Research › Search › Judgment

Patna High Court · body

2018 DIGILAW 1769 (PAT)

Nawal Kewat v. State of Bihar

2018-12-04

ADITYA KUMAR TRIVEDI

body2018
JUDGMENT : Aditya Kumar Trivedi, J. On repeated call none responded on account thereof, Mr. Baban Roy has been requested to assist the court as an Amicus Curiae. 2. Appellants Nawal Kewat, Ramprit Kewat, Manju Devi, Yogendra Kewat, Ram Ugrah Kewat have been found guilty for an offence punishable under Section 201/34 of the Indian Penal Code and each one has been sentenced to undergo R.I. for three years, appellant Nawal Kewat, Ramprit Kewat and Manju Devi have further been found guilty for an offence punishable under Section 304B/34 of the Indian Penal Code and each one has been sentenced to undergo R.I. for 10 years with a further direction to run the sentences, concurrently, vide judgment of conviction dated 27.01.2009 and order of sentence dated 28.01.2009 by the Ist Additional District & Sessions Judge, Hilsa, Nalanda in Sessions Trial No. 609/03. 3. P.W. 2 Dayanand Kewat gave his fardbeyan on 03.07.2001 at about 6.00 p.m. disclosing therein that his daughter Prabhawati Devi (since deceased) was married with Nawal Kewat of village Bhadaul in the month of June, 1998. After marriage, his daughter has gone to her sasural where stayed for 10 days and then, thereafter, he took her to his place. After spending one and half year at his place, there was Ruksadi and at that very time, he had given furniture, cloth, household articles etc. but, his son-inlaw insisted upon golden chain as well as colour T.V. As, he was not in a position to fulfill his demand so, asked for an excuse. His son-in-law did not accede, on the other hand, continued with his demand and for that, he along with his mother Zirwa Devi and sisters Anita Devi and Manju Devi began to torture her (daughter) in order to compel her to procure the items in lieu of dowry. When, his daughter found helplessness then, in order to rescue herself slipped from her sasural to his place and stayed. Considering that sasural happens to be the place of a married woman, he along with his co-villagers took Prabhawati to her sasural on 30.06.2001 and convened a panchayati participated by Sheo Balak Pahalwan, Mohan Kewat, Tanik Kewat, Mangal Kewat, Etwari Kewat along with other wherein, lastly Nawal Kewat his son-in-law agreed upon to keep his daughter whereupon, they after keeping daughter at her sasural returned back on 01.07.2001. Today, i.e. on 03.07.2001 he received information that his daughter has been murdered by Nawal Kewat, his mother Jirwa Devi, sisters Anita Devi, Manju Devi with the help of his co-villager Ramprit and others on 02.07.2001 and disposed of her dead-body in order to screen themselves. 4. After registration of Hilsa P.S. Case No. 230/01 investigation commenced and concluded by way of submission of charge-sheet, facilitated the trial, meeting with the ultimate result, subject matter of instant Appeal. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. They have also pleaded that victim who was suffering from Epilepsy as well as palpitation died at her Naihar where she was undergoing treatment but, as Anita was continuing strained relationship with her sasuralwala on account thereof, this false case has been filed at the instance of P.W. 1. Though, documentary evidence has not been adduced however, three D.Ws have been examined in order to substantiate the same. 6. Prosecution has produced altogether seven P.Ws in order to substantiate its case who are P.W. 1 Tanik Kewat, P.W. 2 Dayanand Kewat, P.W. 3 Mohan Kewat, P.W. 4 Birendra Thakur, P.W. 5 Dhuri Sao, P.W. 6 Akhilesh Ram, P.W. 7 Ramakant Sah as well as exhibited the signature of Dayanand Kewat on the fardbeyan as exhibit 1 and signature of Sagar Kewat on the fardbeyan as exhibit 1/1. Side by side defence has also examined three D.Ws who are D.W. 1 Sanjay Kumar, D.W. 2 Raj Kumar Chaudhary and D.W. 3 Minti Devi. 7. Learned Amicus Curiae while assailing the judgment of conviction and sentence has submitted that I.O. has not been examined. The non-examination of I.O. not only caused prejudice to the interest of appellant rather also caused dent in the prosecution case in the background of the fact that there happens to be no denial at the end of appellants that deceased was not married with the appellant Nawal Kewat. The date of marriage is also not denied. The date of death is also not denied. The only denial is with regard to allegation whatsoever been attributed at the hand of prosecution