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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 1708  OF 2015 [ARISING OUT OF S.L.P. (CRL.) NO. 8111 OF 2014]

RAJIV SINGH    ....APPELLANT

VERSUS

STATE OF BIHAR & ANOTHER   ….RESPONDENTS

JUDGMENT

AMITAVA ROY,J.  

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

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

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

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

husband,  in  the  attendant  facts  and  circumstances,  stands

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

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

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'IPC')  and  has  been  sentenced  to  undergo  rigorous

imprisonment for varying terms for the offences involved.  The

High  Court  of  judicature  at  Patna,  having  affirmed  the

conviction & sentence recorded by the learned trial court, the

appellant  seeks redress in the instant  proceedings,  challenge

being  laid  to  the  judgment  and  order  dated  16.05.2014

rendered in Criminal Appeal (SJ) No. 1169 of 2011.  3.  A short preface to the dreadful episode is indispensable.

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

“Archana”)  got  married  on  29.04.2007  with  the  appellant

according to Hindu rites and had duly joined the matrimonial

home. Archana was a practicing advocate and had appeared in

a competitive examination in which, as per the results declared

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

honeymoon trip to Darjeeling and proceeded thereto, by Capital

Express  on  the  same  date.  They  alighted  at  New  Jalpaiguri

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

scheduled, they on 14.08.2007 boarded the same service for the

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

First  Information  Report  lodged  by  the  appellant  with  the

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

Katihar  Junction at  2000 hrs whereafter  they retired for  the

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

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

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

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

was missing from her birth whereafter, he started searching for

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

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

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

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

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

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

and   eventually  lodged  the  First  Information  Report  with

Mokamah G.R.P.S..  4. This account of the introductory facts is available in the

aforementioned First Information Report,  in which noticeably,

the appellant did disclose his presumption that his wife might

have been kidnapped. This information was registered, as FIR

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

0400 PM to 0500 PM.   

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

hours, an information was laid by one Jagdish Chander Sharma

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

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

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

railway  track  whereupon,  he  visited  the  spot  and  found  the

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

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

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

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

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

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

detached hairs from the head which were of black colour.  

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

10.10  PM  and  a  report  based  thereon  was  prepared.  The

findings  as recorded inter  alia  did disclose  that  nothing  was

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

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

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

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

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

death was due to fall from  train.

7. Meanwhile,  the parents of Archana having enquired on

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

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

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

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

Prasad  requested  his  cousin  Akhilesh  Kumar  to  identify  the

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

propose. Incidentally, the dead body had been recovered near

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

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

would  appear  from the   letter  dated  14.09.2008 of  Akhilesh

Kumar, addressed to the Station House Officer, Railway Police

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

opinion  that  it  was  not  of   Archana.  According  to  Akhilesh

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

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

reasons.  

1. That the hair of head was missing. 2. The face was comparatively small. 3. There was no mole on the chick. 4. The physique of the dead body was comparatively

thin. 5. Neither the bangles were found in the hands nor

was it stated by the Jamadar of Azam Nagar that the same was found at the place of occurrence.

6. There was no under garments on the body. 7. There was simple salwar-suit on the dead body. 8. The age seems to be less. 9. At that time I talked to cousin Ravi Shanker and

aunt in relation to built  up and appearances of the  dead  body  many  times  and  after  due consideration with the officer  in charge, Katihar GRPS, Jamadar Azam Nagar GRPS and Jamadar of Mokama GRPS I came to a conclusion that the dead body was not of Rani Archana.  

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

examination on 19.8.2007 in which it was noted that the same

was in an advance stage of decomposition and that the right

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

cause of  death could not be ascertained and the viscera was

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

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

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

suggesting thereby that  death had occurred on 13.8.2007 or

prior thereto.

9. While   the  investigation  on  the  report  lodged  by  the

appellant was underway,  the mother of Archana, on 5.9.2007

lodged a complaint  in the court  of  Chief  Judicial  Magistrate,

Patna  against  the  appellant,  his  parents,  his  brothers  and

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

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

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

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

make  her  work  as  a  domestic  maid   for  all  intents  and

purposes.  Apart from being ridiculed for not getting selected in

the judicial service examination to earn a living, her relevance

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

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

lakhs from her parents  so as to complete the construction of

their house and also to furnish the same.  Besides expressing

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serious apprehension in view of the sudden programme of the

couple  to visit Darjeeling without prior information to her, the

complainant  also  accused  the  appellant  and  his  family

members of a conspiracy to eliminate Archana so as to facilitate

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

earning handsome dowry.   

10. The  complainant  however  admitted  that  on 12.8.2007,

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

whereafter,  she  could  not  talk  to  her  inspite  of  repeated

attempts  as  her  cellphone  had  remained  switched  off.   The

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

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

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

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

complainant’s  husband  after  ascertaining  that  the  appellant

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

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

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

himself and his family members who were responsible for the

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

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

accused him  and his family members of having murdered her

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

body so as to efface  all incriminating evidence.  She expressed

reservation  about  the  course  and  quality  of  the  ongoing

investigation and requested that the complaint be forwarded to

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

initiate   a proper investigation in order to make the accused

persons stand trial.  The complaint was made under Sections

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

Prohibition Act, 1961.  

11. After  the  investigation  that  followed  on  the  complaint,

charge-sheet  was submitted under  Section 498A IPC against

the  appellant  alone  and  the  inquisition  was  kept  pending

against the other accused persons.   As the materials on record

would  disclose,  thereafter  the  learned  Magistrate  concerned,

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

behalf of the prosecution and, being satisfied on a consideration

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

case  against  the  appellant  under  Sections

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

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

to  the  Court  of  Sessions.   Charge  was  subsequent  thereto

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

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

tried”.

