CR. APP (DB)/104/1994 of GABAJ YADAV @ GABAJ JADAV and ORS Vs STATE OF BIHAR on 9 March 1994

1. Gabaj Yadav @ Gabaj Jadav

2. Shiv Narain Yadav @ Sheo Narain Prasad Yadav Both sons of late Govind Yadav.

3. Lalita Devi, wife of Sheo Narain Yadav All residents of Village-Maharajganj, P.S.- Murliganj, DistrictMadhepura.

The State Of Bihar

Versus

Appellants

... ... Respondents

======================================================CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

and

HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGHCAV JUDGMENT(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)

Date : 22-12-2020

1. All the above named appellants have been convicted for the offences punishable under Section 302/34 of the I.P.C. and¾ of Dowry Prohibition Act and accordingly, they have beensentenced to undergo rigorous imprisonment for life under Section 302/34 of the I.P.C., to undergo rigorous imprisonment for oneyear under Section 3 of D.P. Act and to undergo rigorousimprisonment for one year under Section 4 of D.P. Act. All thesentences were ordered to run concurrently.

2. It is pertinent to note here that one Nawal Yadav andMeera Kumari also stood charged for the offences punishableunder Section 302/34 of the I.P.C. and ¾ of Dowry Prohibition Actalong with the appellants but above stated Nawal Yadav and MeeraKumari were acquitted of the charges by the impugned judgment.

3. The appellants, being aggrieved by the impugnedjudgment of conviction and sentence order dated 24.02.1994passed by learned 1st Additional Sessions Judge, Madhepura inSessions Case No. 65 of 1989, have preferred the present appeal.

4. PW-18, namely, Janardan Paswan, chowkidar ofMurliganj police station, gave his ferdbeyan on 20.07.1987 atabout 10:00 A.M. at Murliganj police station before the officer incharge of concerned police station to this effect that in previousnight at about 4:00 A.M., one Banke Yadav informed him that oneNawal Yadav of Village Maharajganj and his parents burnt to deathwife of Nawal Yadav. He further claimed that having received theaforesaid information, he went to village Maharajganj where hemet Sarpanch Domi Ram (PW-11), Mukhiya Chandeshwari Yadav, chowkidar Nemani Paswan, chowkidar Mogi Paswan etc. Theaforesaid persons told him that Nawal Yadav along with hisparents burnt to death his wife. He further claimed that he went tothe house of Nawal Yadav where he saw dead body of thedeceased lying in the house having burnt injuries. The dead bodywas covered with cloth. He removed the cloth from the dead bodyand noticed burn injuries on whole body of the deceased. Hefurther claimed that Sarpanch and Mukhiya ordered him to go topolice station and give information that Nawal Yadav committedthe murder of his wife by putting her on fire. He further claimedthat marriage of deceased with Nawal Yadav had taken place sevenyears ago but there was some differences between appellant GajabYadav and Krishna Ballabh Yadav, father of the deceased on thepoint of dowry and ten days prior to death of the deceased aPanchayati was held between natal people of the deceased as wellas appellants. He further claimed that on 10.07.1987 Nawal Yadavbrought his wife (deceased) to his home but subsequently, he burnther to death.

5. On the basis of ferdbeyan of PW-18, Murliganj P.S.Case No. 188 of 1987 under Section 302/34 of the I.P.C. wasregistered against appellant Gajab Yadav and Nawal Yadav.

6. PW-20 Abdul Raquibe took charge of investigation.He recorded the further statement of PW-18, inspected the place ofoccurrence, recorded the statements of witnesses, sent the deadbody for postmortem examination. In course of investigation,Section ¾ of Dowry Prohibition Act was inserted and accordingly,on the order of Superintendent of Police he handed over charge ofinvestigation to PW-21, Dwarika Prasad Singh, the then DeputySuperintendent of Police, Madhepura.

7. PW-21 also went to the place of occurrence and aftercompletion of investigation, he submitted charge sheet against theappellants and others.

8. The case was committed to the court of sessions inusual way and accordingly, appellants along with charge sheetedaccused Nawal Yadav and Meera Kumari were put on trial.Appellants and above stated two co-accused stood charged for theoffences punishable under Sections 302/34, 304(B) of the I.P.C.and 4 of Dowry Prohibition Act whereas appellant Gabaj Yadav,Shiv Narayan Yadav and co-accused Nawal Yadav were separatelycharged for the offence punishable under Section 3 of DowryProhibition Act. The appellants and others denied the charges andclaimed to be tried.