that means to say, demand of dowry and, for that deceased was subjected to torture which ultimately cost her life while staying at her sasural. The date of marriage is also not denied. The date of death is also not denied. The only denial is with regard to allegation whatsoever been attributed at the hand of prosecution that means to say, demand of dowry and, for that deceased was subjected to torture which ultimately cost her life while staying at her sasural. Contrary to it, all the witnesses have been suggested that deceased was suffering from epilepsy as well as palpitation and for that she was being kept at her Naihar by the informant where she died during course of treatment and at the instance of P.W. 1 who happens to be fatherin-law of Anita Devi, this false case has been lodged. So, had there been examination of I.O. the aforesaid exposure would have properly been visualized coupled with having an opportunity to bring on record the probability of defence version that deceased died at her Naihar where she was under medical surveillance on account of chronic disease. 8. It has further been submitted that inmates of the house has not been examined nor there happens to be any kind of explanation at the end of the prosecution. Withdrawal of family members has been done in pre-planned manner so that, death of deceased at her Naihar could not found exposed. Apart from this, it has also been submitted that P.W. 1 admitted his relationship with Anita and further, the strained relationship persisting amongst them, pendency of cases in between and so, the probability of the institution of instant case at the instance of P.W. 1 was very much there. Furthermore, it has also been submitted that P.W. 4, P.W. 5, P.W. 6 and P.W. 7 have not supported the case of the prosecution whereupon the case rest upon the shoulder of P.W.1, P.W. 2 and P.W. 3. When their evidence is taken together and is properly scrutinized on each and every aspect, it is apparent that they completely demolished the prosecution case on account of inconsistency prevailing, whereupon, the judgment impugned would not survive. 9. On the other hand, the learned A.P.P. while controverting the submission made on behalf of learned Amicus Curiae has submitted that death is admitted within 07 years of marriage then in that circumstance, the remaining aspects are to be seen which, from the evidences having at the end of the prosecution is found duly substantiated. 9. On the other hand, the learned A.P.P. while controverting the submission made on behalf of learned Amicus Curiae has submitted that death is admitted within 07 years of marriage then in that circumstance, the remaining aspects are to be seen which, from the evidences having at the end of the prosecution is found duly substantiated. It has also been submitted that non-examination of I.O. has caused prejudice to the interest of the prosecution and not of defence in the background of the fact that 04 witnesses have been declared hostile. However, the evidences of remaining witnesses that means to say P.W. 1, P.W. 2 and P.W. 3 the case of the prosecution is found duly substantiated. 10. It has also been submitted that while cross-examining P.W. 1 at the end of the appellants he had categorically stated that after institution of this case wherein P.W. 1 stood as a witness the relationship in between became strained, as the same did not find favour from Anita Devi whereupon, purposely, intentionally, malafidely she instituted a false case. That being so, institution of case at the end of Anita Devi will not cause any kind of infirmity in the testimony of P.W. 1. Further, P.W. 2 and P.W. 3 have properly substantiated the case. That being so, the judgment impugned is fit to be confirmed. 11. From perusal of the lower court record it is evident that I.O. has not been examined. It is further evident that dead body was not recovered. From the material placed at both ends, it is evident that neither the date of marriage, June 1998 has been controverted nor, the death of deceased within 07 years of her marriage. The only circumstance is whether deceased died of natural death as suggested by the appellants on account of epilepsy or palpitation from which she was suffering from since before as alleged at her Naihar or at her Sasural under unnatural death and soon before her death deceased was tortured for demand of dowry which was persisting since before by her husband as well as relative of the husband. In breath, it has also to be seen whether Appellants have succeeded in disclosing that only as envisaged under Section 213 of the Evidence Act. In breath, it has also to be seen whether Appellants have succeeded in disclosing that only as envisaged under Section 213 of the Evidence Act. Thus, in order to search out, the aforesaid legal mandate, the evidence P.W.1, P.W. 2 and P.W. 3 along with D.W.1, D.W. 2 and D.W. 3 are to be seen. As remaining P.Ws i.e. P.W. 4 to P.W. 7 did not support the case of the prosecution. 