12. At the trial, the prosecution examined twelve witnesses

whereafter the statement of the appellant was recorded under

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

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

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

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

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

IPC  and  for  two  years  each  for  the  offences  under  Sections

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

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

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

month.  All the sentences were ordered to run concurrently.

13. Having unsuccessfully  appealed before the High Court,

the appellant seeks redress  before this Court.

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

the  appellant,  Mr.  Subramonium  Prasad,  learned  senior

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

counsel for the respondent No. 2.

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

threshold in order to facilitate a correct insight into the evidence

on record.

16. Referring  to  the  provisions  of  the  Indian  Penal  Code

under which the appellant  stands convicted,  Mr.  Basant has

persuasively argued that in the facts and circumstances of the

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

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

entitled to an honourable acquittal.  The learned senior counsel

has pleaded that the prosecution having failed to establish the

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death of Archana beyond all reasonable doubt and further that

it  was  as  a  consequence  of  demand  for  dowry  or

harassment/cruelty  arising  therefrom  or  in  connection

therewith,  the  essential  pre-requisites  of  the  offences  under

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

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

course of  investigation to be that  of  Archana,  learned senior

counsel has urged that even assuming without admitting it was

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

was  not  accidental  but  homicidal,  the  offence  under  Section

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

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

to  be  portrayed  is  inherently  improbable  and  illogical  in

defiance of logic and thus ought to have been rejected outright

by the courts below.

17. Elaborating  the  arguments  in  the  above  dimensions,

learned senior counsel adverted, in particular to the testimony

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

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

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Katihar/Barauni stations much beyond Azamnagar near which

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

report  dated  19.8.2007  which  recorded  that   the  time  lag

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

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

as  she  was  alive  in  the  intervening  night  of  14.8.2007  and

15.8.2007.   Apart  from contending  that  the  dead  body  was

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

her  on a  thorough examination thereof,  which ruled out  the

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

learned counsel has argued that the absence of any explanation

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

also  conclusively  evidence  the  fact  that  it  was  not  that  of

Archana.   The  learned  senior  counsel  referred  to  the

discrepancy in the wearing apparels of the dead body and that

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

considered  along  with  the  other  factors  bearing  on  the

identification of the dead body, authenticated in unmistakable

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

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dismissed the authenticity and the probative worth of the report

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

conducted in an accredited laboratory as per the prevalent rules

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

scientific  analysis  of  the  sample  being  undertaken  and  the

genuineness of the conclusion arrived at on the basis thereof.

Apart from asserting that there was lack of authentic evidence

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

the  Archana  for  the  DNA  test,  learned  senior  counsel  also

rejected  the  testimony  of  Dr.  Shyam  Bahadur  Upadhyay

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

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

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

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

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

Basant urged that  the prosecution having offered to examine

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

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

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

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even  the  parents  and  other  relatives  of  Archana  were  not

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

track in the vicinity of  Azamnagar police station was that of

hers  and therefore had filed a writ  petition before  the High

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

dismissed on 8.9.2008.

18. Learned senior  counsel  for  the appellant  further urged

that  in  absence  of  any  convincing   evidence  on  record  that

immediately before the incident, Archana had been subjected to

cruelty/harassment by the appellant for or in connection with

the demand for dowry, the charges relatable thereto are wholly

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

transpired that a personal diary of Archana had been retrieved,

the  same for  inexplicable  reasons  had  been withheld  by  the

prosecution.   Apart  from contending  that  such  an  omission

raises   an  adverse  inference  against  the  prosecution,  the

learned senior counsel also urged that the evidence with record

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

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

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

Basant  has  argued  that  having  regard  to  the  proved

circumstances pertaining to the travel of the couple in the train

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

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

was  found  cheerful  in  the  company  of  the  appellant,  the

prosecution version of poisoning her by him and disposing of

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

passengers  in  the  compartment   is  wholly  impossible,

impracticable,  unrealistic  and  thus,  ought  to  be  rejected  in

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

maintained that the prosecution having utterly failed to prove

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

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

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

that of Archana.

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

pressed into service the following decisions of this Court.

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

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

SCC 724.

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

counsel, leading the arguments on behalf of the respondents,

urged that the charges leveled against the appellant had been

duly  proved  and  thus  his  conviction  and  sentence  does  not

warrant any interference.  Referring to the complaint filed by

the  mother  of  Archana,  in  particular  and the  statements  on

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

the learned senior counsel asserted that the same in totality did

unambiguously  demonstrate  that  soon  after  the  marriage,

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

in connection with the demand for dowry and that the charges

qua the appellant  pertaining thereto had been rightly leveled

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

senior counsel,  even assuming that Archana had been found

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

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

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

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

submitted that the conduct of appellant of travelling to Patna

and returning to Mokomah to eventually lodge a belated  FIR

about  the  incident,  is  not  only  opposite  to  normal  human

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

complicity in the crime.  Besides underlining that the appellant

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

counsel pleaded that the delayed FIR by him was a strategic

move  to  screen  himself  from  the  incident  and  divert  the

investigation in the wrong direction.  Mr Prasad was critical as

well  of  the  manner  in  which the  prosecution was conducted

contending that no sincere effort was made to elicit the truth

from the material witnesses including the co-passengers in the

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

Prasad argued that the evidence of PW10 would not exclude the

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

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

with Archana, could  be acted upon independently to the said

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

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exasperated  with  the  inaction  of  the  investigating  agency  in

diligently  probing  into  the  incident,  did  file  a  complaint  on

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

habeas  corpus  though  can  be  construed  to  be  a  desperate

initiative, induced by inconsolable parental susceptibilities, the

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

proved against the appellant.  The following decisions were cited

to rest the submissions adverted to hereinabove.

