Page 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      709  OF 2015 (Arising out of S.L.P. (Crl.) No. 5796 of 2014)

Indradeo Sao and others … Appellants

Versus

State of Bihar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated

28.2.2014, passed by the High Court of Judicature at Patna in

Criminal Appeal (SJ) No. 419 of 1998 and Criminal Appeal (SJ)

No. 437 of 1998, whereby both the appeals are dismissed, and

conviction and sentence recorded by 1st Additional  Sessions

Page 2

Page 2 of 11

Judge, Nalanda at Bihar Sharif in Sessions Trial Nos. 192 of

1994/134 of  1996 (PS Case No.  63 of  1994)  under Section

304B, 498A and 201 of Indian Penal Code (IPC) against the

appellants, namely, Indradeo Sao, Nand Kumar Sao and Raj

Kumar Sao, is affirmed.

2. It is pertinent to mention here that we issued notice in

this  appeal,  through special  leave,  only  on the  quantum of

sentence, and with regard to plea of juvenility of appellant No.

2 Nand Kumar Sao (younger brother of  the husband of the

deceased).

3. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

4. Prosecution  story  in  brief  is  that  appellant  No.  3  Raj

Kumar Sao got married to Sushila Devi (deceased) about five

years before her death.  As per custom, she departed from her

parental house for her husband’s house, about two years after

her marriage.  In the intervening night of 3rd and 4th March,

1994, she died unnatural death.  On 4.3.1994 at about 8.30

Page 3

Page 3 of 11

p.m.,  her  father  PW-2  Saudagar  Sao  gave  a  report  (Fard

Bayan) to the Officer-in-charge of Police Station Hilsa, stating

that his daughter was subjected to cruelty, in connection with

demand  of  dowry  by  her  husband  (Raj  Kumar  Sao),  her

father-in-law (Indradeo Sao), mother-in-law (Rajeshwari Devi)

and brother-in-law (Nand Kumar Sao).  It was further alleged

by the informant Saudagar Singh that the accused demanded

Rs.10,000/- as dowry at the time of her ‘Bidayee’, i.e., when

Sushila left from her parental house to her husband’s family

for the first time, which he could not fulfill and resultantly she

was subject to harassment and cruelty by her husband and

his father, mother and younger brother.  On the basis of Fard

Bayan  (Ext.  4)  crime  case  No.  63  of  1994  was  registered

against  all  the four  accused relating to  offences punishable

under Section 304B, 498A and 201 read with Section 34 IPC.

Investigation was taken up by PW-6 S.I. Kamla Kant Pandey.

On  5.3.1994,  the  Investigating  Officer  (PW-6)  went  to  the

house of the appellant (accused) in village Nadaha but could

not find the body of the deceased on that day.  Accused had

disappeared from their house.  Next day, i.e.,  6.3.1994, the

Page 4

Page 4 of 11

dead body could be recovered from a distance of about half a

kilometer from their house, from a ditch of Dangra Kandha.

The  tongue  of  the  deceased  looked  protruding,  compressed

between the teeth.  The dead body was sealed and the inquest

report (Ext. 5) was prepared.  The dead body was sent for post

mortem examination.   PW-1,  Dr.  Mathura  Prasad  of  Sadar

Hospital, Bihar Sharif, conducted autopsy at 4.15 p.m. on the

very day (i.e.  6.3.1994 when the dead body was recovered).

After  post  mortem  examination,  the  Medical  Officer  opined

that the deceased has died of strangulation.  However, since

he suspected that poisonous substance also might have been

consumed by the deceased, as such, he preserved viscera.  He

has further observed in the post mortem examination report

that though there was no clear ligature mark on the neck, but

on dissection trachea was found broken.   The Investigating

Officer,  after  interrogating  the  witnesses,  and  arrest  of  the

accused, and on completion of investigation, submitted charge

sheet against all the four accused for their trial.

Page 5

Page 5 of 11

5. The  case  was  committed  to  the  Court  of  Sessions,  on

4.5.1994, by the Judicial Magistrate, Hilsa.  After hearing the

parties,  the  trial  court  framed  charge  against  all  the  four

accused  in  respect  of  offences  punishable  under  Sections

304B, 498A and 201 IPC to which they pleaded not guilty and

claimed to be tried.