12. P.W. 1 had stated that Prabhawati Devi, daughter of Dayanand was married 08 years ago. After marriage, she had gone to her sasural where, the sasuralwala advanced demand of golden chain, colour T.V. in lieu of dowry which was declined at their hand and on account thereof, deceased was subjected to torture. Then had disclosed names of the accused persons as Nawal Kewat (son-in-law), sister of Nawal Kewat namely, Anita Devi and one another (name not disclosed), mother of Nawal Kewat, Ramprit Kewat and others, altogether 07 persons who began to torture the deceased on that very pretext. Anyhow, she came therefrom and had disclosed the misfortune. After staying for sometime, they along with victim have gone to the sasural of the victim whom they left there and returned back. Thereafter they came to know that all the aforesaid 07 persons committed murder of the deceased and disposed off the dead-body. Identified the accused. During cross-examination at para 3 he had admitted Anita Devi to be married with his son Ranjit. He had further stated that Anita is residing with his husband. Then has stated that for the last 05 years Anita is not residing with them. For the present, she is residing at the place of her sister at village Malbigha. She has begotten a child. Then had stated that there happens to be cordial relationship in between his son and daughter-in-law. After institution of this case, his daughter-in-law is residing at her Naihar. Again stated at para 4 that his daughter-in-law had instituted a case against them. That case has been registered by his daughter-in-law after institution of this case wherein they have gone jail. At para 5 he had stated that Panchayati was convened at Bhadaul. He was also one of the participants. The Panchayati was concluded by way of written resolution but, he is not in possession thereof. That case has been registered by his daughter-in-law after institution of this case wherein they have gone jail. At para 5 he had stated that Panchayati was convened at Bhadaul. He was also one of the participants. The Panchayati was concluded by way of written resolution but, he is not in possession thereof. At para 6 he had denied the suggestion of the defence that Prabhawati was suffering from severe disease. He also denied suggestion that she was being treated at her Naihar where, during course of treatment, she died. He also denied the suggestion that the allegation of demand of dowry, torture there for are palpably false. He had also denied the suggestion that on account of strained relationship in between his son as well as daughter-in law, resultantly institution of a case at the hands of his daughter-in-law, this case has purposely been filed wherein he has given false and frivolous evidence. 13. P.W. 2 is the father of the deceased who had deposed that his daughter Prabhawati was married with Nawal Kewat in the year 1998. After marriage, his daughter had gone to her sasural where she stayed for only 10 days and then, thereafter, she was taken to her Naihar. After staying for one and half year, her Ruksadi was effected and at that very time, he had gifted the articles as per his status but, his son-in-law insisted upon a golden chain and a colour T.V. which, on account of financial constraint he was unable to fulfill and in the aforesaid background, Nawal Kewat, Jirwa Devi, Anita Devi, Manju Devi, Ramprit Kewat began to assault his daughter as well as subjected her to cruelty. She, being unable to bear the torture, escaped from her sasural to his place. After staying for sometime, they thought it prudent to have presence of married daughter at her sasural and so, in order to settle her, he along with other family members accompanied her to her sasural on 30.06.2001 where a panchayati was convened wherein, lastly Nawal Kewat undertook to keep his daughter. After leaving her, they returned back on 01.07.2001. On 03.07.2001 he came to know that his daughter has been eliminated at her sasural on account of non-fulfillment of demand of dowry, and her dead-body has been disposed