1. Mohd. Imran Khan vs. State Government (NCT of Delhi) (2011) 10 SCC 192

2. State of Gujarat vs. Anirudhsing and another (1997) 6 SCC 514

3. Rajesh Kumar and another vs. State Government NCT of Delhi (2008) 4 SCC 493

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

5. Rattiram  and  others  vs.  State  of  Madhya Pradesh through Inspector of Police  (2012) 4 SCC 516

6. Rohtas  Singh  &  others  vs.  State  &  Another (2011) II AD (Delhi) 612 (High Court of Delhi)

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

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

documentary  adduced  by  the  parties,  recorded  concurrent

convictions  against  the  appellant,  having  regard  to  the

contentious  assertions  and  being  the  final  Court  of

adjudication, we feel inclined to undertake a summary scrutiny

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

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

course of arguments.

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

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

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

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

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

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

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

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

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

that  the construction of  their  house could be completed and

that the same could be furnished with the necessary household

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articles.   This  witness  further  stated  that  her  daughter’s

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

the  demand for  dowry being made by the  appellant  and her

father and the insistence of the appellant to invest in mutual

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

purchase of units of Tata Mutual Fund by making the appellant

as the nominee and transfer thereof to his joint account with

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

examination in which Archana had appeared were declared on

10.8.2007  in  which  she  was  unsuccessful.   He  expressed

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

when they received a phone call on 10.8.2007  from Archana

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

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

was switched off.  The witness also mentioned about the queries

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

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

the mutual fund whereafter the couple became incommunicado

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

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his  cell  phone  that  Archana  had  gone  missing.  The  witness

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

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

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

instructed  the  GRP  personnel  to  detain  the  appellant  by

confiding  in  them that  he  had committed the  murder  of  his

daughter.  The witness mentioned that on 16.8.2007 when he

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

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

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

witness further stated that on being shown the photographs of

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

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

taken  from  him  and  his  wife  which  after  the  necessary

examination did match with the sample of the viscera and DNA

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

been murdered by forcefully administering poison to her by the

appellant in connivance with his family members out of their

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

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

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

been drafted by his advocate on their instructions.

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

Archana, which according to him, was made available during

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

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

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

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

the  family.   The  witness  however  referred  that  Archana  had

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

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

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

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

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

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

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

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

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

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that the mutual fund investments had not been transferred to

the account of the appellant or got encashed by him.    

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

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

father, PW1.  Apart from reiterating  in general the narration

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

the appellant and the reported behaviour meted out to her  in

connection with  dowry  demands,  this  witness  emphasized in

particular with regard to the investments in TATA Mutual Fund

said to have been made on the persistent insistences  of the

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

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

the relevant time posted as Territory Manager in Tata Mutual

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

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

in the  appellant  so  as  to  have  the  mutual  fund investments

transferred thereto and reap unlawful gain therefrom following

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

of Archana said to have been recovered from her matrimonial

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

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

requested his cousin Akhilesh Kumar  Singh to identify as to

whether  the  dead  body  found  in  the  vicinity  of   Ajamnagar

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

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

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

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

authenticate  that  the  preserved  viscera  was  their  generic

product.  He  however  mentioned   that  on  09.09.2007  the

appellant had intimidated him and had also threatened to kill

him unless the case was withdrawn but admitted that he had

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

cross-examination,  this  witness  admitted  that  the  money

invested  in  the  mutual  fund  was  intact  and  had  not  been

withdrawn by the appellant.

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

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

which her daughter had been subjected during her stay in the

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matrimonial home. She admitted to have talked to her daughter

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

13.08.2007  and  14.08.2007  as  her  cell  phones  had  been

switched  off.   She  referred  to  her  conversation  with  the

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

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

hearing this,  her husband PW1 had advised the appellant to

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

at that place.    

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

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

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

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

course of the investigation and admitted to have sent Akhilesh

Kumar to identify the same. The witness stated that Akhilesh

Kumar  however could not identify the dead body whereafter

post-mortem  examination  was  conducted  thereon  on

19.08.2007.  The witness also mentioned about  the DNA test

conducted by comparing the viscera and their  blood samples

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

She  proved  the  complaint  filed  by  her  on  05.09.2007  and

admitted that the same had been drafted by their advocate on

their instructions. She denied the suggestion that she had not

stated before the Investigating Officer about the dowry demands

made  by  the  appellant  and  his  family  members  and  the

ill-treatment to which Archana had been subjected.  According

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

from her husband were taken at Rajvanshi Hospital.   

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

Capital Express on 14.08.2007 stated that he had been allotted

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

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

upto  Barsoi  Station  and  that  he  disembarked  at  Barh,  his

destination.   He  testified  that  on  being  shown  some

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

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

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

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

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belligerent  or  weeping  so  long  as  he  was  present  in  the

compartment.   

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

travelling  by  the  same  train  from  Kishanganj  to  Patna  on

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

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

Sumit  Dokania,  PW6.   The  witness  stated  that  after  having

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

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

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

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

traceable.  He also confirmed, on being shown the photographs

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

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

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

cross-examination, this witness affirmed that the couple were

sitting on their berths at Katihar and that both were behaving

normally.  

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

brother  PW5 who also  could  recognize  the  couple  when was

shown their photographs and identified them to be that of the

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

the train on 14.08.2007.

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

affirmation that he was traveling on the same train on Berth

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

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

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

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

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

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

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

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

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

Barauni,  the witness reiterated that  she had been wearing a

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

had been conducting themselves  normally.

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

as Medical Officer at Katihar Sadar Hospital and had performed

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

stated with reference  to the records  that the body was almost

decomposed with maggot formation. He further mentioned that

there was absence of hair and  disfigurement of the face and

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

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

ascertained  and  thus  the  viscera  was  preserved  for  forensic

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

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

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

testified  further  that  he  had not  found the  external  signs  of

Sulphas in the dead body.   

