Law Web: 'Highly Objectionable': Supreme Court Criticises Patna HC Remark That Widow Has No Use Of Make-up

Admittedly, another woman namely, Chando Devi (sister of Ram Chabila Singh) was also residing in the same portion of the

house. The High Court did take note of this fact but explained it

away by observing that since Chando Devi was a widow, the

make-up articles could not have belonged to her as there was no

need for her to put on make-up being a widow. In our opinion,

the observation of the High Court is not only legally untenable

but also highly objectionable. A sweeping observation of this

nature is not commensurate with the sensitivity and neutrality

expected from a court of law, specifically when the same is not

made out from any evidence on record.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1031 OF 2015

VIJAY SINGH@VIJAY KR. SHARMA Vs THE STATE OF BIHAR

Author: SATISH CHANDRA SHARMA, J.

Citation: 2024 INSC 735,

1. On 30.08.1985, Neelam breathed her last in Simaltalla, PS

Sikandra, District Munger, Bihar. The factum of her death was

discovered in furtherance of the written report lodged by the

informant and brother-in-law of the deceased, namely,

Ramanand Singh (examined as PW18 before the Trial Court )

wherein he alleged that Neelam was abducted by seven persons

from their house in an incident which occurred at around 10:00

PM on the said day. On the basis of this information, an FIR

bearing no. 127 of 1985 was lodged at PS Sikandra and

investigation was commenced which led to the filing of a

chargesheet against the seven accused persons, namely –

Krishna Nandan Singh (Accused No. 1), Ram Nandan Singh

(Accused No. 2), Raj Nandan Singh (Accused No. 3), Shyam

Nandan Singh (Accused No. 4), Bhagwan Singh (Accused No.

5), Vijay Singh (Accused No. 6) and Tanik Singh (Accused No.

7).

2. The Trial Court charged all seven accused persons for the

commission of offences punishable under Sections 323, 302, 364,

449, 450, 380/34 and 120-B of the Indian Penal Code, 1860.

Later, accused nos. 6 and 7 were distinctly charged for the

commission of offences punishable under Sections 342, 506 read

with Section 34 of IPC. After trial, the Trial Court, vide order

dated 05.06.1992, convicted the accused persons listed as

accused nos. 1, 2, 3, 4 and 5 for the commission of offences

under Section 302/34 and 364/34 of IPC. They were acquitted of

all other charges, and accused nos. 6 and 7 were acquitted of all

the charges.

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3. The convicts preferred an appeal before the Patna High

Court against the order of conviction and the State preferred an

appeal before the High Court against the order of acquittal of the

two accused persons. The Patna High Court, vide a common

judgment dated 26.03.2015, upheld the conviction of the five

convicts and set aside the acquittal of accused nos. 6 and 7 by

finding them guilty of the commission of offences under

Sections 364/34 and 302/34 of IPC. Accordingly, accused nos. 6

and 7 were also convicted and were sentenced to undergo

rigorous life imprisonment on each count. The present batch of

appeals assail the order/judgment dated 26.03.2015 of the Patna

High Court.

BRIEF FACTS

4. Shorn of unnecessary details, the facts reveal that deceased

Neelam was the wife of one Ashok Kumar who happened to be

the son of PW3/Ganesh Prasad Singh, and the informant

PW18/Ramanand Singh was the brother of Ashok Kumar. The

informant’s case was that at the relevant point of time, the

deceased was residing with her husband and the informant in

the house belonging to her late father Jang Bahadur Singh, who

belonged to Simaltalla. The house was partially occupied by the

deceased, her husband and her brother-in-law and the remaining

portion was rented out and tenants were residing in those

portions.

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5. As per the prosecution case, on 30.08.1985 at about 10:00

PM, PW18 was sitting outside the house on a rickshaw along

with one Doman Tenti, Daso Mistry and Soordas, and Neelam

was sleeping inside the house. Her husband, Ashok Kumar, had

gone to his native place Ghogsha. Suddenly, the seven accused

persons, including the appellants before us, came from north

direction along with 15 other unknown assailants. Accused Vijay

Singh/A-6 caught hold of the informant/PW18 and as soon as he

raised alarm and started shouting, two unknown persons pointed

out pistols towards him and directed him to maintain silence.

Thereafter, the accused persons who had caught the informant,

assaulted him with fists and slaps, and confined him near the well

situated on the north side of the house. Meanwhile, A-1 entered

the house with 5-7 other accused persons by getting the house

unlatched through a resident namely Kumud Ranjan Singh and

dragged Neelam out of the house. As soon as they dragged her

out, four persons caught hold of Neelam by her arms and legs,

lifted her and started moving towards Lohanda. As per the

informant, the accused persons also picked up two sarees, two

blouses, two petticoats and a pair of slippers from Neelam’s room

while going out.

