JUDGMENT : DHARNIDHAR JHA 1. The present Government Appeal arises out of judgment of acquittal dated 10th August, 1989 passed by the learned 5th Additional Sessions Judge, Patna in Sessions Trial No. 490 of 1988, by which the two respondents, namely, Ravi Upadhyaya and Shanker @ Sheo Shanker Prasad were acquitted of the charges under Sections 302 and 120 B of the IPC. 2. Some of the undisputed facts may be noticed first. The deceased Ragni Upadhyaya happened to be the daughter of P.W. 6 Krishna Prakash Sinha, and she had fallen in love with respondent Ravi Upadhaya who happened to be the son, one of the old family friends of P.W. 6, Krishna Prakash Sinha, the father of the deceased. It is also not disputed that on expressing her desire to get married to respondent Ravi Upadhaya, her father P.W. 6 had some reservations initially about the marriage being successful, but after a month or so the couple decided to marry. The deceased Ragni Upadhaya was a literate person and appears to have obtained Masters Degree along with Master in Education and was employed as a teacher in the Mathematics Department of J. D. Women’s College Patna. Respondent Ravi Upadhaya was working in a financial non-banking company and he had been assigned his posting at Bombay and was residing there away from his wife. The couple had two daughters, the elder being Swati Upadhaya (P.W. 1), the informant of the present case and the younger at the time of incident, i.e., on 12.7.1987 was a toddler sitting in the lap of her parents. This is not disputed that the marriage had run into rough weather, probably because Ravi was inclined to take his wife and daughters to Bombay which was not acceptable to Ragni probably on account of professional reason. 3. The facts of the case as emanating from the fardbeyan (Ext. 1) as also from the evidence adduced by the prosecution is that Ravi was treating the lady with cruelty. The household was not a nursery for the little girls and it appears that on the date of occurrence P. W. 1, Swati Upadhaya had been asked by Ravi Upadhaya (respondent no. 1) to fetch Chhole-Bhatore from a particular shop and was asked to accompany the other respondent Shankar @ Sheo Shankar Prasad, a servant employed by the parents of P. W. 1. 1) to fetch Chhole-Bhatore from a particular shop and was asked to accompany the other respondent Shankar @ Sheo Shankar Prasad, a servant employed by the parents of P. W. 1. P.W. 1 and respondent No. 2 went to the shop of one Mahendra and respondent no. 1 Ravi Upadhaya had instructed his daughter (P.W. 1) to take money from his friend Rakesh. 4. It appears that the little child could not get the desired food as it was not available and the friend of respondent no. 1 Ravi Upadhaya, namely, Rakesh handed over Rs.5/- to the little girl (P.W. 1) with instruction to have some sweet meats. Accordingly, she came along with respondent no. 2 Shanker @ Sheo Shanker Prasad at around 2.15 p.m. to the tenanted house which was in occupation of her parents. P.W. 1 and respondent no. 2 had ejected from the house for fetching food material at about 8 a.m.. On arrival at the door steps of the residence, P.W. 1 found that there was a lock already put on the grill-gate and she went inside the house of the landlord, P. W. 7, Anil Kumar Singh where she found her younger sister, Shiva, sitting in the lap of the landlady and there she could learn that her mother had been burnt and that her father had rushed her out to the hospital. 5. The story further was that P.W. 1, Swati Upadhaya stated that her grand father (Nana), P.W. 6 came in the afternoon to enquire about her mother and learnt that his daughter had been hospitalized in Nalanda Medical College Hospital and further that P.W. 6 along with his wife P.W. 4, namely, Smt. Urmila Sinha and others came by a car to take P.W. 1 and her younger sister to Nalanda Medical College Hospital in the evening where she found her mother lying in a burnt up condition. Early in the next morning, P.W. 1 was informed by P.W. 4 that Ragni Upadhaya, her mother, had succumbed to the burn injuries in the hospital. 6. The above story could be known to the police after seven days of the occurrence, i.e., on 19th July 1987 when P.W. 1 had given her statement before Chandrama Prasad (P.W. 8), who was the Officer-in-Charge of Bhudha Colony Police Station. 6. The above story could be known to the police after seven days of the occurrence, i.e., on 19th July 1987 when P.W. 1 had given her statement before Chandrama Prasad (P.W. 8), who was the Officer-in-Charge of Bhudha Colony Police Station. In between, as may appear from the evidence of P.W. 9 Puran Prasad Guria, respondent no 1 Ravi Upadhaya on reaching at the Nalanda Medical College Hospital gave his statement on the basis of which Patliputra Unnatural Death Case No. 15 of 1987 was registered and in connection therewith the inquest proceedings were also held by P.W. 9 S. I. Puran Prasad Guria. The post-mortem report was held and during the investigation of the unnatural death case some facts were revealed which necessitated recording the statement of P.W. 1 in the form of fardbeyan (Ext. 6), on the basis of which the FIR of the case was drawn up and investigation was taken up by the police. It appears from the evidence of P.W. 11 Ram Bachan Singh that the investigation was transferred to the Crime Investigation Department of the Bihar Police and the case was investigated into by P. W. 11, who finally sent up the two accused persons for their trial. 