“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 67 OF 2003

Arun Kumar Sharma …. Appellant

Versus

State of Bihar …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The  sole  accused  appellant  challenges  the  High  Court  judgment  

dismissing the criminal  appeal and confirming the judgment of  conviction and  

sentence by the Sessions Judge.

2. The prosecution  story is  an  extremely short  conspectus.   As  many as  

three persons,  being Sitaram Sharma, Gayatri  Devi  Sharma and Arun Kumar  

Sharma were tried for offences under Section 302 read with Section 34 IPC and  

alternatively, under Section 304B read with Section 34 and 498A, IPC.  Sitaram  

Sharma  is  father,  Gayatri  Devi  is  the  mother  while  Arun  Kumar  Sharma  

(appellant)  is  the  son.   The  allegation  against  all  the  three  was  that  they  

committed the murder of Sushma Devi, wife of Arun Kumar Sharma for dowry  

and also subjected her to cruelty on account of demand of dowry.  The Trial  

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Court acquitted Sitaram Sharma and his wife Gayatri Devi Sharma but convicted  

Arun Kumar Sharma of the substantive offence under Section 302, IPC.   

3. On 17.06.1994, at about 9.30 p.m., a telephonic massage was received in  

Lakhisarai police station that a woman was murdered by strangulation.  On that  

basis, an entry, vide Entry No. 516, was made in the police diary and the offence  

was registered.  The police immediately went to the spot of occurrence and got a  

fardbayaan registered  from  one  Leeladhar  Pradhan,  the  father-in-law  of  the  

accused who was ultimately  examined as PW-4.   It  was complained that  his  

daughter Smt. Sushma Devi was married to the accused Arun Kumar Sharma  

about  four  years  back  and  after  the  marriage  Arun  Kumar  always  used  to  

demand a motorcycle and a colour  television from his wife and also used to  

threaten her that if his demands were not fulfilled he would drive her out of the  

house.  It was claimed that the deceased always used to complain about this to  

her parents.  It was claimed that 8-9 months prior to the incident, on account of  

the scolding, harassment and demands of dowry, Panchayat was held and PW-4  

had shown his inability to meet the demands made by the accused person.  It  

was further claimed that at about 6 a.m. in the morning Anil Kumar Pradhan (PW-

1) who was none else but the brother of Sushma Devi and son of Leeladhar  

Pradhan (PW-4) went to his sister’s house for giving some articles.  He saw three  

accused  persons  holding  the  deceased  and  Arun  Kumar  strangulating  the  

deceased and after some time she died.  The said Anil Kumar, therefore, ran  

back to his house and informed Leeladhar Pradhan (PW-4) about the incident  

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and immediately thereafter the parents as well as Arun Kumar went to the house  

of Sushma where she was lying dead.  

4. Further investigation was taken up.  The inquest was held and the dead  

body was sent for autopsy whereupon it was found in the post-mortem report that  

the deceased had multiple bruises over front of neck varying in sizes and there  

was extra blood in the soft tissues of neck with fracture of hyoid bone of trachea.

5. The accused were not found present in the house and the house was  

found  to  be  open.   Ultimately,  they  came  to  be  arrested  only  when  they  

surrendered themselves after more than 10 days in the Court.   

6. The  charge-sheet  came  to  be  submitted  for  offences  under  Sections  

304B, 498A read with Section 34 IPC.  However, at the stage of trial, the offence  

under Section 302, IPC was also added.  In support of the prosecution’s claim,  

Anil Kumar Pradhan was examined as PW-1 while Dr. Dharam Nath Chaudhari  

who conducted the post-mortem was examined as PW-2.  One  Om  Prakash  

Vidyalankar was also examined as PW-3 in order to corroborate the evidence of  

PW-1.   According to  his  version,  he had seen Arun Kumar running from the  

house  of  his  sister  and  expressing  that  his  sister  was  murdered.   Father  of  

deceased Sushma, namely,  Leeladhar was examined as PW-4.  Including the  

police witnesses, in all 8 witnesses were examined by the prosecution.