of. Then, thereafter, he rushed to the police station, gave his fardbeyan (exhibited). Identified the accused. After leaving her, they returned back on 01.07.2001. On 03.07.2001 he came to know that his daughter has been eliminated at her sasural on account of non-fulfillment of demand of dowry, and her dead-body has been disposed of. Then, thereafter, he rushed to the police station, gave his fardbeyan (exhibited). Identified the accused. During cross-examination he had identified Ramprit to be Nandosi of the deceased, Manju Devi wife of Ramprit are resident of village Malbigha P.S. Chandi. At para 5 he also shown Anita Devi wife of son of P.W. 1 Tanik Kewat. At para 6 he had further stated that Yogendra Kewat and Ram Ugrah Kewat are not the relative of his son-in-law rather are co-villagers. He had not disclosed name of Ram Ugrah Kewat and Yogendra Kewat in the F.I.R. In para 7 he had stated that he is not remembering the exact day of stay of deceased. Then had stated 09 months after Ruksadi she came back to his place. During midst thereof, he visited place. In likewise manner, in para 8 he had stated that after Ruksadi, Nawal Kewat had not come to his place. In para 9 he had stated that his daughter had disclosed regarding demand of golden chain as well as colour T.V. In para 10 he had disclosed the distance in between two village about 50 kms. In para 11 he had stated that after marriage, his daughter had gone to her sasural along with her husband. 10 days after marriage, his brother had gone to bring her back and then, about one and half year Ruksadi was effected and for that, his son-in-law had come to his place. Thereafter, his daughter had gone to her sasural. The date on which she escaped from her sasural, during intervening period his daughter had not come to his place alone. Only once she had come alone. But, he is not remembering the exact date. She has come empty hand. Then had denied the suggestion that he has falsely stated the same. In para 12 he had stated that from Etwari Kewat (not examined) he came to know that his daughter has been murdered. After having been informed by Etwari Kewat, he along with 05-06 persons have gone to Hilsa Police Station. Etwari Kewat, Sagar, Mohan, Janardan, Ramkishore, Tanik have gone along with him. In para 12 he had stated that from Etwari Kewat (not examined) he came to know that his daughter has been murdered. After having been informed by Etwari Kewat, he along with 05-06 persons have gone to Hilsa Police Station. Etwari Kewat, Sagar, Mohan, Janardan, Ramkishore, Tanik have gone along with him. They arrived at the police station at evening hour, then gone his fard-beyan at the police station. They came to know that after receiving the rumour the police had gone to the village, but they have not found anybody at the place. He had further stated that they stayed at Hilsa and on the following day, his brother met with the police. He had further stated at para 15 that his daughter was issueless. At para 16, 17, 18, 19, 20, 21 there happens to be suggestion with regard to suffering of the deceased from severe ailment, treatment at her Naihar, death at her Naihar and in the background of strained relationship with Anita Devi with her sasuralwala, this case has been instituted at the end of P.W. 1 father-in-law of Anita Devi in order to teach a lesson as well as to extract the money, which he denied. 14. P.W. 3 is the Mohan Kewat who had stated that Prabhawati Devi (since deceased) was daughter of Dayanand who was married with Nawal Kewat. After marriage, Prabhawati Devi had gone to her sasural where she confronted with the demand of a golden chain and a colour T.V. and for that, there was dispute whereupon, they intervened and got the matter sorted out. When they have gone to Bhadaur with the girl from her Naihar. They, after staying night halt, returned back. Then thereafter they came to know that mother-in-law, sister-in-law, husband along with villagers killed Prabhawati Devi and then, have disposed of the dead-body. Identified the accused. He had further stated that Jogindra and Ram Ugrah are innocent. During cross-examination at para 5 the theme of strained relationship in between Anita Devi and Tanik Kewat has been divulged. In para 6 he had stated that there was panchayati at the end of Dayanand Kewat at village Bhadaur against Nawal Kewat wherein he also participated. Paper was prepared whereupon Nawal Kewat, Dayanand Kewat, he himself along with others have put their signatures which was prepared in