7. The defence of the accused persons was that Ragni set herself at fire and she was burnt after she had closed herself inside a room and that the accused persons have falsely been implicated. 8. During the course of trial, the prosecution examined 12 witnesses while the defence produced a solitary witness Chouhan Upendra. Out of the 12 witnesses examined by the prosecution, the star witness happened to be P.W. 1 Swati Upadhaya, daughter of respondent no. 1 and deceased Ragni Upadhaya while supporting facts were stated by P.W. 4 Smt. Urmila Sinha and P.W. 6 Krishna Prakash Sinha, parents of deceased Ragni. The landlord of the section of the house which was in occupation of the deceased and respondent no. 1, namely, Anil Kumar Singh was examined as P.W. 7. 1 and deceased Ragni Upadhaya while supporting facts were stated by P.W. 4 Smt. Urmila Sinha and P.W. 6 Krishna Prakash Sinha, parents of deceased Ragni. The landlord of the section of the house which was in occupation of the deceased and respondent no. 1, namely, Anil Kumar Singh was examined as P.W. 7. P.W. 2 Rafique Ahmad was a formal witness and was a police constable who had made station diary entry in respect of receipt of information regarding a lady having been burnt in Budha Colony while other witnesses like P. W. 8 Chandrama Prasad, P.W. 9 Puran Prasad Guria, P.W. 11 Ram Bachan Singh and P.W. 12 Babu Ram Murmu were all police officers who had created one document or the other or had held one part of the investigation or the other at the stage of investigation either of unnatural death case or the present case which was formally registered after the fardbeyan of P.W. 1. P.W. 10 Sidheshwar Sharma was an employee of Nalanda Medical College and Hospital who tendered in evidence the post mortem examination report on account of non-examination of the doctor. 9. The learned Trial Judge after considering the evidence held the evidence deficient and acquitted the respondents as pointed out at the very outset of the present judgment. 10. Shri D. K. Sinha, the learned Additional Public Prosecutor has taken us through the evidence of witnesses and was initially very tenacious in his submission that it was a case of circumstantial evidence of as strong links in the chain of circumstances as to unfailingly pointing out to the guilt of the accused persons, ruling out all the hypotheses in consonance with their innocence. Sri Sinha was submitting that there was some sort of burden on the respondents to explain by virtue of Section 106 of the Evidence Act as to how the deceased Ragni Upadhyaya happened to have received burn injuries and in absence of any explanation coming from the respondents it could be yet another strong circumstance against them pointing out their culpability. 11. Sri Bidhanesh Misra, learned Amicus curiae and Sri Arvind Kumar Mouar appearing on behalf of the two respondents were defending the judgment of acquittal by pointing out the circumstances from the prosecution evidence itself justifying the acquittal of the accused persons. 12. 11. Sri Bidhanesh Misra, learned Amicus curiae and Sri Arvind Kumar Mouar appearing on behalf of the two respondents were defending the judgment of acquittal by pointing out the circumstances from the prosecution evidence itself justifying the acquittal of the accused persons. 12. After having been taken through the evidence of witnesses, what we find is that the whole prosecution was centered around the evidence of P.W.1 Swati Upadhyaya who happened to be the daughter of respondent no.1 and deceased Ragni Upadhyaya. Her evidence, inter alia, also pointed out the circumstances preceding the final incidence of the lady being burnt when P. W. 1 stated that her father respondent no. 1 was pressurizing her mother to accompany him upto Bombay, but Ragani was not ready and that refusal had strained the relationship of the couple so much so that Ravi used to assault and beat her mother every often. There is no specific date or time stated by the P.W. 1, but she stated that her father used to pick up quarrel with her mother and during that course he used to assault his mother with Lodha, some other instruments and weapons like knife or whatever came in his way. 13. The evidence on assault and preceding circumstances appeared in the evidence of P.W. 1 in paragraph 11 of her deposition sheet. The incident, we have already noted was devoid of any details as regards date or time of such assault. P.W. 1, thereafter, stated that she was sent out with respondent no. 2 to bring Chhole-Bhatore and when she came back, she found the doors of the house locked. She had stated that while she and respondent no. 2 were asked to go out to bring Chhole-Bhatore, her father had asked respondent no. 2 to put a