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

Azam Nagar  Police  Station  on 18.08.2007 deposed,  that  one

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

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

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

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village Daulatabad.  The witness stated that, on receiving this

information,  the  police  arrived  at  the  site  and recovered  the

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

that  the dead body was thereafter  sent  to the Katihar Sadar

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

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

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

village Daulatabad and  2 KM from Azam Nagar Railway Station

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

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

prostrate.  This witness however mentioned that the dead body

had  on  it  clothes  of  white  and  pink  colour.    In

cross-examination,  the  witness  stated  about  the  visit  of

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

Archana at Katihar Station for identifying the dead body and

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

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

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

family members of Archana, they confirmed that the same were

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

claim the dead body.

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

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

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

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

from the parents of  the Archana were received in connection

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

05.06.2008.  He testified that the three samples were analyzed

and the test revealed that the viscera tissue were the generic

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

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

one Sanjay Kumar, computer staff on his instruction and had

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

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

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

analysis was a usual process.  He deposed that the technician

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

Directorate  of  Forensic  Science,  Ministry  of  Home  Affairs,

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

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

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

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

the viscera of the dead body also contained poisonous contents

like aluminum phosphate and LARAZEPAM, commonly known

as ACTIVAN .   

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

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

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

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

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

same were not accompanied by any authentication card for DNA

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

authentication card was required to be sent along with samples,

which ensured the sanctity thereof.  That an authentication card

also  used  to  carry  the  photograph  of  the  person  giving  the

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

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

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

independent witness and is to be countersigned by the doctor

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

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

elsewhere.   He  admitted  that  there  was  a  direction  of  the

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

the government laboratory in case there was no infrastructure to

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

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

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

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

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

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

associated  with  the  analysis  for  the  DNA  test,  had  received

training in the said laboratory from 16 to 18th July, 2008, i.e. for

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

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

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

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

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

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

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

science.    

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

narrated  the steps taken by her in the course of investigation

and  stated  that  she  submitted  a  charge-sheet  against  the

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

the process thereafter.   She stated about the collection of the

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

applied  for  obtaining  the  blood  specimens  of  the  parents  of

Archana  by  filling  an  application  before  the  CJM,  Patna.

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

30.05.2008, she accompanied  the parents of Archana to the

Rajvanshi Hospital, where their blood samples were collected by

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

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

for DNA test and subsequent thereto forwarded the sample of

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

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

completion  of  the  investigation,  she  submitted  charge-sheet

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

36. In cross examination, this witness with reference to

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

and her husband PW1 had been in continuous touch with the

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

that there was no allegation of demand of dowry from Archana

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

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

complainant  PW3  had  not  expressed  anything  about  the

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

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

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

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

witness  also  confirmed with  reference  to  the  case  diary  that

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

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

The witness also stated that PW1 had not made any statement

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that the appellant had asked him to purchase units of Mutual

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

any statement that the appellant had opened any joint account

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

Branch at Exhibition Road, Patna on 21.07.2007 was made as

well.  The Investigating Officer also deposed that on enquiries

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

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

appellant  nobody did complain of any harassment meted out to

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

recollect  as  to  whether  she  had  put  her  signatures  on  the

envelope  carrying  the  samples,  as  a  witness.  She  however

candidly admitted that she had not recorded in the case diary

that she had put her signatures on the envelope containing the

blood samples.  She also stated that the envelope carrying the

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

through the court.   The Investigating officer though mentioned

that  she  along  with  the  parents  of  Archana  had  been  to

Rajvanshani Nagar Hospital, Patna on 4.6.2008 and that Ashok

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

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

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

presence by the doctor.    

37.  Shambu  Prasad  Tiwari  (PW12),  Assistant  Sub

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

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

which included a pair of brown coloured sleepers and ladies

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

comb, bindi, mirror and a hair band.  

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

appellant categorically denied the veracity of the evidence with

regard to  alleged pressurization of Archana to bring Rs. 2.5

lakhs from her parents for the construction of their house and

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

parents and  relatives.  He also denied the imputation to have

taken  Archana  to  Darjeeling  without  the  permission  of  her

parents.    He also denied the accusation that he had planned

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

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

Archana to be eventually appropriated by him.  He denied as

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

Archana to facilitate the deposit of the investments in mutual

funds and had pressurized her parents  for making deposits

with regard thereto.  In specific terms, he particularly denied

the  allegation  that  on  their  way  back  from  the  tour  on

14.8.2007 by Capital  Express, he had committed murder of

Archana and had thrown her dead body on the railway tracks

near  Daulatabad  which  fell  within  the  limits  of  Azamnagar

Police Station. He also stoutly refuted  the imputation that he

had made Archana to consume poisonous substance on the

way  from  New  Jalpaiguri  by  the  Capital  Express  so  as  to

facilitate her murder.  He however admitted to have lodged a

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

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

contain  the  true  version  of  the  episode.   He  expressed

ignorance about the DNA test report and  denied the allegation

of conspiracy  with his parents and other relations  to murder

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

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

prevented  from  doing  so  being  detained  by  the  Mokamah

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

relevant time, posted as Additional District Judge had misused

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

wrong report submitted against him under Sections 182/211

of IPC.

39. The  evidence  of   the  defence  witnesses  Shiv  Kumar

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

couple   had been living a happy married life  in  the marital

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

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

at Exhibition Road, Patna  stated against any deposit in the

joint account of the appellant and  Archana from Tata Mutual

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

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

reference to his case diary that the appellant on 15.8.2007 had

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

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

was registered .  He stated that in course of investigation that

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

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

brother of Archana had disclosed that there was no dissension

between the parties.  He also mentioned that Subhash Chander

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

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

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

effect that appellant used to harass his daughter and used to

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

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

traveling  in  the  Capital  express  on  14.8.2007,  he  also

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

had stated that Archana was wearing a green coloured dress.

