RAJIV SINGHversusSTATE OF BIHAR & ANOTHER

                      [2015] 12 S.C.R. 1                            1


                         RAJIVSINGH                                 A
                               v.
               STATE OF BIHAR &ANOTHER
             (Criminal Appeal No. 1708 of2015)
                                                                    B
                    DECEMBER 16, 2015
      [V. GOPALA GOWDA AND AMITAVA ROY, JJ.]·
      Penal Code, 1860: ss.3048, 201, 498A - Unnatural
 death of woman - Appellant and his wife 'A' went on                c
 honeymoon trip after 4 months of marriage and spent 4-5
 days there - While travelling on their way back, 'A'
disappeared from the train - After 3 days, a dead body of a
 woman was found near the railway track of the same train
route - Body had been lying prostrate due to which the face         D
 was not recognizable - The cousin of 'A' surveyed the dead
body and opined that it was not of 'A' - As per post mortem
report, the time lag between the death and post mortem
examination was more than 6 days- Pending investigation,
mother of 'A' filed complaint against appellant alleging dowry      E
demand- Testimony of co-passengers was to the effect that
'A' was seen by them to be hale and hearty in the train till
Katihar much beyond Azamgarh where dead body was found
- Trial court held the appellant-husband guilty - High Court
affirmed the same - On appeal, held: There was discrepancy          F
in the wearing apparel of the dead body and that of 'A'. -
Even the parents of 'A' were not convinced that the dead body
found by the side of the railway track was that of their daughter
- This was proved by the fact that the mother had filed a writ      G
of habeas corpus which having regard to ongoing
investigation was dismissed - Viscera of the dead body
contained poisonous substance, however prosecution failed
to establish how and when she was administered poison since
according to the co-passengers she was in a normal state,           H
                               1
2            SUPREME COURT REPORTS                [2015] 12 S.C.R.

A neither restive nor irritating, pungent or sick - DNA test was
       not carried out in a government laboratory and instead was
       done at a private laboratory in violation of the norms - Thus,
       DNA test report and evidence of the Director of the FSL failed
       to inspire confidence in view of shortcomings and
l::s   deficiencies - Prosecution failed to establish beyond
       reasonable doubt the death of 'A' - The evidence as a whole
       bearing on dowry demand and harassment or ill-treatment
       in connection therewith was also not convincing - Courts
       below failed to examine and evaluate the evidence on record
C      in the right perspective both factual and legal and thus have
       grossly erred in returning a finding of guilt against him on
       the above charges.

        Criminal jurisprudence: It is a well entrenched principle
D 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, and otherwise stirring the conscience of any
E 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
F criminal trial, has to prove the charge(s) beyond all
  reasonable doubt.

            Allowing the appeal, the Court

       HELD: 1. If the testimony of co-pas. gers PWs 5,
G 6 and 7 in particular is to be believed, 'A' 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
H evidence of these witnesses, who have not been
           . RAJIV SINGH v. STATE OF BIHAR                      3


decl~red hostile by the prosecution, it is very unlikely       A
that the dead body recovered .near Azamnagar station
could have been, to start with, that of 'A'. Even the
parents of 'A' or any of her family members have not
claimed that the dead body was of 'A'. Significantly as
well, the letter addressed by the cousin of 'A' to the B
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 'A' and
had cited as many as nine reasons in support of his
unqualified conclusion to that effect. He was however C
not examined by the prosecution for reasons best known
to it. [Paras 44, 45] [38-C-F, G]

      2. The finding recorded in the post-mortem report
as to the probable time of death also compounds the D
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 mentioned in ·
no uncertain terms that the time lag between the death
and the post-mortem examination was more than six E
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 'A'. as she was alive and
traveliing in train in the inte..'1ening night of 14.8.2007 and F
15.8.2007 much past the Azamnagar Station. PW8 who
had conducted the post-mortem, has also affirmed in his
testimony, the margin of time between death and the
post-mortem examination of the dead body to that effect. G
Apart from that, there was inconsistency in the
description of the wearing apparels of 'A' and that of the
dead body. Whereas PWs 5,6 and 7 have in unison
deposed that she haJ been wearing a green coloured
salwar suit, the inquest report on the dead body H
4        SUPREME COURT REPORTS                 [2015] 12 S.C.R.