9. In order to prove the charges, prosecution examined,altogether, 22 prosecution witnesses and also got exhibited severaldocuments. The statements of appellants and others were recordedunder Section 313 of the Cr.P.C. in which they reiterated theirinnocence and denied the prosecution story. The defence also gotexamined altogether ten defence witnesses and also got exhibitedsome documents in support of their defence. From perusal ofstatements recorded under Section 313 of the Cr.P.C., trends ofcross examination of prosecution witnesses as well as statementsof defence witnesses coupled with documentary evidence adducedon behalf of the defence, it would appear that defence of appellantsand other accused was denial of prosecution story and it wasspecific stand of the defence that deceased committed suicide asshe did not want to reside at her matrimonial home.

10. The learned 1st Additional Sessions Judge havingheard the parties and having evaluated the evidences available onthe record came to conclusion that prosecution failed to prove thecharge framed under Section 304(B) of the I.P.C. as the marriageof deceased had not taken place within seven years of her deathrather marriage of deceased had taken place much prior to sevenyears of her death. However, the learned court below came toconclusion that prosecution succeeded to prove charge under Section 302/34 of the I.P.C. and ¾ of Dowry Prohibition Actagainst the appellants but failed to prove the aforesaid chargesagainst co-accused Nawal Yadav and Meera Kumari.

11. Learned counsel appearing for the appellantsassailed the impugned judgment arguing that the learned trial courtfailed to appreciate the evidences available on the record in rightperspective as a result of which the learned trial court came towrong conclusion. She would further submit that PW-18 admittedin his ferdbeyan that he got information about the allegedoccurrence from one Banke Yadav but the aforesaid Banke Yadavwas not examined and no explanation of non examination ofaforesaid Banke Yadav was given by the prosecution. She wouldfurther submit that there are so many contradictions in thestatements of prosecution witnesses which make the prosecutionwitnesses unreliable. She would further submit that admittedly,prosecution could not succeed to prove charge framed underSection 304 (B) of the I.P.C and furthermore, none had seen theactual killing of the deceased and, therefore, the entire prosecutioncase was based upon circumstantial evidence. She would furthersubmit that learned trial court failed to take note of this fact thatthere was no chain of circumstances to prove the guilt ofappellants without any hypothesis. She would further submit that in course of investigation as well as trial, prosecution developed itsstory to this extent that before death deceased made her statementin respect of her death before some prosecution witnesses. Shewould submit that the learned trial court although disbelieved theaforesaid claim of the prosecution but without any materialconvicted the appellants. She would submit that impugnedjudgment is not liable to be sustained in the eye of law.

12. On the other hand, learned Additional PublicProsecutor supported the impugned judgment of conviction andsentence order arguing that in course of trial, prosecution broughtstrong circumstantial evidences to prove the guilt of the appellantsand, therefore, there is no need to interfere into the impugnedjudgment of conviction and sentence order.

13. Having heard the above stated contentions of theparties, we went through the record along with lower court record.The only question arises for determination as to whether theimpugned judgment of conviction and sentence order are liable tobe sustained or not.

14. As we have already noticed that the prosecutionexamined, altogether, 22 prosecution witnesses to prove thecharges framed against the appellants. Out of them PW-1 GopalPrasad Verma, PW-2 Shashikant Jha, PW-5 Nawin Prasad Yadav, PW-8 Mahendra Yadav, PW-14 Dev Narain Yadav, PW-17 SantoshKumar Singh and PW-22 Bindeshwari Yadav are formal witnesseswho have proved some documents or signatures of otherwitnesses. PW-6 Sudisa Yadav and PW-12 Ramdev Yadav weretendered by the prosecution and they stated nothing in theirexamination in chief. PW-4 Shivnandan Prasad Yadav, PW-7Bhubneshwar Prasad Yadav, PW-9 Ajit Yadav, PW-10 Balram Sah,PW-11 Domi Ram, PW-13 Satya Narain Yadav, PW-16 KrishanaBallabh Yadav, PW-18 Janardan Paswan and PW-19 Hari BallabhYadav supported the prosecution story. PW-15 Dr. J.B. Singhclaimed to have conducted postmortem examination on the corpusof the deceased and proved the postmortem report of the deceased.PW-20 Abdul Raquibe and PW-21 Dwarika Prasad Singh arepolice officials.

