of an accidental death, it

was proclaimed in Sher Singh (supra) that the harassment

and cruelty by the husband has to have a perceptible

Page 61 61

connection with the dowry demand for his prosecution and

punishment under Section 304B IPC.

65.In his treatise, “The Law of Evidence”, Professor Ian

Dennis while dwelling on the theme of allocation of burden in

criminal cases, elaborated on the significance and purport of

presumption of innocence and the general rule of the burden

of proof. While reiterating the fundamental notion of

criminal jurisprudence, that a person is presumed to be

innocent until proven guilty and that the burden of proof in a

criminal case is on the prosecution to establish the guilt of

accused beyond reasonable doubt, the author underlined

that the acknowledged justification of such presumption is

that the outcome of a wrong conviction is regarded as a

significantly worse harm than wrongful acquittal.

66.Viewed from the moral and political perspectives, it has

been observed that in liberal states, the rule about the

burden of proof has been elevated to the status of

fundamental human right encompassing the assurance of

liberty, dignity and privacy of the individual and from this

Page 62 62

standpoint it is essential that the state should justify fully

its invasion of the individual’s interest by proving that he had

committed an offence, thereby abusing the freedom of action

accorded to him or her by the liberal state. The significance

of such presumption finds insightful expression in the

following extract of State Vs. Coetzee [1997] 2 L.R.C.593,

South African Constitutional Court in the words of Sachs,J.:

“There is a paradox at the heart of all criminal

procedure in that the more serious the crime

and the greater the public interest in securing

convictions of the guilty, the more important do

constitutional protections of the accused

become. The starting point of any balancing

enquiry where constitutional rights are

concerned must be that the public interest in

ensuring that innocent people are not

convicted and subjected to ignominy and heavy

sentences massively outweighs the public

interest in ensuring that a particular criminal

is brought to book …. Hence the presumption

of innocence, which serves not only to protect a

particular individual on trial, but to maintain

public confidence in the enduring integrity and

security of the legal system. Reference to the

prevalence and severity of a certain crime

therefore does not add anything new or special

to the balancing exercise. The perniciousness

of the offence is one of the givens, against

which the presumption of innocence is pitted

from the beginning, not a new element to be

put into the scales as part of a justificatory

Page 63 63

balancing exercise. If this were not so, the

ubiquity and ugliness argument could be used

in relation to murder, rape, car-jacking,

housebreaking,drug-smuggling, corruption…

the list is unfortunately almost endless, and

nothing would be left of the presumption of

innocence, save, perhaps, for its relic status as

a doughty defender of rights in the most trivial

of cases.”

The quintessence of the philosophy embedded in the above

extract is that the presumption of innocence serves not only

to protect a particular individual on trial but to maintain

public confidence in the enduring integrity and security of

the legal system.

67.The evidence adduced by the prosecution dominantly is

circumstantial in nature with no direct proof of the

perpetration of the alleged offence by the appellant. It is a

trite proposition, judicially evolved, that circumstantial

evidence if is to form the basis of conviction must be such so

as to rule out every possible hypothesis of innocence of the

accused and must without any element of doubt unerringly

point to such culpability. This enunciation has stood the test

of time over the years and the five golden principles

Page 64 64

propounded by this Court in Sharad Birdhichand Sarda

vs. State of Maharashtra (1984) 4 SCC 116 (paragraph

153) which still authoritatively govern the process of

appreciation of the circumstantial evidence and constitute

the acid test to determine the guilt or innocence of an

accused person, are quoted hereunder:

“153. A close analysis of this decision would show

that the following conditions must be fulfilled before

a case against an accused can be said to be fully

established:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be

fully established.

It may be noted here that this Court indicated that

the circumstances concerned “must or should” and

not “may be” established. There is not only a

grammatical but a legal distinction between “may be

proved” and “must be or should be proved” as was

held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra where the following

observations were made: (SCC p. 807, para 19)

“19. … Certainly, it is a primary principle that

the accused must be and not merely may be

guilty before a court can convict and the

mental distance between ‘may be’ and ‘must

be’ is long and divides vague conjectures from

sure conclusions.”

(emphasis in original)

(2) the facts so established should be

consistent only with the hypothesis of the guilt

of the accused, that is to say, they should not

Page 65 65

be explainable on any other hypothesis except

that the accused is guilty,

(3) the circumstances should be of a

conclusive nature and tendency,

(4) they should exclude every possible

hypothesis except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in all human probability the act must have

been done by the accused.”

The theory of “last seen together” as an incriminating factor

qua the appellant is, thus of no avail to the prosecution

having regard to the state of evidence on record.

68.The following extract from paragraph 1504 of Corpus

Juris Secundum , Volume 23, in our comprehension

synopsises the pronounced judicial opinion with regard to

the quality of circumstantial evidence to decisively prove and

establish the guilt of an accused person in a criminal case.

“While in order to sustain a conviction on

circumstantial evidence, all of the circumstances

proved must be consistent with guilt

1

,

circumstantial evidence will not support a

1

Fla-Garcia v. State, 899 So. 2d 447 (Fla. Dist. Ct. App. 4

th

Dist. 2005)

Tenn – State vs. Toomes, 191 S.W.3d 122

Va-Tooke v. Com. 47 Va. App. 759, 627 S.E.2d 533 (2006)

Page 66 66

conviction if it is merely consistent with guilt

2

or

creates merely a suspicion of guilt

3

. If the

circumstantial facts proved can be reconciled

either with the theory of innocence or with the

theory of guilt, the theory of innocence must be

adopted and any conviction must be reversed

4

,

even though the theory of guilt is the more

probable

5

. In other words, in circumstantial

evidence cases, if the evidence viewed in the light

most favorable to the prosecution gives equal or

nearly equal circumstantial support to a theory of

guilt and a theory of innocence of the crime

charged, then a reasonable jury must necessarily

entertain a reasonable doubt

6

.