two copies. One was given to Nawal Kewat, second to Dayanand Kewat. In para 6 he had stated that there was panchayati at the end of Dayanand Kewat at village Bhadaur against Nawal Kewat wherein he also participated. Paper was prepared whereupon Nawal Kewat, Dayanand Kewat, he himself along with others have put their signatures which was prepared in two copies. One was given to Nawal Kewat, second to Dayanand Kewat. In para 7, he had failed to disclose the exact date of marriage of Prabhawati Devi as well as Ruksadi. He had further stated that deceased had stayed at her sasural for one month only after Ruksadi. At para 8, there happens to be cross-examination with regard to mode of transportation to his village as well as to the sasural of the deceased. Then had denied the suggestion that deceased died of ailment, which she was suffering from before at her Naihar where she was being treated and then, at the instance of P.W. 1 got this case filed with ulterior motive. 15. At the present juncture, evidences of PW-4, PW-5, PW-6, PW-7, all having been declared hostile, has also to be taken note of, who during examination-in-chief have disowned to support case of the prosecution, but on cross-examination admitted death of deceased, also status of deceased and further, with regard to place of death, they are inconsistent. 16. 304(B) connotes the dowry death. To constitute a dowry death, necessary ingredients are:- (a.) there should be death of deceased by burns or bodily injured or otherwise than normal circumstance. (b.) it should be within 07 years of marriage. (c.) soon before her death she has been subjected to cruelty by her husband or relative of the husband. (d.) Such cruelty or harassment must be in connection with the demand of dowry. 17. If aforesaid ingredients are found duly fulfilled at the end of the prosecution, then in that circumstance there should be presumption of dowry death though rebut table as provided under Section 113(B) of the Evidence Act. 18. Proceeding further, the evidence of three DWs have to be seen in order to search out whether appellants have properly discharged the onus. D.W. 1 had stated that he was knowing Prabhawati Devi who is dead. She was married with Nawal Kewat. Marriage was solemnized about 10 years ago. 18. Proceeding further, the evidence of three DWs have to be seen in order to search out whether appellants have properly discharged the onus. D.W. 1 had stated that he was knowing Prabhawati Devi who is dead. She was married with Nawal Kewat. Marriage was solemnized about 10 years ago. She came to her sasural after marriage and stayed for 01 week and then thereafter, she returned back, Ruksadi was effected after 04-05 years. After Ruksadi she had stayed at her sasural. There was cordial relationship amongst the spouses. In para 2 of his examination-in-chief he had stated that 15 days after the Ruksadi, deceased had come to her sasural. Again she returned back to her sasural one month thereafter. After sometime, she gone to her Naihar where she died due to epilepsy. He had seen her while she was suffering with epilepsy. Her treatment was cared at by her Naiharwala but in secrecy. She used to take medicines. He had further stated that her sasuralwala was not informed regarding her death. They came to know about a week thereafter that she is no more. Her husband had gone to her Naihar. During crossexamination at para 3 he had stated that he had come to depose along with accused persons. Whatever they have disclosed, he has stated before the court. Then had admitted to be cousin brother (Fufera Bhai) of the accused. He had not gone to Naihar of the deceased save and except, as one of the members of Barati at the time of marriage. He had further stated that he had not seen the deceased suffering from epilepsy. He came to know about the same from others. However, who has stated, is not remembering. He denied the suggestion that deceased met with dowry death at her sasural. 