15. PW-15 claimed that he did postmortem examinationon the corpus of the deceased on 21.07.1987 and found that wholebody of the deceased from head to heel-1st to 2[nd] degree antemortem burn present except occipital region of scalp and 2[nd]degree of burn was present over face, back of chest and buttockregion. He also claimed that after removal of scalp haemotomameasuring 3”x3” present on right side of parietal region. He alsoclaimed that after opening the skull cavity, he found the brain material paled. He also claimed to have opened chest cavity andabdominal cavity of the deceased. He also claimed that smell of K.oil was found present and the cause of death was shock due toburn injuries. He also claimed that time elapsed since death wasabout 24 to 36 hours. This witness proved the postmortem reportas Ext. 5. The testimony of this witness as well as postmortemreport of the deceased go to show that deceased died of burninjuries. Moreover, cause of death of the deceased is not indispute.

16. The appellants and others were charged for theoffence punishable under Section 304B of the I.P.C. Now, it has tobe seen as to whether prosecution could succeed to prove thecharge framed under Section 304B of the IPC against theappellants. The learned trial court came to conclusion thatprosecution could not succeed to prove the charge of Section304B/34 of the IPC against the appellants.

17. On the point of marriage of deceased, PW-7Bhubneshwar Prasad Yadav at para 7 of his statement, claimed thatmarriage of deceased had taken place seven years prior to thealleged occurrence. PW-9 Ajit Yadav at para 20 of his crossexamination claimed that marriage of deceased had taken place tenyears ago from the date of occurrence. Similarly, PW-11 Domi Ram stated at para 24 of his cross examination that marriage ofdeceased had taken place ten years ago from the date of allegedoccurrence. PW-13 Satya Narain Yadav also claimed that marriageof deceased had taken place ten years ago prior to the allegedoccurrence. PW-16 Krishana Ballabh Yadav, who happens to befather of the deceased, at para 8 of his cross examination admittedthat marriage of deceased had taken place ten years ago from thedate of alleged occurrence. PW-19 Hari Ballabh Yadav alsoadmitted that marriage of deceased had taken place ten years agofrom the date of alleged occurrence. Therefore, it is obvious thaton the point of marriage there is consistent statement ofprosecution witnesses that deceased died much after seven years ofher marriage and the learned trial court rightly held at para 12 ofthe impugned judgment that prosecution failed to establish chargeunder Section 304B/34 of the IPC against the appellants as one ofthe important ingredients of Section 304B of the IPC was lackingand the question of presumption of dowry death under Section304B/34 of the IPC does not arise.

18. Now, it has to be seen whether the death of thedeceased was suicidal, accidental or homicidal. The learned courtbelow has come to conclusion that death of the deceased washomicidal and it were appellants who killed the deceased.

19. PW-3 Srimant Sah is co-villager of the appellants.This witness claims that in the night of alleged occurrence, hehaving heard the noise went running to the house of appellant no.1 and saw the deceased writhing due to burn injuries. She alsonoticed that there was box of k. oil lying there and he also noticedthat there were burnt clothes lying there. This witness furtherclaimed that deceased disclosed that appellants and some otherspoured k. oil and lit fire on her body.

20. PW-4 Shivnandan Prasad Yadav is also co-villagerof father of the deceased. This witness claims that PW-19 gaveinformation to him that deceased was put on fire at Maharajganjand having got the aforesaid information he went to the house ofappellant no. 1 where he saw the deceased lying at Verandah. Thiswitness, further, claims that on being asked deceased told him thatappellants and others lit fire on her body after pouring k. oil onher.

21. PW-7 Bhubneshwar Prasad Yadav is also co-villagerof the appellants. This witness claims that he went to the house ofappellant no. 1 having heard the noise and saw the deceasedwrithing in pain at Verandah. This witness, further, claims thatmother-in-law and sister-in-law of the deceased were pouringwater on the deceased. This witness, further, claims that deceased was uttering that appellants and others lit fire on her person afterpouring k. oil on her.

22. PW-9 Ajit Yadav is also co-villager of father of thedeceased and this witness also claims that he went to the house ofappellant no. 1 and saw the deceased in burnt condition. Thiswitness further, claims that deceased told him that appellants andothers lit fire on her body after pouring k. oil on her.

23. PW-10 Balram Sah is co-villager. This witness alsoclaims that he went to the place of occurrence and saw thedeceased in burnt condition and when he reached at the place ofoccurrence, deceased was talking with those persons who werepresent there.