69.In the wake of the determination made hereinabove, we

are of the unhesitant opinion, that it would be wholly

unjustified to uphold the conviction of the appellant for the

offences charged on the basis of the evidence, oral and

documentary adduced by the prosecution. We are thus

inclined to exonerate him of the charges. The appeal thus

succeeds. The conviction and sentence of the appellant is

2

N.Y.-People vs. Squillante, 18 Misc. 2d 561, 185 N.Y.S.2d 357 (Sup 1959).

3

Va.-Littlejohn v. Com., 24 Va. App. 401, 482 S.E.2d 853 (1997)

4

U.S.-U.S. v. Reveles, 190 F.3d 678 (5

th

Cir. 1999).

5

N.C.-State vs. Potter, 252 N.C. 312, 113 S.E.2d 573 (1960).

6

Miss. –Shields v. State. 702 So. 2d 380 (miss. 1997).

Page 67 67

set-aside and he is ordered to be set at liberty, if not wanted

in an connection with any other case.

70.Judicial restraint albeit a self imposed regulation, is

the hallmark of functional propriety ensuring uniformity in

approach and certitude in curial determinations.

71.Distraught though one would be, by the calamitous

incident, judicial adjudication has to be assuredly guided by

the recognized legal dicta and cannot be swayed by

emotional or sentimental surges. Justice has to be

administered essentially in accordance with law and

uninfluenced by individual predilections, notions, and

prejudices. Be that as it may, judged on the touch stone of

the acknowledged and time tested fundamental principles of

criminal jurisprudence, we cannot, but have to conclude that

the charge against the appellant has remained unproved.

72. Before parting, we cannot but wish to dwell on a

substantially disquieting feature of the case namely; the

shoddy, casual, laconical and insensitive investigation

conducted by the police. In course of our adjudicative audit,

Page 68 68

several shortcomings and pitfalls in the process have been

noticed. To recall, the diary of Archana, though seized, had

not been produced at the trial. The evidence of Akhilesh

Kumar, who had opined that the dead body was not that of

Archana, was withheld. Ashok Kumar and Ajit Kumar who

supposedly had drawn the blood samples of parents of

Archana have not been examined. Shiv Kumar, Technician,

FSL, Patna who, as claimed by the prosecution, had

conducted the DNA test, was not produced. The DNA test

was not carried out in a government laboratory and instead

was done at a private laboratory in violation of the norms.

Dr. Shyam Bahadur Upadhaya (PW10), who was examined in

connection with the DNA test, admittedly had no expertise in

the line and his evidence is, thus, for all intents and

purposes of no utility. No searching effort was made by the

Investigating Officer to ascertain when and how and by

whom poison was administered as found in the viscera of

the dead body. Investigation is also wanting in the matter of

identification of the dead body and the prosecution relied on

Page 69 69

inferences, conjectures and surmises to connect the

appellant with the crime. The investigation in the case,

therefore, has left gaping cracks in it incapable of being

sealed or mended.

73. The investigating agency as the empowered

mechanism of the law enforcing institution of the State is

entrusted with the solemn responsibility of securing the

safety and security of the citizens and in the process, act as

the protector of human rights. The police force with the

power and resources at its disposal is a pivotal cog in the

constitutional wheel of the democratic polity to guarantee

the sustenance of an orderly society. It is usually the first

refuge of one in distress and violated in his legal rights to

seek redress. The police force, thus is bestowed with a

sacrosanct duty and is undisputedly required to be

impartial, committed and relentless in their operations to

unravel the truth and in the case of a crime committed, make

the offender subject to the process of law. The investigating

agency, thus in the case of a probe into any offence has to

Page 70 70

maintain a delicate balance of the competing rights of the

offenders and the victim as constitutionally ordained but by

no means can be casual, incautious, indiscreet in its

approach and application. A devoted and resolved

intervention of the police force is thus an assurance against

increasingly pernicious trend of escalating crimes and

outrages of law in the current actuality.

74.As a criminal offence is a crime against the society, the

investigating agency has a sanctified, legal and social

obligation to exhaust all its resources, experience and

expertise to ferret out the truth and bring the culprit to book.

The manifest defects in the investigation in the case

demonstrate an inexcusable failure of the authorities

concerned to abide by this paramount imperative.

75. This Court, amongst others, in Amitbhai

Anilchandra Shah vs. Central Bureau of Investigation

and another (2013) 6 SCC 348, while underlining the

essentiality of a fair, in-depth and fructuous investigation

had observed that investigating officers are the kingpins in

Page 71 71

the criminal justice system and reliable investigation is a

leading step towards affirming complete justice to the victims

of the case. It was ruled that administering criminal justice

is a two-end process, where guarding the ensured rights of

the accused under the Constitution is as imperative as

ensuring justice to the victim. It was held that the daunting

task, though a compelling responsibility, is vested on the

court of law to protect and shield the rights of both. That a

just balance between the fundamental rights of the accused

guaranteed under the Constitution and the expansive power

of the police to investigate a cognizable offence has to be

struck by the Court was emphatically underlined. We are left

appalled by the incomprehensible omissions of the

investigating agency in the instant case and we would expect

and require that the authorities in-charge of ensuring fair,

competent and effective investigation of criminal offences in

particular would take note of this serious concern of the

Court and unfailingly take necessary remedial steps so much

Page 72 72

so that these observations need not be reiterated in future

entailing punitive consequences.

….....…....................................J.

(V. GOPALA GOWDA)

…............................................J.

(AMITAVA ROY)

NEW DELHI;

DECEMBER 16, 2015.