lock and carry the key himself but on return P.W. 1 had found another lock put at the door. Some of the circumstances which in the evidence of P.W. 1 convinced us to eject her as a witness who could not be relied upon and those came in the very examination-in-chief of the witness. P.W. 1 stated in paragraph 6 that before she had left respondent no. 2, the other respondent Shanker @ Sheo Shanker Prasad had been asked by her father to go to market to fetch some kerosene he brought bottle full of kerosene. P.W. 1 stated in paragraph 6 that before she had left respondent no. 2, the other respondent Shanker @ Sheo Shanker Prasad had been asked by her father to go to market to fetch some kerosene he brought bottle full of kerosene. P. W. 1 again stated in paragraph 8 that respondent no. 1 asked respondent no. 2 to bring some wine from the market place and accordingly respondent no. 2 Shanker @ Sheo Shankar Prasad again complied the orders of his master and that P. W. 1 was, thereafter, locked inside a room by her father whereafter the incident had occurred. We are inclined to note that these were some of the facts which were very important, but those were absent from the fardbeyan and probably those were put into the mouth of P.W. 1 either by P.W. 6 or some other person interested in the prosecution so as to creating the circumstances in support of the acts complaint against the respondents. If these two facts, i.e., of bringing the kerosene oil or liquor were very much in the knowledge of P.W. 1 and she had been witnessed to those acts, then in our opinion, those should not have missed being mentioned in the very fardbeyan. Apart from that, what appears admitted from the evidence of the witnesses is that just after the incident the younger one, i.e., Shiva was taken by the mother of present respondent Ravi Upadhyaya while the informant P.W. 1 was retained in their custody by P.W. 6 and P.W. 4. Learned Additional Public Prosecutor was asking us to act upon the evidence of P.W. 1 as her credibility and capability were tested by the learned trial Judge by putting a few initial questions as regards her capacity to understand the implications of the questions and her further capacity to rationally reply to those questions. We are no concerned about that aspect of deposition of P. W. 1. On the date she was deposing in the court she was aged about 10 years and she was a student of Class V in one of the reputed schools of the capital city of Patna. What has put us on alert is that a child of about 10 years could always be prone to tutoring. The incident had occurred about a year back when P.W. 1 was aged about 9 years on the date of incident. What has put us on alert is that a child of about 10 years could always be prone to tutoring. The incident had occurred about a year back when P.W. 1 was aged about 9 years on the date of incident. While the younger daughter of the deceased and respondent no. 1 was put into the custody of her grand mother, i.e., mother of respondent Ravi Upadhyaya, we could not see any reason as to why Swati Upadhaya (P.W. 1) could be retained in their custody by P. W’s 6 and 4. The learned Additional Public Prosecutor was very seriously refuting our suggestion that the purpose of retaining the child Swati Upadhaya in their custody by P.Ws. 4 and 6 could be for tutoring her and making her ready to make statement against her father by submitting that it does not appear from her evidence. But, we find several circumstances appearing from the evidence which too raised probability that no wonder P.W. 1 could have been tutored from the very stage of filing of the report upto to the evidence. The evidence of P. W. 4, Urmila Sinha, the grand mother, i.e., the Nani of P.W. 1 as also that of P.W. 6 Krishna Prakash Sinha indicated that when Babu Ram Murmu (P.W. 12) had come initially for questioning the couple as also Swati Upadhaya she was not ready to come forward and she was not allowed to make any statement to the police. The evidence of Babu Ram Murmu (P.W. 12) points out that he made several attempts by meeting P.W. 6 Krishna Prakash Sinha to record his statement or to obtain a written statement from him but on two occasions his attempts were not allowed to materialize as P.W. 6 refused to give statement either orally or in writing. P. W. 1 Swati Upadhaya was also not allowed to face any police questions and lastly after seven days or so of the incident she was produced before P.W. 8 Chandrama Prasad who recorded the statement of P.W. 1. P.W. 8 Chandrama Prasad, Officer-in-Charge of Budha Colony Police Station was not a willing police officer who was coming to the door steps of P.W. 6 Krishna Prakash Sinha on his own volition and in utter performance of his official duties. P.W. 8 Chandrama Prasad, Officer-in-Charge of Budha Colony Police Station was not a willing police officer who was coming to the door steps of P.W. 6 Krishna Prakash Sinha on his own volition and in utter performance of his official duties. The evidence of Krishna Prakash Sinha (P.W. 6) may point out that he could come to record the statement of P.W. 1, after he had a couple