A 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 'A', her family members on being
  shown the same, had in categorical terms denied that
B those were hers. [Paras 46, 47) [38-H; 39-A-E]

         3. 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.
C Having regard to the fact that 'A', in the company of the
    appellant, while travelling throughout the evening and
    as seen by the 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
IJl 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. [Para 48)
    [39-F-H; 40-A)
E
         4. The report of the DNA test was to the effect that
   the sample of the tissue of the viscera of the dead body
   was the generic product of the parents of'A'. This report
   was sought to be proved through PW10 who on the date
F of the receipt of the sample was the Director In-charge,
   FSL, Patna. 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,
G 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
H arrived at. It is also patent from the testimony of PW10
  ·that the samples were not analyzed at the laboratory of
             RAJIV SINGH v. STATE OF BIHAR                      5


· FSL, Patna but had been forwarded to a private laboratory A
  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, who
  had taken two days training in the same laboratory, to B
  undertake the exercise. The prosecution has omitted
  to examine the said technician to establish clearly the
  process that was pursued to conduct the analysis. The
  evidence with regard to collection of blood samples of
  the parents of 'A' is shaky and unconvincing as well. The C
  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
                                                                0
  are not available with the FSL, Patna, as per the prevalent .
  official terms, the same should be got tested in another
  government laboratory. 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. E
  The samples were not accompanied by                    the
  authentication card for DNA test as was necessary. This
  assumes significance as the authenticatioh card has to
  have the photograph of the person(s) offering the
  samples for DNA test. This witness conceded that he F
  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, thus fail to inspire the confidence of this
  Court to accept the same as the basis to hold that the G
  dead body was that of 'A'. 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 'A'.
  [Para 50, 51, 52) (40-D-H; 41-A-E)                            H
6         SUPREME COURT REPORTS               [2015] 12 S.C.R.

A       5. 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 facto also does not meet the requirements of an
  expert opinion to decisively conclude that the dead body
B was that of 'A'. It would thus be wholly unsafe to rely on
  this document to conclude that the dead body was that
  of 'A'. Consequently, on the basis of the investigation
  and the materials produced, the prosecution has failed
  to prove the factum of death of 'A'. [Para 53] [41-H; 42-
C A-8]

        6. PW3, the mother of 'A' had also filed a writ petition
  seeking a writ of habeas corpus in the year 2008 before
  the High Court at Patna which having regard to the
D ongoing investigation 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. [Para
E 54] [42-C-D]

        7. A plain perusal of the testimony of the
  investigating officers involved, indicates that prior to the
  complaint, no allegation of cruelty or harassment for or
F in connection with dowry demand was made against the
  appellant or his family members. The testimonies of
  PW11 and DW4 in particular are in ample support of this
  determination. Even the contents of the complaint do
  not unassailably establish cruelty or harassment for or
G in connection with dowry demand as contemplated by
  Sections 498A and 3048 IPC when juxtaposed with the
  testimony of PW11 and DW4. Both the father and the
  brother of 'A' in their depositions have admitted as well
H that the money invested in the mutual funds had neither
           RAJIV SINGH v. STATE OF BIHAR                       7


been withdrawn by the appellant nor had been diverted          A
for his use or appropriation. Queerly, a diary said to
have been written by 'A' 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                B
complained by the 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
PW1, PW2 and PW3 with regard to demand for dowry
and ill-treatment do not commend for acceptance. All           C
these, in a way fade tnto insignificance as well in the face
of failure of the prosecution to prove the death of 'A' .
[Para 55] [42-F-H; 43-A-D]

      8. Having regard to the contents of the complaint        D
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 'A' in time about the episode and in lodging the            E
complaint at Mokamah G.R.P.S. belatedly has been
severely condemned and viewed to be a part ofthe plot
to cover up his misdeeds in collaboration with his family
members, in absence of any overwhelming evidence in            F
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 'A' missing from her berth
while the train was nearing Bakhtiarpur, in the early          G
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           H
8        SUPREME COURT REPORTS                [2015] 12 S.C.R.

A complaint, 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
  'A' had talked to him over cell phone while he was at
  Mokamah and on the instructions of PW1, the complaint
B was lodged at Mokamah G.R.P.S.[Para 56] [43-E-H; 44-
  A-8]