7. Thus, the prosecution depended only on the single eye-witness, namely,  

Anil Kumar Pradhan as also on the other circumstance that within 7 years of her  

marriage, Sushma had suffered an unnatural death.

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8. The defence of the accused before the Sessions Judge was that this was  

not the case of murder at all.  According to the accused, the deceased had kept  

the ornaments with her father but the same were not returned to the deceased  

and, therefore, she committed suicide.  Two witnesses were examined as DW-1,  

Veena Devi, who was the neighbour and who claimed that she had talked to the  

deceased at about 8 a.m, and DW-2 Narmada Devi, who was the maternal grand  

mother of the accused Arun Kumar who deposed that on that day she had visited  

Sushma and Sushma had served break fast to her husband and thereafter she  

cooked meals and after taking bath she came to her room along with her son.  

She bolted the door and committed suicide by hanging herself.   The witness  

further claimed to have forcibly opened the door with the help of 2 persons and  

seen the dead body of Sushma, dangling from the fan.

9. The Trial  Court  came to the conclusion that  no demand of  dowry was  

proved in this case and, therefore, acquitted the accused of the offence under  

Section 304B, IPC as also of the offence under Section 498A, IPC.  The Trial  

Court also held that there was no question of the father and mother being there  

and the PW-1 could not be believed so as to hold anything against accused Nos.  

1 and 2, i.e. the father and the mother of the present appellant.  The Trial Court,  

therefore,  proceeded  to  acquit  accused  Nos.1  and  2  of  all  the  charges  and  

convicted only the present appellant for offence under Section 302, IPC.

10. The appeal against this judgment failed necessitating the present appeal  

before us.  Ms. Jha, the learned Advocate appearing for the appellant, severely  

criticized the judgments of both the Courts below, the High Court as well as the  

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Trial court and pointed out that there were number of discrepancies to be found  

in the prosecution case which had remained unexplained.

11. Learned counsel for the State supported the judgments and contended  

that the prosecution had proved the offences to the hilt.  We have, therefore, to  

decide as  to  whether  the prosecution  has in  fact  proved the offence beyond  

reasonable doubt.  

12. The mainstay  of  the  prosecution  is  the  evidence of  PW-1,  Anil  Kumar  

Pradhan.  Ms. Jha took us through his evidence.  According to him, he had gone  

to his sister’s house at 6 a.m. in the morning for giving some articles.  At that time  

he saw that his sister was being held by her in-laws jointly and Arun Kumar was  

strangulating her.  He then specifically said that Arun Kumar pressed her neck  

and she fell down to the ground.  He then proceeded to say that he raised alarm  

and ran towards her house and met Om Vidyalankar on the way who asked him  

as to why he was crying, on which he narrated that his sister was murdered.

13. Defence counsel  criticized this  evidence on the ground that  it  was too  

general in nature.  It was suggested that it was not clear as to what articles were  

to be reached in the morning at 6 O’clock, to the deceased.  Learned counsel  

also pointed out that it was unbelievable that his sister was being murdered and  

he did nothing except crying and running back to his parents.  Again, he did not  

tell as to where Om Prakash Vidyalankar met him.  There was a serious omission  

about  his  meeting  Om Prakash  Vidyalankar  which  was  got  proved  from the  

Investigating Officer.  Last, but not the least, learned counsel pointed out that this  

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witness, as also the other witnesses, merely kept on sitting with the dead body of  

the deceased all through the day and did not report the matter till 9.30 p.m. when  

the police reached on the spot at somebody else’s instance who had made a call  

to the police station.   

14. When we see the cross-examination of this witness, it is admitted by him  

that  his house was situated at  hardly  about  1 or 2 kilometers away from the  

house of the accused persons and it takes about 15 minutes to reach there.  It is  

really strange that this witness chose to go in the early hours of morning at 6  

O’clock to give those articles.  He does not tell as to what articles he had taken to  

his sister’s house.  Admittedly, he was there on the spot only for about 25-30  

seconds  and  according  to  him  immediately  thereafter  his  mother  and  father  

reached the spot of occurrence.  It is indeed mysterious as to where the accused  

persons went during these 15 minutes’ time, but what completely beats us to  

understand is as to why all the three kept on sitting there without informing the  