6. As the informant raised alarm, other people of the mohalla

also gathered around including PW2 Vinay Kumar Singh, PW4

Chandra Shekhar Prasad Singh and PW5 Ram Naresh Singh. The

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said three witnesses witnessed the accused persons taking away

Neelam but could not stop them. The informant explained that no

one dared to follow the accused persons as they had pointed

pistols and had threatened of dire consequences. The informant

also explained the motive behind the commission of the crime. It

transpires from his statement that Neelam’s late father Jang

Bahadur Singh had no son and his house was in possession of his

daughter Neelam. She was abducted in order to forcefully obtain

the possession of the house belonging to her father. The second

limb of motive stems from the pending litigation between A-1 to

A-5 (appellants) on one side and deceased Neelam, her maternal

grandfather and her two sisters on the other side. The accused

persons had obtained letters of administration and probate of the

Will left by late Jang Bahadur Singh from the competent court

and the said order came to be challenged before the Patna High

Court by the deceased, her maternal grandfather and younger

sisters. In the said appeal, the Patna High Court had injuncted the

accused persons from alienating any part of the property. The

High Court also restrained the execution of the probate of the

Will by restraining the delivery of possession of the property to

the accused persons. Thus, deceased Neelam was residing in

her father’s house along with her husband and brother-in-law in

order to retain the possession of the property. In this backdrop,

the matter went for trial.

Criminal Appeal No. 1031/2015 and others Page 6 of 26

BEFORE THE TRIAL COURT

7. The Trial Court, while acquitting A-6 and A-7, observed

that the motive attributed for the commission of the crime was

not attributable to the said two accused persons as no interest of

theirs could be disclosed in the pending litigation. Further, it also

found that A-6 was not named in the FIR registered upon the

information supplied by PW18 and in his oral testimony, no

statement of assault by A-6 and A-7 was given by him. It

further held that no evidence sur-faced during the trial to indicate

the participation of A-6 and A-7 in the acts of abduction and

commission of murder.

8. While convicting A-1 to A-5 on the charges under Sections

302/34 and 364/34 of IPC, the Trial Court primarily relied upon

the oral testimonies of PW18/informant, PW2, PW4 and PW5.

The motive for the commission of the offence was supplied by

the pending legal dispute relating to the property belonging to

late Jang Bahadur Singh. The Court also replied upon

circumstantial evidence borne out from the testimonies of PW7

(maternal uncle of the de-ceased), PW3 (father-in-law of the

deceased), PW23 (sister of the deceased) and PW13 (doctor) to

arrive at the finding of guilt.

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BEFORE THE HIGH COURT

9. A reading of the impugned judgment passed by the High

Court suggests that the High Court carried out a fresh

appreciation of evidence. The High Court firstly examined the

question whether Neelam was actually residing in the house from

which she was abducted. Relying upon the testimonies of PW7

(maternal uncle of deceased), PW18 (broth-er-in-law of deceased

and informant) and PW21 (Investigating Officer), the Court

concluded that Neelam was indeed re-siding in the said house. In

doing so, the Court discarded the fact that the other independent

occupants of the house such as Ram Chabila Singh, his son,

Kumud Ranjan Singh etc. did not come in support of the said fact.

To overcome this deficiency, the Court relied upon the statements

of PW21 and PW23 (sister of deceased) that some make-up

articles were found in a bag lying in the room, which was

suggestive of the fact that a woman was residing in the said room.

10. In further consideration, the High Court excluded the

evidence of PW5 for the reason that his presence at the place of

incident was doubtful. For, PW5 deposed that he was heading

towards his home from Deoghar and on the way from Lakhisarai

to Simaltalla, he stopped at Sikandra Chowk along with PW2 and

PW4. It was at this point that they heard the hulla and ended up

witnessing the commission of offence. The High Court took note

of the fact that while going from Deoghar to Simaltalla,

Criminal Appeal No. 1031/2015 and others Page 8 of 26

Lakhisarai and Ghogsha would come first and thus, there was no

reason for PW5 to come all the way to Sikandra Chowk if he was

going to his home in Ghogsha as he could have directly

proceeded from Lakhisarai to Ghogsha. Nevertheless, the High

Court duly relied upon the evidence of PW2, PW4 and PW18 as

well as on circumstantial evidence comprising of the testimonies

of PW23, PW13 (doctor) and absence of suitable explanation in

the statements of accused persons under Section 313 of the Code

of Criminal Procedure, 1973 as regards the fatal injuries suffered

by the deceased. Thus, the High Court upheld the finding of guilt

of A-1 to A-5.