         9. Even assuming that the suggested case of the
   prosecution is that the appellant had administered
C poison to 'A' 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
D 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, such a proposition is
E wholly incredible and in defiance of logic. In the facts
   of the present case, the presumption engrafted under
   Sections 3048 IPC and 1138 of the Indian Evidence Act
   is not available to the prosecution as the essential
F foundational facts to trigger such presumption have
   remained unproved. The prosecution has failed to
   establish beyond reasonable doubtthe death of 'A'. The
   evidence as a whole bearing on dowry demand and
   harassment or ill-treatment in connection therewith, is
G also not convincing. On a cumulative scrutiny of the
 · evidence on record, in the facts and circumstances of
   the case, the prosecution has failed to prove the charge
 · under Sections 3048/498A/201 IPC against the appellant.
   [Para 57, 58, 59] (44-D-H; 45-A-8]
H        10. It is a well entrenched principle of criminal
            RAJIV SINGH v. STATE OF BIHAR                        9


   jurisprudence that a charge can be said to be proved          A
  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           B
  the place of fogal proof. The well established canon 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. The        C
  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
                                                                 0
  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. The theory
  of "last seen together" as an incriminating factor qua         E
  the appellant is, thus of no avail to the prosecution having
  regard to the state of evidence on record. 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                  F
  prosecution. The conviction and sentence of the
  appellant is set-aside and he is ordered to be set at
  liberty, if not wanted in an connection with any other case.
  [Paras 60, 67- 69) [45-C-D; 49-A-B; 50-D; 51-C-D)
     11. There were several shortcomings and pitfalls G
in the investigation process. The diary of 'A' though
seized, was not produced at the trial. The evidence of
the cousin of 'A' who had opined that the dead body was
not that of 'A' was withheld. The Technician, FSL, Patna H
who, as claimed by the prosecution, had conducted the
 10        SUPREME COURT REPORTS                [2015] 12 S.C.R.


  A 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.
     PW10 who was examined in connection with the DNA
    test, admittedly had no expertise in the line and his
· B 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
  C of the dead body and the prosecution relied on
    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. [Para 72] [52-8-F]
  0
          12. The investigating agency as the empowered
    mechanism of the law enforcing institution of the State
    is entrusted with the solemn responsibility of s.ecuring
    the safety and security of the citizens and in the process,
  E 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
  F 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
  G 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 maintain a delicate balance
    of the competing rights of the offenders and the victim
    as constitutionally ordained but by no means can be
  H casual, incautious, indiscreet in its approach and
           RAJIV SINGH v. STATE OF BIHAR                    11


application. A devoted and resolved intervention of the A
police force is thus an assurance against the increasingly
pernicious trend of escalating crimes and outrages of
law in the current actuality. As a criminal offence is a
crime against the society, the investigating agency has
a sanctified, legal and social obligation to exhaust all its B
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. [Paras 73, 74) [52-G-H; C
53-A-E]
     Sharad Birdhichand Sarda vs. State of
     Maharashtra (1984) 4 SCC 116 : 1985 (1)
     SCR 88; Raj Kumar Singh @ Raju @ Batya vs.             D
     State of Rajasthan (2013) 5 SCC 722:     201 3
     (8) SCR 599; Kali Ram vs. State of H.P (1973) 2
     SCC 808 : 1974 (1) SCR 722; Amitbhai
     Anilchandra S!J_ah vs. Central ·Bureau of
     Investigation and Anr. (2013) 6 SCC 348: 2013          E
     (6 ) SCR 623 - relied on.
     Sultan Singh vs. State ofHaryana (2014)14 SCC
     664; Sher Singh @ Partapa vs. State of Haryana
     (2015) 3 sec 724: 2015 (1) scR 29; Mohd.               F
     lmran Khan vs. State Government (NCT of Delhi)
     (2011) 10 sec 192: 2011 (15) SCR 1030; State
     of Gujarat vs. Anirudhsing and Anr. (1997) 6 SCC
     514: 1997 (2) Suppl. SCR 234; Rajesh Kumar
     and another vs. State Government NCT of Delhi          G
     (20q8) 4 SCC 493:2008 (3) SCR 391; State of
     H.P vs. Mast Ram (2004) 8 SCC 660: 2004 (4)
      Suppl. SCR 269; Rattiram and Ors. vs. State
     of\Madhya Pradesh through Inspector of Police
     (2012) 4 SCC 516: 2012 (3) SCR 496; Rohtas             H
12         SUPREME COURT REPORTS                 [2015] 12 S.C.R.



A         Singh & Ors. vs. State & Another (2011) II AD
          (Delhi) 612; Abeed vs. State of Kamataka (2015)
          1AKR360; State vs. Coetzee (1997) 2 L.R.C.593
          - referred to.