19. D.W. 2 during his examination-in-chief had stated that Prabhawati Devi was married with Nawal Kewat about 10 years ago. She died after three years of marriage. There was no dispute of dowry. Prabhawati Devi who was suffering from epilepsy died at her Naihar. He had seen Prabhawati Devi during course of suffering from epilepsy. There was cordial relationship amongst the spouses. She was being treated. He had further stated that information with regard to her death was given to sasuralwala whereupon, they have come. Deceased was issueless. There was no strained relationship in between. He had seen Prabhawati Devi during course of suffering from epilepsy. There was cordial relationship amongst the spouses. She was being treated. He had further stated that information with regard to her death was given to sasuralwala whereupon, they have come. Deceased was issueless. There was no strained relationship in between. During cross-examination he had stated that with regard to death of Prabhawati Devi her Naiharwala has registered this case against her husband and others for dowry death. He had not gone to Naihar of Prabhawati Devi. He had further admitted that Nawal Kewat happens to be his cousin brother (Fufera Bhai). He is not knowing where deceased was being treated. He perceived the same from rumour floating in the village that she was suffering from epilepsy. Then had denied suggestion that deceased met with dowry death at her sasural. 20. D.W. 3 has stated that Prabhawati Devi was married with Nawal Kewat about 10 years ago. She died 03 years after the marriage she was suffereing from epilepsy and she died of epilepsy at her Naihar. She had seen her while suffering from epilepsy. She was being treated but where, she is unable to disclose. Prabhawati Devi was properly kept at her sasural. There was no demand of dowry. Sasuralwala was informed regarding death of Prabhawati Devi. They have participated during course of Shradh. After marriage, parents of deceased used to visit her sasural. During cross-examination she had shown ignorance with regard to Dayanand Kewat. She had shown ignorance with regard to registration of this case at the behest of Naiharwala of the deceased. She had also shown ignorance in which case she has come to depose. She has further stated that she has come to depose whatever been instructed by the accused Chamari Kewat. Then had denied suggestion that deceased met with dowry death at her sasural. 21. From the evidence as referred hereinabove, it is crystal clear that none is eye-witness. As stated above marriage within 07 years of marriage is not in controversy that too, unnatural one. When the evidence of D.Ws have been gone through, it is evident that the evidence of D.W. 2 and D.W. 3 speaks a lot more particularly, when they have disclosed that information with regard to death of deceased was given to sasuralwala who participated during course of Shradh. When the evidence of D.Ws have been gone through, it is evident that the evidence of D.W. 2 and D.W. 3 speaks a lot more particularly, when they have disclosed that information with regard to death of deceased was given to sasuralwala who participated during course of Shradh. If the aforesaid event is taken together, it is evident that one day after the occurrence case was already instituted. It is further evident that P.W. 2, father was not at all cross-examined on that very score. That means to say whatever been produced at the end of D.W. apart from being suspicious one, suggests the death of deceased at her sasural so, the evidence of D.W. 2 and D.W. 3 spoils the evidence of D.W. 1, and further spotted the defence version 22. As indicated here-in-above, P.W. 4, P.W. 5, P.W. 6 and P.W. 7 have gone volte face to the prosecution. I.O. has not been examined. P.W. 1 has got some sort of grievances in the background of strained relationship in between Anita Devi, his sister-in-law and, it has also been admitted that he had gone to jail in a case instituted at the end of Anita Devi, but there is specific disclosure at his end that aforesaid cases were instituted after this case and to that extent, there happens to be no challenge at the end of the appellant. Apart from this, it is evident from the evidence of P.W. 2 the father that he was not at all cross-examined on the score of demand of dowry, torture upon the deceased whereupon she escaped from her sasural, staying at her Naihar and then, carrying her to her sasural on 30.06.2001, returning therefrom on 01.07.2001 leaving the deceased and commission of occurrence on 02.07.2001. 23. Non cross-examination of a witness on a particular point will tantamount to an admission and that is the spirit of law as decided by the Hon'ble Apex Court in Gian Chand & Others Vs. State of Haryana reported in, (2013) 4 PLJR 7 (S.C.) where it has been held:- "11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L. Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L. Rs. & Ors., AIR 2013 SC 1204 observing as under; "31. State of Haryana reported in, (2013) 4 PLJR 7 (S.C.) where it has been held:- "11. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L. Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L. Rs. & Ors., AIR 2013 SC 1204 observing as under; "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) (See also: Ravinder Kumar Sharma vs. State of Assam & Ors., AIR 1999 SC 3571 ; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425 ; and Rohtash Kumar vs. State of Haryana, (2013) 8 JT 181 (SC))." 24. The same is essential to ensure fair play and fairness in dealing with witnesses." (Emphasis supplied) (See also: Ravinder Kumar Sharma vs. State of Assam & Ors., AIR 1999 SC 3571 ; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425 ; and Rohtash Kumar vs. State of Haryana, (2013) 8 JT 181 (SC))." 24. Whether non-examination of witness will scrap the entire evidence available on the record, or the court has to see whether from the materials available on the record, the case is found proved, has been properly considered by the Apex Court in Harpal Singh v. State of Haryana and Ors. Reported in, AIR 1997 SC 2914 para 23 and 24. "23. In Darya Singh v. State of Punjab, AIR 1954 SC 328, a Bench of three Judges (Gajendragadkar, Wanchoo and Dasgupta, JJ.) has observed that in murder cases it is primarily for the prosecutor to decide which witness he should examine in order to unfold the prosecution story. "If a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient from the witness box." The same view has been followed in a number of cases. [vide Masalti v. State of U.P., AIR 1965 SC 202 , by a Bench of four Judges (Gajendragadkar, C.J., Wanchoo, Dasgupta and Raghubar Dayal, JJ.); Gurmej Singh v. State of Punjab, AIR 1992 SC 214 , by a bench of three Judges; Rai Saheb v. State of Haryana, (1994) SCC(Cri) 239; Rajbir v. State of Haryana, (1996) SCC(Cri) 178; Girish Yadav v. State of M.P., (1996) SCC(Cri) 552; Ram Sanjiwan Singh v. State of Bihar, (1996) SCC(Cri) 701: (1996 AIR SCW 2300); Malkan Singh v. State of U.P., (1995) SCC(Cri) 893: (1994 AIR SCW 880)]. 24 No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. We do not see any justification, in this case, in drawing such an adverse inference due to non-examination of Randeep Rana. [vide State of Karnataka v. Moin Patel, (1996) SCC(Cri) 632: (1996 AIR SCW 1411)]. 25. Number of witnesses could not be considered to a condition precedent for substantiating a case as has been laid down under Section 134 of the Evidence Act. So, even the evidence of single P.W. 1 inspiring confidence being creditworthy would be suffice to obscene the case proved. As stated above, P.W. 2, father has not been cross-examined on the relevant point as disclosed hereinabove. That being so, his evidence remained intact fulfilling ingredients of section 304(B) of the Indian Penal Code. Whatever evidences have been adduced in rebuttal as discussed hereinabove is not at all found sufficient to discharge the onus. 26. Now coming to proper identity of the accused to be responsible for committing the occurrence, it is evident that Jogindra and Ram Ugrah are the co-villagers and they have been simply named. Furthermore, they have not been identified, to be connected with the husband and so, the presumptions could not be in their favour. Consequent thereupon, they cannot be liable to be punished. In likewise manner, Ramprit Kewat and Manju Devi are the brother-in-law as well as sister of the appellant no. 1 Nawal Kewat, husband. Informant came about the involvement from Etwari Kewat who has not come forward to support and so, presence of Ramprit Kewat and Manju Devi at the place of occurrence could not be considered to be properly substantiated nor excepted to be more particularly, when the informant did not disclose their presence on 30.06.2001 as well as 01.07.2001. That being so, they are also liable to be acquitted. That being so, they are also liable to be acquitted. The instant appeal relating to appellants Ramprit Kewat, Manju Kewat, Yogendra and Ram Ugrah are allowed setting aside the conviction and sentence recorded by the learned lower court. They are on bail as well as discharged from liability of the bail bond.. 27. So far, the appellant Nawal Kewat is concerned, the appeal is dismissed whereupon, his bail bond is hereby cancelled directing him to surrender before the lower court to within two week to serve out the remaining part of the sentence failing which lower court will be at liberty to proceed against him in accordance with law. 28. First and last pages of the judgment be handed over to the learned Amicus Curiae.