police and taking any action.  It is absolutely doubtful as to what he or his parents  

did during the whole day.  He did not even know the whereabouts of his brother-

in-law,  the  present  accused.   He did  not  even know the extent  of  Sushma’s  

education, though he admitted that Sushma was an emotional girl.  He has not  

uttered  even  a  word  about  any demand  having  been  made  by  the  accused  

persons or Sushma having stated about  the demands either  to him or to his  

parents.  His statement was recorded before the Magistrate under Section 164,  

Cr.P.C.   Very strangely,  he has disowned practically  all  his  statements made  

before the Magistrate.  He has stated that he did not remember as to whether he  

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met Om Prakash Vidyalankar on the way etc.  The evidence of this witness is  

extremely casual in nature.  It is not known as to what this witness was doing at 6  

O’clock at his sister’s place.  Even after seeing his sister being murdered, he did  

nothing.  It is also not known as to why this witness did not inform the police for  

15 hrs., after the so called murder.  The evidence of this witness was sought to  

be corroborated by the evidence of his father Leeladhar Pradhan.  His evidence  

is of no use because admittedly he was not present there.  He only said that his  

son informed him that his sister was being subjected to beatings by her father-in-

law, brother-in-law and her husband.  He also added the name of the brother-in-

law.   Who this brother-in-law is,  was not  clarified nor was he (brother-in-law)  

made an accused in the proceedings.  Again, it is quite mysterious that even this  

witness who was a literate witness, did not do anything for the whole day and did  

not go to the police.  It is only when the police came to the spot that he made his  

statement.  He, however, made a charge that the police had connived with the  

accused and filed a Protest Petition before the Judicial  Magistrate,  Lakhisarai  

that despite repeated requests, the police was not arresting the accused Gayatri  

Devi and Sita Ram.  In his cross-examination he admitted that he was working as  

an Accountant.  He also admitted that he had not said in his statement in respect  

of the demand of television and motorcycle.  Very significantly, he says that his  

son-in-law i.e. the accused and his parents were present in the house when they  

reached.  This is not the claim of anybody including PW-1 Anil Kumar.  It is again  

mysterious when he says that on the day of occurrence at about 7 or 7.15 a.m.  

his son-in-law and his parents left the house.  He did not know where they went.  

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He also claims that they did not return till the next day of occurrence or so long  

as he was there at the place of occurrence.  He also said that he did not recollect  

as to whether he stated in his  fardbayaan or not that Om Prakash Vidyalankar  

also arrived at the place of occurrence following them.   

15. The evidence of this witness is extremely suspicious for the simple reason  

that he did nothing for the whole day nor did he go to the police station at all.  

Ordinarily,  he  would  have  confronted  the  parents  of  the  present  accused-

appellant and would have asked about the death of this daughter.  He also did  

not raise any objection on the accused leaving their house.  When we see the  

First Information Report made by this witness, it is seen that there is no mention  

of the demand for motor cycle and television.  In his report, he says that number  

of persons, many men and women were present.  What beats us completely is  

that this witness kept quiet  for the whole day, for more than 15 hours till  the  

police reached him and recorded his statement.   

16. The  evidence  of  Om  Prakash  Vidyalankar  (PW-3)  is  also  extremely  

suspicious for the simple reason that even he, in spite of the fact that he was  

informed of the murder, yet kept quiet.  He claimed that he was with the dead  

body all the day when he reached the house of Sushma after some time.  It is  

obvious that this witness was present as his signature appears on the report.  

However, he also for some mysterious reasons kept quiet for about 15 hours.  

When matched with the evidence of Anil Kumar Pradhan (PW-1), the evidence of  

this witness becomes suspicious.

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17. In short, all the three witnesses do not inspire any confidence.  PW-2 is  

the doctor who conducted the autopsy.  It is clear that in his evidence, he found  

the following ante-mortem injuries on the body of Sushma:

“ 1. Multiple  bruises  over  front  of  neck  varying  in  sizes  ¾”-1/2”x1/4”;

 2. On diseection ecchymosis was found present.  There  was extra-vagation of blood in the soft tissues of neck  with fracture of hyoid bone of trachea.”