B                         Case Law Reference

          (2014)14 sec 664              referred to.   Para 19
          2015 (1) SCR 29               referred to.   Para 19


c
                    .
          2011 (15) SCR 1030      referred to . Para 20
          1997 (2) Suppl. SCR 234 referred to. Para 20
          2008 (3) SCR 391              referred to.   Para 20
          2004 (4) Suppl. SCR 269       referred to.   Para 20
          2012 (3 ) SCR 496             referred to.   Para 20
D         (2011) II AD (Delhi) 612      referred to.   Para 20
          (2015) 1 AKR 360              referred to.   Para 20
          2013 (8 ) SCR 599·            relied on.     Para 61
          1974(1) SCR 722               relied on.     Para 62

E         (1997) 2 L.R:C.593            referred to.   Para 66
          1985 (1) SCR 88               relied on.     Para 67
          2013 (6) SCR 623              relied on.     Para 67
         CRIMINAL APPELLATE JURISDICTION : Criminal
     Appeal No. 1708 of 2015
F
          From the.Judgment and Order dated 16.05.2014 of the
     High Court of Judicature at Patna in Criminal Appeal (SJ) No.
     1169 of 2011

G         R. Basant, Amit Pawan, S. Prakash Tiwari, Abhishek
     Amritanshu for the Appellant.

          Subramonium Prasad,Abhay Kumar, Tenzing Tsering,
     Utkarsh Shrivastava, Tanya Shree (for Abhinav Mukerji) for the
H    Respondents.
             RAJIV SINGH v. STATE OF BIHAR                          13


      The Judgment of the Court was delivered by                    A
      AMITAVAROY, J. 1. Leave granted.

      2. Afond honeymoon trip of a newly wed young couple
met with a tragic end, with the mysterious disappearance of         B
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 ~onvicted under Sections 304B, 201, 498A of
the Indian Penal Code (for short, hereinafter to be referred to     c
as '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      o
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. RaniArchana Sinha (for~hort, hereinafter to.         E
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       F
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         G
facts have unfolded from the First Information Report lodged
by the appellant with the Mokamah G.RP.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      H
14        SUPREME COURT REPORTS                [2015) 12 S.C.R.



A 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
B 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
C 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
D wife might have been kidnapped. This information was
  registered, as FIR No. 26/2007 dated 15.08.2007 under
                                                     I
  Section 365 IPC between 0400 PM to 0500 PM./

         5. While the matter rested at that, on 18.08.2007 at
E 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
F 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 fmm the train
  about four to five days back. He also described the wearing
G 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.
                                                                     r


       6. An inquest of the dead body followed on 19.08.2007
H at 10.10 PM and a report based thereon was prepared. The
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                 15


findings as recorded inter alia did disclose that nothing was A
clear with regard to the marks of assault of injury, as the dead
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 B
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 C
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 D
near the railway line atAzam 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 E
body was of the opinion that it was not of Archana. According
toAkhilesh Kumar, he along with others had visited the Sadar
Hospital, Katihar to identify the body but failed to do so for the
following reasons.
                                                                   F
      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 G
           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.        H
16         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A         7.    There was simple salwar-suit on the dead body.
          8.    The age seems to be l~ss.
          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
B
                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.
C       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
D preserved for forensic test. The report prepared on the basis
  of 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
E 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
F 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
G 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
H from her parents so as to complete the construction of their
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                    17


house and also to furnish the same. Besides expressing A
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 B
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 C
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 lostArchana. On D
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 E
for the 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 F
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 G
the accused persons stand trial. The complaint was made
under Sections 3048/201 /120B/498A IPC and Sections 3 and
4 of the Dowry Prohibition Act, 1961.

     11 .. After the investigation that followed on the complaint,   H
18         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A 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
B the prosecution and, being satisfied on a consideration of the
  further disclosures in the investigation, that pr'ima facie a case
  against the appellant under Sections 498N3048/1208/201 I
  364 IPC and Sections 3 &4 of the Dowry Prohibition Act, 1961
  had been made out, committed it to the Court of Sessions.
C Charge was subsequent thereto framed against the appellant
  under Sections 3048/201 /498A IPC and to which he pleaded
  "not guilty and claimed to be tried".

          12. At the trial, the prosecution examined twelve
D 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 3048/201 and 498A IPC by the learned trial court
E and was sentenced to undergo R. I. for 10 years for the offence
  under Section 3048 IPC and fortwq 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
F of fine of Rs. 5000/- 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.
G
           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.
H
  RAJIV SINGH v. STATE OF 81HAR [AMITAVA ROY, J.]                   19


      15. Apt it would be to outline the rival contentions at the A
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. 8asant has          8
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     C
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/
3048 IPC had remained unproved. While stoutly disputing             D
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 3048 IPC        E
cannot be said to have been established. According to Mr.
8asant, even otherwise, the prosecution case as sought to be
portrayed is inherently improbable and illogical in defianc,e of
logic and thus ought to have been rejected outright by the cqurts   F
below.