He also mentioned that   Naveen Kumar Mishra (PW7)   also

reaffirmed  that  Archana was wearing a green coloured dress.

He  with reference to the case diary confirmed  the version of

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

of Archana.

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

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

investigation to visit, New Jalpaiguri, Gangtok, and Darjeeling

to  enquire  about  the  missing  female.   He  stated  that

photographs  of  the  couple  had  been  given  to  him  for  the

purposes of the enquiry   and that on  the investigation being

made,   the  proprietors/managers  of  the  concerned  travel

agencies and hotels at these places confirmed that the couple

had  availed  their  services/facilities  between  11.8.2007  and

14.8.2007.    This  witness  stated  to  have  recorded  the

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

Capital Express on 14.8.2007 who recognized the couple from

the photograph  and affirmed that he had seen both of them

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

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41. Having  regard to   the  overall  factual  conspectus the

searching queries  warranted for  the  judicial  scrutiny in the

attendant facts and circumstances can be listed as hereunder:

1. Whether Archana had died  out of burns or

bodily  injuries  or  whether  her  death  had

occurred  otherwise  than  in  normal

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

accidental  and  neither  suicidal  nor

homicidal? 3. Whether  soon  before  her  death,   she  had

been subjected to cruelty and harassment by

the appellant and any of his relatives for or in

connection with demand for dowry?

42. Undisputedly,  the marriage of the couple had been

solemnized on 29.4.2007  and thus the unfortunate incident

had occurred within seven years therefrom.  They had been

returning from their honeymoon trip when the catastrophe

intervened.  That in the fateful  evening of  14.8.2007 they

were travelling by Capital Express which they had boarded

at New Jalpaiguri and were heading for their nuptial home

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

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

authenticity of the  train schedule of  Capital Express  has

not been controverted.  As has been adverted to hereinabove,

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

travelling in  the  same compartment,  had seen the  couple

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

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

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

Archana by the prosecution was recovered by the  railway

track in a bush near Azamnagar Police Station.  43. A cursory glance of the train schedule would disclose

that the distance between Azamnagar junction and Katihar

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

same is 1 hour 49 minutes.  In between Katihar junction

and  Barauni  junction,  there  are  12  stations.   Between

Barauni  junction  and  Bakhtiarpur  junction,  there  are

amongst  others,  Mokamah junction  and Barh.   The train

schedule  further  evinces  that  the  distance  between

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

the train is to cover in 1 hour 23 minutes.    

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

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

in the train  till Barauni junction which is several stations

away from Azamnagar Station and distanced by a journey of

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

the  consistent  evidence  of  these  witnesses,  who  have  not

been declared hostile by the prosecution, it is very unlikely

that the dead body recovered near Azamnagar station could

have been, to start with, that of Archana.  

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

her family members had claimed that  the dead body is  of

hers.   Significantly  as  well,  the  letter  dated  14.9.2008

addressed by Akhilesh Kumar Singh, to the Station House

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

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

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

nine reasons in support of his unqualified conclusion to that

effect.   These having been once extracted hereinabove,  for

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

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to  mention,   the  reasons  cited  touch  upon  the  physical

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

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

Akhilesh Kumar  had not been examined by the prosecution

for reasons best known to it.

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

to the probable time of death also compounds the mounting

difficulties of the prosecution.  Apart from being silent about

the  cause  of   death  of  the  female  whose  dead  body  was

subjected to autopsy,  it is mentioned in no uncertain terms

that  time  lag  between  the  death  and  the  post-mortem

examination  was  more  than  six  days.  Arithmetically,  thus

death  had  occurred  to  the  female  concerned  prior  to

13.8.2007 which argumentatively as well suggests to rule out

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

and travelling in Capital Express in the intervening night of

14.8.2007 and 15.8.2007 much past the Azamnagar Station.

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

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

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of time between the death and the post-mortem examination

of the dead body to the above effect.   

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

description of the wearing apparels of Archana and that of

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

deposed that she had been wearing a green coloured salwar

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

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

Whereas the prosecution had made an endeavour to prove

that  the  wearing  clothes  of  the  dead  body  were  that  of

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

in  categorical  terms  denied  that  those  were   hers   as  is

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

Azamnagar Police Station.     

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

disclose that the viscera of the dead body did contain highly

poisonous substance as mentioned therein. Having regard to

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

travelling  throughout  the  evening  and  as  seen  by  the

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

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

the  burden of  the  prosecution to establish as to  how and

when she was administered poison, in order to substantiate

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

semblance  of  either  an endeavour  or  any evidence  in  this

regard.   

49. The  above  notwithstanding   the  sheet  anchor  of  the

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

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

was  the  generic  product  of  the  parents  of  Archana.   The

relevant  extract  of  the  report  Exh.14  is  extracted

hereinabelow.

“  From  the  above  analysis,  it  is  concluded  that D.N.A. profile to the exhibit marked  ‘A” is generic produced of  D.N.A.  profile  of  exhibits  marked ‘B’ and ‘B1’.”

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

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

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

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

report being one from the government scientific  expert, the

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

the  trial  court  in  its  discretion,  the  prosecution  had

voluntarily offered this witness to prove the same.  A bare

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

does  not  disclose  any  scientific  data  on  which  the  above

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

testimony of PW10 that the samples were not analyzed at the

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

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

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

test/serology  and  he  himself  was  not  present  when  the

analysis  was  conducted.  He  admitted  to  have  sent  a

technician  named  Shiv  Kumar,  who  had  taken  two  days

training in the same laboratory, to undertake the exercise.