of telephone calls from P.W. 6 Krishna Prakash Sinha. Not only that, the evidence of Krishna Prakash Sinha (P.W. 6) also indicted that he was interested in having a glance of some of the police records, like, the inquest report or other reports. We do not hold any adverse opinion if the father was interested in the prosecution of his daughter’s killing. But, what we are inclined to note is that uneasiness and discomfort which we find from the evidence of P.W. 6 Krishna Prakash Sinha on account of non-registration of a case because he was very much interested in holding Ravi Upadhaya guilty of killing his daughter was so immediate and strong that it could have led him to any action of influencing things in his own way. This appears to be the reason that he retained P.W. 1 in his custody and only when the child had been completely brain washed, she was put up before the police for giving the statement in the form of fardbeyan. 14. The evidence of P. W. 1 Swati Upadhaya in her cross-examination in paragraph 39 relates to the admission by the prosecution that the witness could have been tutored. P. W. 1 was negating all questions put to her by the defence that she had any talk prior to her arrival in the witness box with P.W. 6. But what appears from that particular paragraph 39 to us is that she was produced on all dates of her deposition which ran on many dates from the house of P.W. 4 and P. W. 6 and on most of the occasions it was P.W. 6 Krishna Prakash Sinha who had himself accompanied the witness up to the court room. But what appears from that particular paragraph 39 to us is that she was produced on all dates of her deposition which ran on many dates from the house of P.W. 4 and P. W. 6 and on most of the occasions it was P.W. 6 Krishna Prakash Sinha who had himself accompanied the witness up to the court room. P.W. 1 had not been very forthright in stating as to whether she was pointed out by P.W. 6 as to what was the statement she was required to make in court room, but it appears that during some unguarded moments and concentration lapse, the witnesses stated that on the first day of her evidence she had discussed her evidence with her Nana, i.e., P. W. 6 after she had gone back to his house after her evidence on that day was partly recorded by the Court. Why should P.W. 1 discuss her evidence with P.W. 6 who appears so interested in discussing the evidence of P.W. 1, unless he had some special interest and that particular interest, in our opinion, being to know as to what was the output of the witness in the court room, which in our opinion gives an inkling as if P.W. 1 had been tutored by P.W. 6, who was a senior counsel practicing in this Court as appeared from his own evidence to ensure that it was a fool proof trial which ultimately had ended in the desired result, i.e., the conviction of the two respondents. Once we have some such impression or inference as noted above arising out of the evidence of the prosecution that there could be some chance of tutoring, we are always loath and disinclined to act upon such a dangerous witness like P.W. 1. 15. As regards the evidence of other witnesses, we do not want to dwell on their merits because Krishna Prakash Sinha (P. W. 6) was stating that he came to the house of P.W. 7 Anil Kumar Singh to enquire about the happening and P.W. 7 had stated to him as to how his daughter was assaulted and set ablaze by the respondents. But when it came to the evidence of P.W. 7 Anil Kumar Singh he stated that he had never stated to him which had been stated by P.W. 6 as regards the respondents having committed the offence and refuted all suggestion of making those statements to P.W. 6. Likewise, P.W. 4 Urmila Singh had also not got support from any other source. Her evidence and that of her husband, in our opinion, does not create any circumstance, even remotely, to suggest that it indeed could be the act of Ravi Upadhaya However, what we get from the evidence of P.W. 6 and P.w. 4 both is that they had some information and we have some inference raised upon it that Ragni Upadhaya their daughter was speaking and requesting respondent Ravi Upadhaya who had taken her initially to Kurji Hospital, to shift her to Patna Medical College Hospital because the doctor in Kurji Hospital refused to admit her there. Ragani Upadhaya was asking Ravi to shift her swiftly to Patna Medical College Hospital, but as appears from the evidence of P.W. 6 Krishna Prakash Sinha, one of the relatives of Ravi Upadhaya, namely, Dr. Subhadra Upadhaya was working in the Nalanda Medical College Hospital and it could have been convenient to him to get his wife admitting there whose admission had already been refused by one of the hospitals. As such he contacted Dr. Subhadra Upadhaya in Nalanda Medical College Hospital who arranged the admission of the deceased there. This fact is admitted both by P.W. 4 and P.W. 6. The record of admission, i.e., bed head ticket was brought on record of the case during trial and that has been marked as Ext. 7. The doctor who had initially treated Ragni was also examined as P.W. 3 Dr. Arun Bhatuar who stated