18. It is significant that Sushma did not have any other injuries.  If the theory  

of the prosecution was that she was being severely beaten by fists and slaps by  

the accused persons, then some ante-mortem injuries ought to have been found.  

On the other hand, even her bangles were not broken. Anil Kumar Pradhan (PW-

1) has specifically admitted that her glass bangles were intact in her hands.  In  

his cross-examination, the doctor suggested that the injury was on account of  

asphyxia as a result of injury No.1 due to forcible pressure over neck.  In his  

cross-examination, the doctor deposed:

“11. In  this  case,  while  conducting  post-mortem  examination I did find multiple bruises which may be  due  to  forceful  pressure  by  the  fingers.   These  multiple bruises are not due to ligature and they can  not be called ligature mark.

13. In ligature mark there is breadth, with depression.”

19. In paragraph 17 of his cross-examination he admitted that if fingers are  

used, mark of pressure by thumb and fingers are usually found on either side of  

the wind pipe.  From this evidence, it does not appear that there was any such  

mark on either side of the wind pipe.  The evidence of the doctor suggests that  

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there were multiple bruises which could be due to the forcible pressure of fingers.  

Even if it is held that Sushma died of throttling, there is no convincing evidence  

that it was the accused alone who throttled Sushma to death.

20. What is more baffling is that the FIR which was registered at about 9 or  

9.30 at night was not sent to the Magistrate.  Under Section 157 Cr.P.C., the  

copy  of  the  FIR  has  to  be  sent  to  the  Magistrate.   This  never  happened.  

However,  seen  from  the  records,  this  FIR  reached  the  Magistrate  only  on  

22.06.94.  This  is  extremely  suspicious.   In  his  deposition,  the  Investigating  

Officer proved that the FIR was chalked out in writing by Maheshwari Mandal, the  

SHO.  Very significantly, this SHO or any other officer never examined the house  

thoroughly  nor  have  they  examined  the  inner  rooms  for  ascertaining  as  to  

whether the doors and the latches were intact or not.  This was a typical dumb  

investigation.   Investigation  Officer  has  not  even  bothered  to  draw  a  spot  

Panchnama.  Though he stated that the accused were not present, he did not  

suggest any efforts having been made for their arrest.  In his cross-examination,  

he  admitted  that  in  the  case  diary,  he  had not  recorded  as  to  which  officer  

received information in the police station nor was it mentioned in the case diary  

as to which lady was referred to in the telephonic information.  Even the name of  

the informer was admittedly not there in the case diary.  Specific questions were  

put as to whether he inspected the rooms at the place of occurrence or not.  He  

admitted that it was not so recorded in the case diary.  Even the time of sending  

the dead body for post-mortem was not mentioned.  He admitted that when he  

reached the spot, neither the accused nor his parents were present.  Then he  

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asserted  that  their  luggage  was  there.   It  is  very  significant  to  note  that  he  

admitted that Anil Kumar had not stated about the time of occurrence nor did he  

state  the  fact  of  beating  Sushma with  fists  and slaps.   Very significantly,  he  

admitted that Anil  Kumar had not stated about this meeting with Om Prakash  

Vidyalankar on the way.  He had also not stated that his sister was murdered on  

account of not giving the colour television and motor cycle.  He further admitted  

that Anil Kumar (PW-1) had not stated that his father had told him while he went  

for  tution that  some articles  were to  be  delivered  to  his  sister.   The witness  

admits “on enquiry by us, he remained silent”.

21. It is true that this witness was not asked as to why he had not forwarded  

the FIR to the Magistrate.  However, the learned counsel pointed out from the  

official  record  that  a  copy  of  the  FIR  was  not  sent  to  the  Magistrate  up  to  

22.06.1994 though the Court and the police station are in the same city.  There is  

also the evidence of  Veena Devi  (DW-1)  and Narmada Devi  (DW-2).   DW-1  

asserted that she had visited Sushma at 8 O’clock.  At that time, Sushma was  

alive.  DW-2 asserted that she had gone to the house of Sushma to meet her and  

till  almost  11  O’clock  Sushma  was  alive  so  much  so  that  she  had  offered  

breakfast to her husband.