6. On  this,  prosecution  got  examined  PW-1  Dr.  Mathura

Prasad  (who  conducted  post  mortem  examination),  PW-2

Saudagar  Sao  (informant/father  of  the  deceased),  PW-3

Mahendra Sao (husband of sister of the deceased), PW-4 Ram

Udit Prasad (brother of the deceased), PW-5 Rajkumari Devi

(mother of the deceased), PW-6 S.I. Kamla Kant Pandey (who

investigated  the  crime)  and  PW-7  Surendra  Prasad  Singh

(Officer-in-charge  of  Police  Station,  Hilsa).   Oral  and

documentary evidence was put to the accused under Section

313 of the Code of Criminal Procedure, 1973, in response to

which they stated that  Sushila  died of  diarrhea,  whereafter

DW-1 Baliram Prasad and DW-2 Shiv Kumar, both neighbours

of the accused, were examined on behalf of the defence.

Page 6

Page 6 of 11

7. The trial court, after hearing the parties, found that the

charge of offences punishable under Sections 304B, 498A and

201 IPC stood proved as against all the four accused, namely,

Indradeo Sao (father-in-law), Rajeshwari Devi (mother-in-law),

Raj  Kumar  Sao  (husband)  and  Nand  Kumar  Sao

(brother-in-law),  and  convicted  them  accordingly  on

28.11.1998.  After hearing on sentence on 30.11.1998, each of

the  convict  was  sentenced  to  rigorous  imprisonment  for  a

period  of  ten  years  under  Section  304B  IPC,  rigorous

imprisonment for a period of three years under Section 498A

IPC,  and  rigorous  imprisonment  for  a  period  of  two  years

under Section 201 IPC.  All the sentences were directed to run

concurrently.

8. Aggrieved by said judgment and order dated 28.11.1998/

30.11.1998  passed  by  the  1st Additional  Sessions  Judge,

Nalanda at Bihar Sharif, in Sessions Trial Nos. 192 of 1994/

134 of 1996, Criminal Appeal (SJ) No. 419 of 1998 was filed by

Indradeo  Sao,  Rajeshwari  Devi  and Nand Kumar  Sao.   Raj

Kumar Sao (husband of the deceased) filed separate Criminal

Page 7

Page 7 of 11

Appeal (SJ) No. 437 of 1998.  Both the appeals were heard

together  and  disposed  of  vide  impugned  order  challenged

before us by Indradeo Sao, Nand Kumar Sao and Raj Kumar

Sao.  (Convict Rajeshwari Devi is reported to have died during

the pendency of  the appeal  before the High Court,  and her

appeal stood abated.)

9. We  have  already  mentioned  above,  that  the  impugned

order  is  under  examination  in  this  appeal  only  on  the

quantum  of  sentence,  and  regarding  plea  of  juvenility  qua

appellant No. 2.

10. Considering the plea of juvenility of appellant No. 2 Nand

Kumar  Sao,  on  the  basis  of  documents  before  us,  on

23.2.2015, we directed the Sessions Judge, Nalanda, Bihar, to

conduct an enquiry with regard to the juvenility of appellant

No. 2 Nand Kumar Sao and to send the report to this Court by

13.4.2015.

11. In response to communication made by the Registry of

this  Court  in  compliance  with  our  order,  report  dated

Page 8

Page 8 of 11

31.3.2015 of Additional District and Sessions Judge-I, Bihar

Sharif,  Nalanda,  after  enquiry,  is  received  by  this  Court.

Relevant part of the report is reproduced as under: - “ …………….   