24. PW-11 Domi Ram is also co-villager of father of thedeceased. This witness also claims that he went to the house ofappellant no. 1 where he saw the deceased who was writhing inpain and was uttering that appellants and others lit fire on herbody.

25. PW-13 Satya Narain Yadav, who happens to be co-villager of the appellants, also made the same statement.

26. PW-16 Krishana Ballabh Yadav is father of thevictim and this witness also claims that when he reached at thehouse of appellant no. 1, deceased was writhing in pain in a room and she disclosed that appellants and others lit fire on her bodyafter pouring k. oil on her. Almost similar statement has been madeby PW-19. Therefore, it is obvious that the prosecution witnessesclaimed before the trial court that before her death deceaseddisclosed that the appellants and others put fire on her body afterpouring k. oil on her. The learned trial court disbelieved theaforesaid claim of the prosecution witnesses.

27. Admittedly, the present case was lodged on the basisof ferdbeyan of PW-18 Janardan Paswan. This witness has provedhis signature on ferdbeyan. Furthermore, PW-18 admitted in hisdeposition that on 20.07.1987 while he was at his home he gotinformation about the alleged occurrence and having got theaforesaid information he went to the house of appellant no. 1where Chowkidar Nemani, Mukhiya Chandeshwari, SarpanchDomi Yadav, Satya Narayan Yadav (PW-13) etc. were present andthe aforesaid persons disclosed that appellants and others lit fireon the person of the deceased after pouring k. oil on her. Thiswitness, further, claims that he went inside the house of appellantno. 1 and found the deceased lying in a room having burnt injurieson his whole body. This witness, further, admitted that deceasedhad already died and, thereafter, he went to Murliganj policestation at about 10:00 A.M. and got recorded his ferdbeyan. PW-18

has, nowhere, stated in his ferdbeyan or in his testimony that whenhe reached over the place of occurrence, the prosecution witnessespresent there disclosed that the deceased had made her extrajudicial statement disclosing the manner of occurrence. Inferdbeyan of PW-18, it has been admitted by PW-18 that when hereached at the house of appellant no. 1, he found the deceaseddead. The above stated statement of PW-18 goes to show that tillthe registration of present case, none of the natal people of thedeceased had arrived at the place of occurrence. The defencewitnesses have also stated that deceased had not made anystatement. Therefore, the claim of above stated prosecutionwitnesses that deceased disclosed about the alleged occurrenceprior to her death appears to be doubtful and in my view, thelearned trial court rightly declined to rely upon the above statedso-called dying declaration because the above stated so-calleddying declaration of the deceased was not free from doubt.

28. I have already noticed that deceased died of her burninjuries and her whole body was found burnt in course ofpostmortem examination. PW-15 Dr. J.B. Singh on being crossexamined by the defence stated that since maximum burn injurywas found on back side of chest, buttock and face and there wascollection and clot of blood in parietal bone, therefore, it was not a case of suicidal death. So, in the opinion of PW-15, death of thedeceased was not a suicidal death and death of deceased washomicidal. The aforesaid claim of PW-15 is mere an opinion andthat requires deep scrutiny. The postmortem report (Ext.5) as wellas statement of PW-15 go to show that burn injuries were found onthe person of the deceased from head to her heel. Although, PW-15claims that injuries found on the person of the deceased suggestthat death of the deceased was not suicidal but in my view,possibility of suicide cannot be ruled out because only on theground that maximum injuries were found on back portion of thedeceased, it cannot be said that death of the deceased was notsuicidal in nature.

29. Admittedly, perusal of testimonies of prosecutionwitnesses go to show that not a single prosecution witness claimedto have seen the appellants pouring k. oil and litting fire on theperson of the deceased rather almost all the co-villagers of theappellants claimed to have gone at the house of appellant no. 1having heard the noise and when they reached at the place ofoccurrence, deceased was writhing in pain due to burn injuries.Furthermore, almost all the prosecution witnesses, except one,admitted that the appellants were not present in the house whenthey reached over the place of occurrence. Although, one witness claimed that when he reached at the place of occurrence, he sawthat mother-in-law and sister-in-law of the deceased were pouringwater on the deceased but that witness also did not claim thatremaining family members of the deceased were also present overthe place of occurrence. It is also an admitted position thatappellant no. 2 is cousin father-in-law and appellant no. 3 is cousinmother-in-law of the deceased. PW-7, who happens to be co-villagers of the appellants, has very clearly admitted at para 11 ofhis deposition that appellant no. 1 Gabaj Yadav and appellant no. 2Shiv Narayan Yadav are full brothers and they have partitionedtheir share and had been residing separately at the time of allegedoccurrence. Furthermore, this witness admitted at para 12 of hiscross examination that Shiv Narayan (appellant no. 2) had noconcern with the affairs of appellant no. 1. The prosecutionwitnesses were confronted by the defence that prosecution broughtthis false case because appellant no. 2 had lodged a case of dacoityagainst the natal people of the deceased for the occurrence of thesame day.