The  prosecution   has  omitted  to  examine  Shiv  Kumar  to

establish clearly the process that was pursued to conduct the

analysis.   The evidence  with regard to collection of  blood

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samples  of  the  parents  of  Archana   is  shaky  and

unconvincing  as  well.   The  samples,  as  the   PW11

Investigating Officer has admitted, have been forwarded by

her directly without routing the same through the court.  The

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

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

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

another government laboratory.   

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

details of the tests undertaken in support of the conclusion

as  recorded  in  the  report.   The  samples  were  not

accompanied by  the authentication card for DNA test as was

necessary.  This assumes significance as the authentication

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

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

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

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

in  view  of  the  shortcomings  and  deficiencies  noticed

hereinabove, thus fail to inspire the confidence of this Court

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

was that of Archana.  

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

constrained to hold that the prosecution has failed to prove

beyond reasonable doubt that the dead body retrieved from

the  bush  near  the  railway  tracks  in  the  vicinity  of

Azamanagar Police Station was that of Archana.  

53. The authorities cited on behalf of the respondents with

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

of  the  probative  worth  of  the  DNA  test  report  sans   the

evidence of PW10 are distinguishable on the  facts and are

thus of no avail to them. The prosecution having examined

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

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

cannot be permitted to forsake the testimony of this witness

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

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

tests  conducted  and  the  results  thereof  permitting   the

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

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facto  also  does  not  meet  the  requirements  of  an  expert

opinion to decisively conclude that the dead body was that of

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

document  to  conclude  that  the  dead  body  was  that  of

Archana.    Consequently, on the basis of the investigation

and the  materials  produced,  the  prosecution  has  failed  to

prove the  factum of death of Archana.

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

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

Archana  had  also  filed  a  writ  petition  seeking  a  writ  of

habeas corpus in the  year  2008 before  the  High Court  at

Patna  which  on  8.9.2008,  having  regard  to  the  ongoing

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

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

though  understandably  was  a  desperate  bid  to  locate  her

missing daughter, is equally suggestive of the fact that  she

along with her family  was not fully convinced that the dead

body was that of hers.

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

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

cruelty or harassment to Archana by  the appellant  or his

family members for  or  in connection with any demand for

dowry  soon  before  the  incident  of  her  mysterious

disappearance.   A  plain  perusal  of  the  testimony  of  the

investigating  officers  involved,  indicates  that  prior  to  the

complaint  dated  5.9.2007,  no  allegation  of  cruelty  or

harassment  for  or  in  connection  with  dowry  demand  had

been made against the appellant or his family members. The

testimonies of Kalpana Kumari (PW11) and Kundan Kumar

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

determination.   Even the  contents  of  the  complaint  dated

5.9.2007 do not unassailably establish cruelty or harassment

for or in connection with dowry demand as contemplated by

Sections  498A  and  304B   IPC  when  juxtaposed  with  the

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

brother of Archana in their depositions have admitted as well

that  the money invested in  the  mutual  funds had neither

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been withdrawn by the appellant nor  had been diverted for

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

written  by  Archana had been seized by the police in the

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

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

been  produced   at  the  trial  and  as  complained  by  the

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

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

this  premise,  the improvement in the versions of  Subhash

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

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

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

into  insignificance  as  well  in  the  face  of  failure  of  the

prosecution to prove the death of Archana.   

56. Having regard to the contents of the complaint dated

5.9.2007, there have been visible improvements with regard

thereto  at  the  trial  which  make  these  imputations

untrustworthy on this ground also.  Though the conduct of

the appellant in not informing the parents of Archana in time

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about the episode and in lodging the complaint at Mokamah

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

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

collaboration with his family members, we are constrained to

conclude that  in absence of  any overwhelming evidence in

support of  such perception, such an indictment cannot be

entertained.   Besides  the  fact  that  individuals  react

differently at varying situations, it was not unlikely  that the

appellant having found Archana missing from her berth while

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

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

process,  had reached Patna junction.   His version that  he

being in a bewildered and anxious state of mind  had been

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

and that he eventually did file his complaint,  there cannot

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

delay  or  misdirect   the  investigation  in  the  matter.

Incidentally, the mother of Archana had talked to him over

cell phone while he was at Mokamah and on the instructions

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

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

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

to withdraw the case also does not merit acceptance as he

had  admitted  that  he  neither  informed  about  this

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

connection therewith.   

57 Even  assuming  that  the  suggested  case  of  the

prosecution is that the appellant had administered poison to

Archana after  the  train  had reached Katihar  junction and

that thereafter he had disposed of her moribund body out of

the  running  train,  it  is  very  unlikely  that  these  activities

would have gone unnoticed by any of the passengers in the

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

of  the  short  duration  runs  of  the  train  through  the

intervening  stations  with  intervals   of  an  average  of  15

minutes in between, in course whereof it might have stopped

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

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our comprehension, such a proposition is wholly incredible

and in defiance of  logic.

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

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

Evidence  Act  is  not  available  to  the  prosecution  as  the

essential foundational facts to trigger such presumption have

remained unproved.  The prosecution has failed to establish

beyond reasonable doubt the death of Archana.  To reiterate,

the  evidence  as  a  whole  bearing  on  dowry  demand  and

harassment or ill-treatment in connection therewith, is also

not convincing.

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

are  thus  constrained  to  hold  that  in  the  facts  and

circumstances of the case, the prosecution has failed to prove

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

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

examine and evaluate the evidence on record  in the right

perspective  both  factual  and  legal  and  thus  have  grossly

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

charges.

60. It is well entrenched principle of criminal jurisprudence

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

certain and explicit evidence to warrant legal conviction and

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

Howsoever   grave  the  alleged  offence  may  be,  otherwise

stirring the conscience of any court, suspicion alone cannot

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

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

unmistakable  terms,  it  is  the  mandate  of  law  that  the

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

prove the charge(s) beyond all reasonable doubt.