22. We do not attach much importance to these witnesses but one thing is  

certain that both the witnesses claim that Sushma was alive even after 6 O’clock.  

DW-2 asserted  in  her  examination-in-chief  that  when she  went  to  her  house  

again on hearing cries of Sonu, the son of deceased, she found the door closed.  

She,  therefore,  called  two  persons  saying  that  her  daughter-in-law  was  not  

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opening the door.  She then claims: “Dono aadmi ne ek darwaje me dhakka dia  

to chitkani toot gaya; to hamne dekha Sushma pankhe se latak rahi thi.  Baccha  

ro raha tha.  Phir dono aadmio ne Sushma ko pankhe se utar kar aangan me  

sula dia [‘both persons forcibly pushed the door when the stopper broke down.   

There they saw that Sushma was dangling from the fan.  The child was crying.   

Then both those persons brought down the body and put it in the courtyard”].

23. In her cross-examination she had stated the name of those persons to be  

Birju Mandal and Ramvilas.  The investigating agency would have done well in  

examining at least the neighbours but that does not seem to have been done.  

DW-2 was also a neighbour in the sense that she stayed very near to the house  

of  the deceased.   It  is  not  known as to why the Investigating Officer did not  

examine neighbours, one of whom was the relative of the deceased.  The apathy  

on the part  of  the Investigating Officer  to  examine the house closely creates  

suspicion.  This is an unfortunate case where due to the slip-shod investigation  

the death of a young woman has to go unpunished.  

24. Therefore,  numbers  of  questions  remain  unanswered.   Where  did  the  

unfortunate girl die?  Whether inside the house or in veranda? If she died inside  

the house, was it possible for a person standing on road to see the incident?  

Who brought the body in veranda? Who were the inmates of the house? Where  

did they go after the incident? When were they arrested? What happened to the  

child of the deceased? Who took it away and when?  Why was the room not  

inspected and examined so as to ascertain the condition of the door, height of  

the ceiling fan, condition of the stopper (chitkani) etc?  These questions keep on  

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gaping at the Court and the only responsible person is the Investigating Officer  

who  has  acted  in  the  most  irresponsible  and casual  manner.   We hope the  

department takes note of this.

25. The State has not filed any appeal against the acquittal of accused Nos. 1  

and 2.  The Trial Court refused to believe PW-1 in so far as the role ascribed by  

him to accused Nos.  1 and 2.   This is  one more reason why it  is  extremely  

difficult  to  accept  the  evidence  of  PW-1.   The major  part  of  his  evidence  is  

disbelieved by the Trial court and that verdict of the Trial Court has remained  

unchallenged.

26. The  judgments  of  the  Trial  Court  and  the  High  Court  are  also  

disappointing.  The Trial Court, though has referred to the witnesses, has not  

cross-matched  the  evidence  of  the  witnesses  so  as  to  come  to  the  proper  

conclusion regarding the veracity of the evidence of those witnesses.  To the  

similar effect is the judgment of the High Court.  There is no serious appreciation  

of the evidence with reference to the record.  In its appellate jurisdiction, all the  

facts were open to the High Court and, therefore, the High Court was expected to  

go deep into the evidence and, more particularly, the record as also the proved  

documents.  There does not appear to be any serious effort to delve deep into  

the  record  of  the  case  and  the  evidence  of  the  witnesses.   The  role  of  the  

appellate Court in a criminal appeal is extremely important.  All the questions of  

facts are open before the appellate Court.  Unfortunately in this matter, we do not  

find any such serious effort made on the part of the High Court to deal with the  

matter, with the result that we had to examine the evidence afresh along with the  

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proved documents, which we ordinarily would not have done.   However, that  

was necessary in the interest of justice.   

27. The result is that, firstly the accused has to be given the benefit of doubt  

and the appeal has to be allowed on that basis.  The judgments and orders of  

conviction passed by the Trial Court and the appellate Court are set aside.  The  

accused is acquitted of all the offences.  He is presently reported to be on bail.  

His bail bond shall stand cancelled.

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (Deepak Verma)

New Delhi; October 05, 2009

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