30. It is obvious from the aforesaid fact that appellantno. 2 and appellant no. 3 had no concern with the affairs ofappellant no. 1 and admittedly, they were residing separately fromappellant no. 1. It is an admitted case of the parties that deceased was burnt inside the house of appellant no. 1 and it has come inevidence that appellant no. 2 and appellant no. 3 were not residingin the house of appellant no. 1 and, therefore, presence of appellantno. 2 and appellant no. 3 in the house of appellant no. 1 at the timeof alleged occurrence cannot be presumed and appellant no. 2 andappellant no. 3 are not liable to explain the circumstances in whichdeceased died.

31. Admittedly, appellant no. 1 is father-in-law whereasremaining appellants are cousin parents in law of the deceased.The learned court below has passed the judgment of convictiontaking note of this fact that the occurrence took place inside thehouse of appellant no. 1 and at the time of occurrence, all theappellants were present in the said house and furthermore, theappellants took active part to cool down the fire by pouring waterand covering the deceased with blanket. The aforesaid finding ofthe learned trial court does not find support from the prosecutionevidence because as I have already stated that none of theprosecution witnesses claimed to have seen the appellants whenthey reached over the place of occurrence. Moreover, only oneprosecution witness claimed that he saw that mother-in-law andsister-in-law of the deceased were pouring water on the deceasedbut sister-in-law of the deceased has already been acquitted by the

learned court below passing impugned judgment and so far asmother-in-law of the deceased is concerned, she was not put up ontrial along with appellants and others. Therefore, it is obvious thatthere is nothing in the entire evidence of the prosecution that at thetime of alleged occurrence, the appellants were present in thehouse in which the alleged occurrence took place.

32. The prosecution has come with definite story thatdeceased was killed by the appellants on account of non-fulfilment of illegal demand of dowry. PW-3 at para 8 of hisexamination in chief claimed that deceased was taken to her in-laws’ house eight days prior to the alleged occurrence and theappellants and others had taken Rs. 1500/- in dowry and they weredemanding she-buffalo and more cash from the father of thedeceased but at para-36 of his cross-examination, he admitted thatterms and conditions of the marriage of deceased had not beensettled before him. He also admitted at para 40 of his cross-examination that at the time of BIDAI of the deceased, he had notgone to natal place of the deceased. Although, this witness claimedthat 2 to 4 days prior to the alleged occurrence deceased wasassaulted by her in-laws but he failed to remember as to whetherthe said statement was made before the police or not. At para-27and 28 of his cross examination, this witness admitted that there were two groups in his village and appellant no. 2 was member ofone group and he was also in the group of appellant no. 2.However, as I have already stated that talk of demand of dowryhad not taken place before him nor any cash amount was handedover to appellants before this witness, therefore, it is difficult toplace reliance on the statement of this witness.

33. PW-7 at para 7 of his deposition claimed that at thetime of marriage of deceased rupees seven thousand was given indowry and again at the time of BIDAI of the deceased, rupees onethousand five hundred was given but in-laws of the deceased werenot satisfied and they were demanding more dowry. However, atpara 26 of his cross examination, he admitted that he had heardabout the demand and payment of dowry. Again, this witness atpara 36 of his cross examination admitted that he had not gone totake BIDAI of the deceased. This witness also admitted that noPanchayati had been held in respect of demand of dowry. Thiswitness also admitted at para 38 of his cross examination that hehad heard about the torture of the deceased.

34. PW-9 has only claimed that deceased was killed onaccount of non-fulfilment of dowry. PW-9 happens to be co-villager of father of the deceased but this witness has statednothing about the demand of dowry. Almost similar statement has been made by PW-10 who has stated that present occurrence tookplace on account of demand of TILAK. Moreover, this witness atpara 23 of the cross examination admitted that talk of Tilak as wellas demand of dowry had not taken place before him.

35. PW-11 has stated that occurrence took place onaccount of demand of dowry but he admitted that nothing was paidin his presence. This witness again admitted at para 32 of his crossexamination that talk of dowry did not take place in his presence.