11. As regards A-6 and A-7, the High Court reversed the

finding of acquittal of the Trial Court into that of conviction.

Primarily, the High Court observed that the said two accused

persons were acquitted on the basis of the exonerating testimony

of PW5 and the same cannot be sustained as the testimony of

PW5 has been excluded by the High Court in appeal. Further, the

Court held that the testimonies of PW2, PW4 and PW18 were

consistent regarding the participation of A-6 and A-7 and thus,

they were convicted for the commission of the offences under

Sections 364 and 302 of IPC read with Section 34 of IPC. The

applicability of Section 34 IPC was based on the fact that A-6 and

A-7 had confined PW18 near the well in order to eliminate any

Criminal Appeal No. 1031/2015 and others Page 9 of 26

chances of resistance in the acts committed by the other five

accused per-sons.

SUBMISSIONS

12. On behalf of A-6 and A-7, it is submitted that there was no

motive for the said accused persons to have indulged in the

commission of the offence in question. The motive, if any,

existed only for the remaining five accused persons who were

interested in the outcome of the pending litigation between the

parties. It is further contended that the High Court ought not to

have entered into the exercise of re-appreciation of the entire

evidence without finding any infirmity in the view taken by the

Trial Court. To buttress this submission, it is submitted that since

the view taken by the Trial Court was a possible view, it could

not have been disturbed by the High Court in appeal. In this

regard, reliance has been placed upon the decisions of this Court

in State of Goa v. Sanjay Thakran , Chandrappa v. State of

Karnataka , Nepal Singh v. State of Haryana , Kashiram v.

State of M.P. , Labh Singh v. State of Punjab and Suratlal v.

State of M.P. .

13. It is further submitted that no reliance could be placed

upon the testimonies of PW2 and PW4 as their presence at the

spot was doubtful. Further, if they were 400 yards away when

hue and cry was raised, they could not have seen A-6 taking away

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PW18 towards the well as the said fact took place prior to the hue

and cry. It is further submitted that in the FIR, no pistol was

assigned to A-6, whereas, the said fact was brought forward at

the time of evidence. The appellants have also raised a question

regarding the time of incident on the basis of medical evidence.

It is stated that the post-mortem report indicated that halfdigested food was found in the stomach of the deceased, whereas,

the informant PW18 deposed that the incident took place

immediately after dinner. If such was the case, the death ought to

have occurred around 1-2 AM in the intervening night of

30.08.1985-31.08.1985, but the post-mortem report, based on the

post-mortem conducted at around 05:30 PM on 31.08.1985,

indicated that death took place about 24 hours ago and thus, the

time of death was around 05:00 PM on 30.08.1985 and not 10:00

PM, as alleged.

14. The appellants have also submitted that the prosecution

has not proved that the deceased was actually residing in the

concerned house at Simaltalla.

15. Per contra, it is submitted on behalf of the State that mere

non-examination of some independent witnesses shall not be

fatal to the case of the prosecution. Reliance has been placed

upon the decision of this Court in Rai Saheb & ors. v. State of

Haryana to contend that at times, independent witnesses may

not come forward due to fear. It is further submitted that the High

Criminal Appeal No. 1031/2015 and others Page 11 of 26

Court has correctly appreciated the evidence in order to arrive at

the finding of guilt of the accused persons. It is further submitted

that the testimonies of PW2, PW4 and PW18 are consistent and

the High Court has correctly placed reliance upon their

testimonies. As regards motive as well, it is submitted that the

evidence is sufficient to reveal motive for the commission of the

crime.

16. We have heard learned counsels for the appellants as well

as for the State. We have also carefully examined the record.

DISCUSSION

17. In light of the rival contentions raised by the parties, the

principal issue that arises before the Court is whether the finding

of guilt of the appellants arrived at by the High Court is

sustainable in light of the evidence on record. As a corollary of

this issue, it also needs to be examined whether the approach of

the High Court was in line with the settled law for reversing an

acquittal into conviction in a criminal appeal.

18. After two rounds of litigation before the Trial Court and

the High Court, it is fairly certain the case is to be examined only

with respect to the offences under Sections 364 and 302 of IPC

read with Section 34 IPC. With respect to the offence under

Section 364 IPC, the case of the prosecution is based on direct

oral evidence, and with respect to the offence under Section 302

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IPC, the case of the prosecution is essentially based on

circumstantial evidence as no direct evidence of the commission

of murder could be collected. However, it is quite evident that the

offence of murder was committed after the commission of the

offence of abduction. There is a sequential relationship between

the two offences and thus, in order to set up a case for the

commission of the offence of murder, it is necessary to prove the

commission of the offence of abduction by the accused

persons/appellants. For, the chain, in a case based on

circumstantial evidence, must be complete and consistent.