61. The above enunciations resonated umpteen times to be

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

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

paragraph 21 as hereunder:

“21. Suspicion, however grave it may be, cannot take the  place  of  proof,  and  there  is  a  large  difference between something that “may be” proved and “will be

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proved”.  In  a  criminal  trial,  suspicion  no  matter  how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between  “may be”  and  “must  be”  is  quite  large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and  unimpeachable  evidence  produced  by  the prosecution,  before  an  accused  is  condemned  as  a convict, and the basic and golden rule must be applied. In  such  cases,  while  keeping  in  mind  the  distance between “may be” true and “must be” true, the court must  maintain the vital  distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all  features of the case,  as  well  as  the  quality  and  credibility  of  the evidence brought on record. The court must ensure that miscarriage of  justice is  avoided and if  the facts  and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.”

[Emphasis laid by the Court]

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

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

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

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

his innocence, the view which is favourable to the accused

should be adopted.  

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

cannot take the place of proof and the prosecution case to

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

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

unimpeachable  evidence  to  rule  out  any  possibility  of

wrongful  conviction  of  the  accused  and  resultant

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

undertake  an  exhaustive  and  analytical  appraisal  of  the

evidence on record and register findings as warranted by the

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

does not call for multiple citations to further consolidate the

same.

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

propounded that a presumption under Section 113-B of the

Evidence  Act   is  attracted  only  in  case  of  suicidal  or

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

was proclaimed in Sher Singh (supra)  that the harassment

and  cruelty  by  the  husband  has  to  have  a  perceptible

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connection with the dowry demand for his prosecution and

punishment under Section 304B IPC.

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

Dennis while dwelling on the theme of allocation of burden in

criminal cases, elaborated on the significance and purport of

presumption of innocence and the general rule of the burden

of  proof.   While  reiterating  the  fundamental  notion  of

criminal  jurisprudence,  that  a  person  is  presumed  to  be

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

criminal case is on the prosecution to establish the guilt of

accused  beyond  reasonable  doubt,  the  author  underlined

that the acknowledged justification of such presumption is

that  the  outcome  of  a  wrong  conviction  is  regarded  as  a

significantly  worse  harm  than  wrongful  acquittal.    

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

been  observed  that  in  liberal  states,  the  rule  about  the

burden  of  proof  has  been  elevated  to  the  status  of

fundamental  human right encompassing  the assurance of

liberty, dignity and privacy of the individual and  from this

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standpoint it is essential that the state should justify  fully

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

committed an offence, thereby abusing the freedom of action

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

of  such  presumption  finds  insightful  expression  in  the

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

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

“There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional  protections  of  the  accused become.  The  starting  point  of  any  balancing enquiry  where  constitutional  rights  are concerned must be that  the public interest in ensuring  that  innocent  people   are  not convicted and subjected to ignominy and heavy sentences  massively  outweighs  the  public interest  in ensuring that  a particular criminal is brought to book …. Hence the presumption of innocence, which serves not only to protect a particular individual  on trial, but to maintain public confidence in the enduring integrity and security of the legal system.  Reference to the prevalence  and  severity  of  a  certain  crime therefore does not add anything new or special to the balancing exercise.  The perniciousness of  the  offence  is  one  of  the  givens,  against which the presumption of  innocence is  pitted from the beginning,  not  a new element to  be put  into  the  scales  as  part  of  a  justificatory

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balancing  exercise.   If  this  were  not  so,  the ubiquity and ugliness argument could be used in  relation  to  murder,  rape,  car-jacking, housebreaking,drug-smuggling,  corruption… the list is  unfortunately almost endless, and nothing  would  be  left  of  the  presumption  of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.”        

 The quintessence of the philosophy embedded in the above

extract is that the presumption of innocence serves not only

to  protect  a  particular  individual  on  trial  but  to  maintain

public confidence in the enduring integrity and security of

the legal system.

67. The evidence adduced by the prosecution dominantly is

circumstantial  in  nature  with  no  direct  proof  of  the

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

trite  proposition,  judicially  evolved,  that  circumstantial

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

as to rule out every possible hypothesis of innocence of the

accused and must without any element of doubt unerringly

point to such culpability.  This enunciation has stood the test

of  time  over  the  years  and  the  five  golden  principles

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propounded by this Court in  Sharad Birdhichand Sarda

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

153)  which  still  authoritatively  govern  the  process  of

appreciation  of  the  circumstantial  evidence  and  constitute

the  acid  test  to  determine  the  guilt  or  innocence  of  an

accused person, are quoted hereunder:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1)  the  circumstances  from  which  the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not  “may  be”  established.  There  is  not  only  a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held  by  this  Court  in  Shivaji  Sahabrao  Bobade v. State  of  Maharashtra where  the  following observations were made: (SCC p. 807, para 19)

“19. … Certainly, it is a primary principle that the accused  must be and not merely  may be guilty  before  a  court  can  convict  and  the mental  distance  between ‘may be’  and ‘must be’ is long and divides vague conjectures from sure conclusions.”

      (emphasis in original) (2)  the  facts  so  established  should  be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not

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be explainable on any other hypothesis except that the accused is guilty, (3)  the  circumstances  should  be  of  a conclusive nature and tendency, (4)  they  should  exclude  every  possible hypothesis except the one to be proved, and (5)  there  must  be  a  chain  of  evidence  so complete  as  not  to  leave  any  reasonable ground for the conclusion consistent with the innocence of the accused and must show that in  all  human  probability  the  act  must  have been done by the accused.”

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

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

having regard to the state of evidence on record.  