36. PW-13 at para 8 of his examination in chief claimedthat at the time of Bidai of the deceased, rupees one thousand fivehundred was paid to her in laws and the in-laws of the deceasedwere demanding more cash from the father of the deceased.However, para 18 of cross examination of this witness goes toshow that this witness has inimical terms with appellant no. 1. Thiswitness admitted at para 42 of his cross examination that demandof dowry was not made before him and he was also not present atthe time of negotiation of marriage of the deceased. This witnessfurther admitted at para 45 of his cross examination that noPanchayati was held in respect of demand of dowry. He furtheradmitted at para 55 of his cross examination that he had not goneto take BIDAI of the deceased.

37. PW-16 is very important witness because PW-16 isfather of the deceased. This witness admitted that after six to sixand half years of marriage deceased was taken to her in lawshouse and between the above stated period of six to six and halfyears, in laws of the deceased were demanding rupees fourthousand in cash and one she-buffalo in dowry. This witnessfurther claimed that at the time of BIDAI, he had given rupees onethousand five hundred in cash and other articles but after five tosix days of BIDAI of the deceased, he got a message sent by inlaws of the deceased to give rupees four thousand and one she-buffalo to them. This witness also got information that deceasedwas being tortured. This witness further claimed that having gotthe aforesaid information he went to the house of appellant no. 2but the appellants as well as other in laws of the deceaseddemanded cash and she-buffalo and also threatened to kill thedeceased. This witness in his cross examination admitted thathusband of the deceased had come to his house for taking BIDAIof the deceased and hot exchange of words had taken placebetween him and husband of the deceased on the point of dowry.This witness has also admitted that he had not made complain toany person in respect of demand of the appellants. This witnessfurther admitted that at the time of marriage he agreed to pay rupees seven thousand to in laws of the deceased and he paid theaforesaid amount to them. He further admitted that husband of thedeceased did not visit to his house prior to BIDAI of the deceasedand he told the aforesaid fact to appellant no. 1. This witnessfurther admitted that he had not made complain before the policeor any person regarding torture of the deceased. This witnessfurther admitted at para 18 of his cross examination that PW-3,PW-13 and Bhumi Yadav had given information to him about thedemand of cash and she-buffalo. Perusal of statement of thiswitness goes to show that appellants had not made any demanddirectly from PW-16. So far as PW-3 and PW-13 are concerned,they have, nowhere, stated in their respective statements thatappellants had asked them to convey their demand to PW-16.Moreover, only oral statement regarding the so-called demand hasbeen made by the prosecution and there is no documentaryevidence on record to show that appellants had made any demandfrom PW-16.

38. As I have already stated that some of the prosecutionwitnesses have admitted that appellants no. 2 and 3 were separatefrom appellant no. 1 at the time of alleged occurrence and theaforesaid fact has been corroborated by PW-20 who has admittedat para 14 of his examination in chief that at the time of inspection

of place of occurrence, he found that appellant no. 2 was separatefrom appellant no. 1. Furthermore, as I have already discussed thatthere is nothing in prosecution evidence to show that at the time ofalleged occurrence appellant no. 1 was present in his house ratherit has come in evidence that wife and daughter of appellant no. 1were present in the house at the time of alleged occurrence.Therefore, in my view, only on this ground that deceased died inmysterious circumstance in the house of appellant no. 1, it cannotbe said that appellant no. 1 was duty bound to explain thecircumstances in which deceased died.

39. On the basis of aforesaid discussions, I am of theconsidered view that prosecution could not succeed to prove thecharges levelled against the appellants beyond shadow of reasondoubts and in my view, the appellants are entitled to get benefit ofdoubt.

40. Accordingly, this criminal appeal is allowed andimpugned judgment of conviction and sentence order dated24.02.1994 is, hereby, set aside and the appellants are acquitted ofthe charges giving benefit of doubt to them. The appellants arealready on bail. They are discharged from the liabilities of theirbail bonds.

41. Copy of first and last page of this judgment behanded over to learned Amicus Curiae Ms. Surya Nilambari sothat she could claim for her remuneration before the competentauthority.

(Hemant Kumar Srivastava, J)

Prabhat Kumar Singh, J:- I agree.

( Prabhat Kumar Singh, J)

shahzad/-

AFR/NAFRAFRCAV DATE01.08.2019Uploading Date24.12.2020Transmission Date24.12.2020