19. In order to prove the offence under Section 364 IPC, the

prosecution has relied upon the oral testimonies of four eye

witnesses – PW-2, PW-4, PW-5 and PW-18. Their testimonies

have been assailed on various counts. The appellants have termed

the said witnesses as interested and chance witnesses. The former

charge originates from the fact that the witnesses were related to

the deceased, and the latter charge originates from the fact that

the witnesses had no rea-son to be present at the place of offence

and they just appeared unexpectedly as a matter of chance. Let us

examine both the aspects. We may first examine the testimonies

of the witnesses independently, without going into their

relationship with the deceased.

20. The informant PW18 has deposed that he was standing

near a rickshaw outside his house and the deceased was sleeping

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inside the house. PW18 was standing along with three

independent persons namely, Doman Tenti, Daso Mistry and

Soordas. The seven accused persons came along with 15 other

persons. A-6 and A-7, along with unknown persons, first came to

PW18 and took him away towards the well and confined him

there. Thereafter, the remaining accused persons, along with

other unknown assailants, entered the house wherein the

deceased was sleeping. Interestingly, as per the version of the

informant, the house was bolted from inside and was opened by

a tenant namely Ku-mud Ranjan Singh. The problem with the

informant’s version begins from this point itself. As per his

version, the first eye witnesses of the incident ought to have been

Doman Tenti, Daso Mistry, Soordas and Kumud Ranjan Singh.

One person, namely Soordas, was stated to be blind and thus, he

may be excluded. Nevertheless, the prosecution ought to have

examined the three natural witnesses of the incident namely,

Doman Tenti, Daso Mistry and Kumud Ranjan Singh. There is

no explanation for non-examination of the natural eye witnesses.

The version becomes more doubtful when it is examined in light

of his statement that he could not prevent the accused persons as

A-6 had threatened him with a pistol. In the FIR, no pistol has

been attributed to A-6, whereas in the statement recorded before

the Trial Court, this fact was introduced for the first time, which

is indicative of improvement. Furthermore, PW18 got it recorded

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in the FIR that A-6 and others had assaulted him with fists and

slaps, but the said fact was not deposed before the Trial Court in

his examination in chief. The discrepancy assumes greater

seriousness in light of the fact that no pistol has been recovered

from any of the accused persons and if the factum of branding of

pistol is un-der the cloud of doubt, the entire conduct of PW18

becomes doubtful and unnatural, as he did not try to prevent the

accused persons from entering the premises or from abducting

the deceased or from taking away the deceased on their shoulders

in front of his eyes as he was the brother-in-law of the deceased.

21. The other eye witnesses, PW2, PW4 and PW5, de-posed

collectively in favour of the prosecution as they had arrived at the

scene of crime together. At around 10:00 PM on the fateful night,

the said eye witnesses happened to be present at Sikandra Chowk

and they heard some hue and cry at the house of the deceased.

The witnesses were coming together in a jeep from Lakhisarai

and were going towards their home in Ghogsha village, the

village wherein the deceased was married and also the native

village of PW18/informant. PW2 was the driver of PW4. The

testimo-nies of the said PWs have made it clear that while coming

from Lakhisarai to Sikandra Chowk, Ghogsha came first,

followed by Lohanda and Simaltalla. In such circumstances, their

presence at Sikandra Chowk at 10:00 PM must be explained to

the satisfaction of the Court. For, if they were going to their

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village, there was no occasion for them to come to Simaltalla as

it did not fall on their way. But no such ex-planation is

forthcoming from the material on record.

22. Interestingly, this lacuna was duly noted by the High Court

with respect to PW5 as there was no reason for him to be present

at Sikandra Chowk at the time of incident and his testimony was

excluded. However, the same logic was not extended to the

testimony of PW4 as well, as it was equally improbable for him

to be present at Sikandra Chowk at 10:00 PM on the date of

incident. His visit to Sikandra Chowk was not necessitated for

going to his village. Even otherwise, since the three eye witnesses

were similarly placed as per their own version, the rejection of

testimony of one witness ought to have raised a natural doubt on

the testimonies of the other two witnesses unless they had a better

explanation. However, no such doubt was entertained by the High

Court and the impugned judgment offers no explanation for the

same. In light of their own testimonies, none of the three eye

witnesses were required to visit Sikandra Chowk or Simaltalla

for going to their village.