that he had admitted and treated Ragni and he had noted down the history of the patient which was stated to him by the patient herself. This answer came in response to a court question as appears from paragraph 4 at page 41 of the paper book. We find that on 30th August 1988 when Dr. Arun Bhatuar who stated that he had admitted and treated Ragni and he had noted down the history of the patient which was stated to him by the patient herself. This answer came in response to a court question as appears from paragraph 4 at page 41 of the paper book. We find that on 30th August 1988 when Dr. Arun Bhatuar was examined-in-chief, the bed head ticket was not before him and as such in spite of being emphatic in stating that he definitely remembered that the injured had made some statements about the nature of the injuries, he would be able to give full particular about it after he had looked into the bed head ticket. This assertion of P.W. 3 Dr. Arun Bhatuar probably led the prosecution to recall him on 3.1.1989 when the bed head ticket or the treatment chart of Ragni was produced and he stated that he had noted in it that it was a case of accidental burn. We have also looked in to the original record (Ext. 7), the bed head ticket and we find that the doctor had noted that the patient was conscious and she was responding to questions and had further noted that the accidental burn was due to kerosene stove. We have referred to the evidence of P.Ws. 4 and 6 who stated that they had information that Ragni was asking Ravi, her husband to move her fast to the Patna Medical College Hospital. Thus, the prosecution also does not deny that Ragni was mentally fit to make statement. She made statement as regards the circumstances under which she happened to have received burn injuries. P.W. 3 Dr. Arun Bhatuar had noted down her statement in Ext. 7. 16. In Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the Supreme Court was considering the scope and ambit of Section 32 (1) of the Evidence Act and was noting that the word ‘death’ appearing in that particular part of the section included cause both for causing the death as also for commission of suicide that death included both homicidal and suicidal death. The very words of Ragni which were reproduced by Dr. Arun Bhatuar (P.W. 3) orally as also in the document form Ext. The very words of Ragni which were reproduced by Dr. Arun Bhatuar (P.W. 3) orally as also in the document form Ext. 7, leaves no manner of doubt that she had not implicated any one as the author of her predicament which ultimately resulted into her death. This is irresistible conclusion which we draw from the evidence generally as also that of Dr. Arun Bhatuar (P.W. 3) particularly. 17. If the above could be the irresistible conclusion on the basis of evidence of the prosecution, then it was not required for the defence or the accused to explain as to how Ragni could happen to receive those injuries over her person. Section 106 of the Evidence Act could never be applied universally to all facts and in all cases. The provision may be attracted only when the prosecution had succeeded in establishing the acts complained of by admissible and acceptable evidence and then only the Courts have to turn to the accused to seek his explanation or about his special knowledge as to how the deceased happened to die. If the prosecution evidence raises some conclusive inference or inference which could be very difficult to repel then in that case, in our opinion, Section 106 of the Evidence Act is never attracted. The probability arising out of the prosecution case, if negatives the charges then the charges stand disproved and the benefit of such disproof of charge has always to accrue to the accused in all such cases. This is the reason, we do not find any substance in the submission of the learned Additional Public Prosecutor that the accused persons owed an explanation to the Court as to how Ragni happened to receive those injuries, because Ragni herself had stated as to how she has received those injuries. 18. Above are some of the reasons which arise out of the prosecution evidence upon which we find the judgment not suffering from any perversity. The learned Trial Judge might have given some different reasons for acquitting the accused, but after considering the evidence discussed above, the reason which came our way out of the inference arising out from the prosecution evidence appears sufficient to sustain the judgment of acquittal. 19. In the result, we do not find any merit in the present Government Appeal and, accordingly, it is dismissed. 19. In the result, we do not find any merit in the present Government Appeal and, accordingly, it is dismissed. The respondents should have been on bail after admission of the Government Appeal. They shall stand discharged from the liability of their bail bond. 20. We have been assisted by Sri Bidhanesh Misra, who was appointed Amicus curiae to assist this Court by order dated 12.3.2014. We direct that Sri Misra be paid a consolidated fee of Rs.5000/- by the Patna High Court Legal Services Committee for assisting the Court.