68. The following extract from paragraph 1504 of  Corpus

Juris  Secundum,  Volume  23,  in  our  comprehension

synopsises  the pronounced judicial opinion with regard to

the quality of circumstantial evidence to decisively prove and

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

“While  in  order  to  sustain  a  conviction  on circumstantial evidence, all of the circumstances proved  must  be  consistent  with  guilt1, circumstantial  evidence  will  not  support  a

1 Fla-Garcia v. State, 899 So. 2d 447 (Fla. Dist. Ct. App. 4th Dist. 2005)

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

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

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conviction if it is merely consistent with guilt  2   or creates  merely  a  suspicion  of  guilt  3  .   If  the circumstantial  facts  proved  can  be  reconciled either  with  the  theory  of  innocence  or  with  the theory of guilt, the theory of innocence must be adopted  and  any  conviction  must  be  reversed  4  , even  though  the  theory  of  guilt  is  the  more probable5.   In  other  words,  in  circumstantial evidence cases, if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt  and  a  theory  of  innocence  of  the  crime charged, then a reasonable jury must necessarily entertain a reasonable doubt6.

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

are  of  the  unhesitant  opinion,  that  it  would  be  wholly

unjustified to uphold the conviction of the appellant for the

offences  charged  on  the  basis  of  the  evidence,  oral  and

documentary  adduced  by  the  prosecution.   We  are  thus

inclined to exonerate him of the charges.  The appeal thus

succeeds.  The conviction and sentence of the appellant is

2 N.Y.-People vs. Squillante, 18 Misc. 2d 561, 185 N.Y.S.2d 357 (Sup 1959). 3 Va.-Littlejohn v. Com., 24 Va. App. 401, 482 S.E.2d 853 (1997)  4 U.S.-U.S. v. Reveles, 190 F.3d 678 (5th Cir. 1999). 5 N.C.-State vs. Potter, 252 N.C. 312, 113 S.E.2d 573 (1960). 6 Miss. –Shields v. State. 702 So. 2d 380 (miss. 1997).

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

in an connection with any other case.

70. Judicial  restraint  albeit  a  self  imposed regulation,  is

the hallmark of functional propriety ensuring uniformity in

approach and certitude in curial determinations.

71. Distraught  though  one  would  be,  by  the  calamitous

incident, judicial adjudication has to be assuredly guided by

the  recognized  legal  dicta  and  cannot  be  swayed   by

emotional  or  sentimental  surges.  Justice  has  to  be

administered  essentially  in  accordance  with  law  and

uninfluenced  by  individual  predilections,  notions,  and

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

the acknowledged and time tested fundamental principles of

criminal jurisprudence, we cannot, but have to conclude that

the charge against the appellant has remained unproved.

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

substantially  disquieting  feature  of  the  case  namely;  the

shoddy,  casual,  laconical  and  insensitive  investigation

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

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several shortcomings and pitfalls in the process have been

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

not  been produced at  the  trial.  The evidence  of   Akhilesh

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

Archana, was withheld.  Ashok Kumar and Ajit Kumar who

supposedly  had  drawn  the  blood  samples  of  parents  of

Archana have not been examined.  Shiv Kumar, Technician,

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

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

was not carried out in a government laboratory and instead

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

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

connection with the DNA test, admittedly  had no expertise in

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

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

Investigating  Officer  to  ascertain  when  and  how   and  by

whom poison was administered  as found in the viscera of

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

identification of the dead body and the prosecution relied on

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inferences,  conjectures  and  surmises  to  connect  the

appellant  with  the  crime.   The  investigation  in  the  case,

therefore,  has  left  gaping  cracks  in  it  incapable  of  being

sealed or mended.   

73. The  investigating  agency  as  the  empowered

mechanism of  the law enforcing institution of  the State  is

entrusted  with  the  solemn  responsibility  of  securing   the

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

the  protector  of  human rights.   The  police  force  with  the

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

constitutional  wheel  of the democratic polity to guarantee

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

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

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

sacrosanct  duty   and  is  undisputedly  required  to  be

impartial,  committed and relentless in their  operations  to

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

the offender subject to the process of law.  The investigating

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

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maintain a delicate balance of  the competing rights  of  the

offenders and the victim as constitutionally ordained but by

no  means  can  be  casual,  incautious,  indiscreet  in  its

approach  and  application.   A  devoted  and  resolved

intervention of the police force is thus an assurance against

increasingly  pernicious  trend  of  escalating  crimes  and

outrages of law in the current actuality.    

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

investigating  agency  has  a  sanctified,  legal  and  social

obligation  to  exhaust  all  its  resources,  experience  and

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

The  manifest  defects  in  the  investigation  in  the  case

demonstrate  an  inexcusable  failure  of  the  authorities

concerned to abide by this paramount imperative.

75.  This  Court,  amongst  others,  in  Amitbhai

Anilchandra Shah vs.  Central  Bureau of Investigation

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

essentiality  of  a  fair,  in-depth  and  fructuous  investigation

had observed that investigating officers are the kingpins in

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the  criminal  justice  system and  reliable  investigation  is  a

leading step towards affirming complete justice to the victims

of the case.  It was ruled  that  administering criminal justice

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

the  accused  under  the  Constitution  is  as  imperative  as

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

task,  though a compelling responsibility,   is vested on the

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

just balance between the fundamental rights of the accused

guaranteed under the Constitution and the expansive power

of  the  police  to  investigate  a  cognizable  offence  has  to  be

struck by the Court was emphatically underlined. We are left

appalled  by  the  incomprehensible  omissions  of  the

investigating agency in the instant case and we would expect

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

competent and effective investigation of criminal offences in

particular  would  take  note  of  this  serious  concern  of  the

Court and unfailingly take necessary remedial steps so much

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so that these observations need not be reiterated in future

entailing punitive consequences.  

  ….....…....................................J.    (V. GOPALA GOWDA)

          …............................................J.    (AMITAVA ROY)

NEW DELHI; DECEMBER 16,  2015.