I have taken up the matter afresh and perused all  the  original  documents  related  with  age  of petitioner no. 2, Nand Kumar Sao @ Nand Kumar Chand  filed  by  the  parties  on  affidavit  before  me and from bare perusal of the original matriculation certificates,  admit  card,  registration  receipt  and character  certificate.   I  find  that  every  where  the date of  birth of  Nand Kumar Sao @ Nand Kumar Chand which is said to be petitioner no. 2, the date of  birth  is  recorded  as  08.05.1978.   Though  the certificate  stands  in  the  name  of  Nand  Kumar Chand S/o Indradeo Prasad,  who has claimed on affidavit  that  Nand  Kumar  Chand  S/o  Indradeo Prasad also bears the alias name Nand Kumar Sao (petitioner no. 2) and the father Indradeo Sao had no other son named as Nand Kumar Chand.  This fact  has  also  not  been  controverted  in  any  way before  this  enquiry  or  before  the  matter  earlier required by the court of ACJM, Hilsa, Nalanda on 07.12.1995.

Now coming on the point to test the juvenility of the petitioner no. 2 Nand Kumar Sao, who also bears the alias name Nand Kumar Chand and on the strict  proof  of  the  age as  recorded on all  the original  certificates  filed  by  the  petitioner  no.  2 including  original  matriculation  certificates  duly issued  from  the  office  of  the  Bihar  School Examination  Board-Patna,  recorded  the  date  of birth of the petitioner as 08.05.1978 and I find that this date of birth of the petitioner no. 2 is also duly entered in the admit card and registration certificate

Page 9

Page 9 of 11

in the office of the Bihar School Examination Board, which was issued from the B.S.E.B. office earlier to the date of occurrence.  I have also gone through the established procedure followed in determination of age of any juvenile mentioned in the rule of the juvenile  justice  care and protection of  children in clause-3 as under-

“ in  every  case  concerning  a  child  or juvenile  in  conflict  age determination inquiry shall be conducted by the court or the Board as the case may be the committee by seeking evidence by obtaining –

(a) i.  The  matriculation  or  equivalent certificate  available  and  in  the  absence whereof;

ii. The date of birth certificate from the school  (other  than  a  play  school)  first attended and in the absence thereof;

iii. The  birth  certificate  given  by  a corporation or a municipal authority or a panchayat.

(b) And only in the absence of either (i) (ii) or (iii)  of  clause  (a)  above  the  medical opinion  will  be  sought  from  a  duly constructed  medical  board,  which  will declare the age of the juvenile or child.”..

Thus  on  the  touch  stone  of  the  aforesaid principle  in determination of  age,  I  find and hold that the petitioner no. 2 Nand Kumar Sao @ Nand Kumar Chand, S/o Indradeo Sao was juvenile and was  much  below  the  age  of  sixteen  year  (i.e.  15 years 09 months 26 days) at the time of occurrence

Page 10

Page 10 of 11

FIR  dated  04.03.1994,  Hilsa  P.S.  case  no.  63/94 corresponding to S.Tr. No. 192/94.

Thus in obedience of the Hon’ble Apex Court directions, I am herein submitting my report before your honour to place the same before the Hon’ble Bench as desired.”

12. In view of the above report, it is evident that on the date

of  death  of  Sushila  Devi,  her  brother  in  law  (Devar)  Nand

Kumar Sao (appellant No. 2 before us) was aged 15 years 9

months and 26 days, as such, on further considering the law

laid down by this Court in  Vijay Singh  v.  State of Delhi1,

Vaneet  Kumar  Gupta  alias  Dharminder  v.  State  of

Punjab2 and  Upendra Kumar  v.  State of Bihar3, we are of

the  view  that  the  sentence  recorded  by  the  courts  below

against the juvenile accused is liable to be quashed.  As to the

other appellants, in the facts and circumstances of the case,

we do not find any reason to reduce the sentence, awarded

against them.

1 (2012) 8 SCC 763 2 (2009) 17 SCC 587 3 (2005) 3 SCC 592

Page 11

Page 11 of 11

13. Accordingly, the appeal of appellants Indradeo Sao and

Raj Kumar Sao is dismissed, but that of Nand Kumar Sao is

allowed partly.  We affirm the conviction recorded against him

but considering that he was juvenile on the date of incident,

sentence of imprisonment is quashed.  Appellant No.2 Nand

Kumar Sao shall be set at liberty, if not required in connection

with any other crime.

……………….....…………J. [Dipak Misra]

     .……………….……………J. New Delhi; [Prafulla C. Pant] April 28, 2015.