23. The testimonies of the eye witnesses are also impeachable

in light of the other evidence on record. PW21 was the

investigating officer in the case and he had examined the

aforesaid PWs as eye witnesses of the incident. The version put

forth by the eye witnesses meets a serious doubt when examined

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in light of the evidence of DW3 and DW4, the concerned Deputy

Superintendent and Superintendent of Police respectively who

had supervised the investigation of the present case. Both these

officers were examined as defence witnesses on behalf of the

appellants. As per the supervision notes prepared by DW3 during

the course of investigation, PW2 and PW4 got to know about the

incident only when PW18 came running to them after the

incident. PW2, at that time, was sitting in a hotel with Umesh

Singh to have ‘prasad’. Similarly, the evidence of DW4

indicates that on the date of incident, at around 10:00 PM, PW4

was coming from Lakhisarai in his jeep and he saw six-seven

persons fleeing away in a jeep and he identified them as the

accused persons. Thus, PW4 entered the scene after the

commission of offence and he did not witness the act of

abduction. The testimony of PW2 strengthens the doubt as he

deposed that when they reached the police station after the

incident with PW18, neither him nor PW4 in-formed the IO that

they had directly seen the incident. The stark difference between

the versions put forth by the PW21 and DW3/DW4 raises serious

concerns regarding the fairness of investigation conducted by

PW21 and it is a reasonable possibility that the eye witnesses

were brought in to create a fool proof case. The evidence of DW3

and DW4, both senior officers who had exercised supervision

over the investigation conducted by PW21, indicates that the so-

Criminal Appeal No. 1031/2015 and others Page 17 of 26

called eye witnesses of the incident were actually accessories

after the fact and not accessories to the fact.

24. The second limb of the objection against the testimonies

of the eye witnesses is that none of the eye witnesses is an

independent witness of fact. Ordinarily, there is no rule of law to

discard the testimonies of the witnesses merely be-cause they

were known to the victim or belonged to her family. For, an

offence may be committed in circumstances that only the family

members are present at the place of occurrence in natural course.

However, the present case does not fall in such category. In the

facts of the present case, the natural presence of the eye witnesses

at the place of occurrence is under serious doubt, as discussed

above, and for unexplained reasons, the naturally present public

persons were not examined as witnesses in the matter. The nonexamination of natural witnesses such as Doman Tenti, Daso

Mistry, Soordas, Kumud Ranjan Singh and many other

neighbours who admittedly came out of their houses to witness

the offence, coupled with the fact that the projected eye witnesses

failed to explain their presence at the place of occurrence,

renders the entire version of the prosecution as improbable and

unreliable. The eye witnesses, being family members, were

apparently approached by PW18 who in-formed them about the

incident and later, their versions were fabricated to make the case

credible. Notably, when the version put forth by the interested

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witnesses comes under a shadow of doubt, the rule of prudence

demands that the independent public witnesses must be examined

and corroborating material must be gathered. More so, when

public witnesses were readily available and the offence has not

taken place in the bounds of closed walls.

25. Pertinently, the conduct of the eye witnesses also ap-pears

to be unnatural considering that they were all relatives of the

deceased. Firstly, PW18 did not try to prevent the ab-duction.

Even if it is believed that he was held against a pistol, the

statement regarding the existence of pistol comes as an

improvement from his first information given to the police, as

already noted above. Nonetheless, it is admitted that PW2, PW4

and PW5 came in a jeep and they saw the accused persons

leaving with Neelam after abducting her. It is also admitted that

they had identified the accused persons, who were essentially the

relatives of the eye witnesses. In such circumstances, as per

natural human conduct, the least that they could have done was

to follow the accused persons in their jeep. They admittedly had

a ready vehicle with them. Despite so, there was no such attempt

on their part, so much so that the dead body of Neelam was not

even discovered until the following morning as none of the eye

witnesses had any clue as to where the accused persons had taken

away the deceased after abducting her.

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26. One crucial foundational fact in the present case is that the

deceased was residing in her father’s house at Simaltalla.

Although, the Trial Court and High Court have not doubted the

said fact, we have our reservations regarding the same. In

addition to the statements of PW18 (informant), PW23 (sister of

deceased) and PW7 (maternal uncle of deceased), no other

witness has deposed to prove the factum of residence. The

admitted evidence on record sufficiently indicates that various

other tenants were residing in the same house, including Kumud

Ranjan Singh, Education Officer Ram Chabila Singh along with

his daughter and son.

27. The investigating officer PW21 had inspected the house

and no direct material, except some make-up articles, could be

gathered so as to indicate that Neelam was actually residing there.

Admittedly, another woman namely, Chando Devi (sister of Ram

Chabila Singh) was also residing in the same portion of the