      17. Elaborating the arguments in the above dimensions,
learned senior counsel adverted, in particular to the testimony
9f PWs 5, 6 and 7 to the effect thatArchana had been seen by
them (the co-passengers) to be hale and hearty in the train till G
Katihar/8arauni 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 H
20          SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A    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
B    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
C    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
D    unmistakable terms that the corpse was not that of Archana.
     Mr. Basant 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
E    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,
F    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
G    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
H    testimony of PW10. According to Mr. Basant, even the parents
  RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]                 21


 and other relatives of Archana were not convinced that the dead A
 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.
                                                                  B
        18. Learned senior counsel for the appellantfurther 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 C
 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, D
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 had not been diverted to the appellant for his
gainful use. Mr. Basant has argued that having regard to the E
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, F
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 G
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.                                              H
22          SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A          19. To drive home the above points, learned senior
     counsel pressed into service the following decisions of this
     Court .

     . (i) Sultan Singh vs. State ofHaryana (2014)14 SCC 664
B
      (ii) Sher Singh@ Partapa vs. State of Haryana (2015) 3
      sec 724.
            20. In reply, Mr. Subramonium Prasad, learned senior
      counsel, feading the arguments on behalf of the respondents,
C     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
0
      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 .
E     qua the appellant pertaining thereto had been rightly leveled
      against him and proved at the trial. According to the learned
      senior counsel, even assuming thatArchana 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 ·
F     Bakhtiarpur when for the first time, it transpired that she was
      not aboard and had gone missing. Mr. Prasad has submitted
      thatthe 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
G     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
H     wrong direction. Mr Prasad was critical as well of the manner
                                 -
   RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                  23


in which the prosecution was conducted contending that no           A .
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          B
(Exb. 14) establishing the identity of the dead body with
Archana, could be acted upon independently to the said effect.
Mr. Prasa<:l urged that the mother of Archana being
exasperated with the inaction of the investigating agency in
diligently probing into the incident, did file a complaint on       C
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 parentalsusceptibilities, the
same does not in any way detract from the charges leveled           D
and proved against the appellant. The following decisions were
cited to rest the submissions adverted to hereinabove.

1. Mohd. lmran Khan vs. State Government (NCT of
Delhi) (2011) 10 sec 192
                                                                    E
. 2. State of Gujarat vs. Anirudhsing and another ( 1997) 6
  sec 514
3. Rajesh Kumar and another vs. State Government NCT
of Delhi (2008) 4 SCC 493                            F

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
                                                                    G
6. Rohtas Singh & others vs. State & Another (2011) II
AD (Delhi) 61i(High Court of Delhi)

7. Abeed vs. State of Karnataka (2015) 1 AKR 360 (High
Court of Karnataka)                                                 H
 24          SUPREME COURT REPORTS                  [2015] 12 S.C.R.


. A          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
 18    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
 C     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
 0     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
 If:   the necessary household 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.
 F     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
 G     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
 Hi    talk toArchana from 13.8.2007 as her cell phone was switched
   RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                   25


 off. The witness also mentioned about the queries made by           A
 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 15.8.200 l when, on being called, the appellant replied from
 his cell phone that Archana had gone missing. The witness           B
 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           C
 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     D
 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        E
 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
 receipts. He proved the complaint filed by her wife Malti Devi      F
 (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 G
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 H
26          SUPREME COURT REPORTS                    [2015] 12 S.C.R.


A 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 thatAkhilesh Kumar Singh, who at
  the re_levant point of time was S.H.O., Kishan Ganj and a
B 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 that the mutual fund investments had not been
C transferred to the account of the appellant or got en cashed by
  him.

            24. The evidence of Ravi Shankar Prasad (PW2), the
     brother of Archana is substantially in the same lines as that of
D    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
E    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,
F    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
G    Archana said to have been recovered from her matrimonial
     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
H    Police Station was that of his sister and that it could not be
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]               27


done as the face thereof was distorted. He also adverted to A
the DNA test and the result thereof to the effect that the viscera
of the dead body had matched with blood sample of his par-ents
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 B
him unless the casewas 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.                                     c
      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 matrimonial home. She admitted to have talked to her D
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 thatArchana was missing. She reaffirmed that E
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 F
appellant at Mokamah G.R.P.S., they found the appellant to be
r:iormal 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
sentAkhilesh Kumar to identify the same. The witness stated G
thatAkhilesh 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 H
28        SUPREMECOURTREPORTS                   [2015] 12 S.C.R.


A samples 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
B 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.

C       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
D 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
E resentful, 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
F 14.08.2007. He affirmed that his berth No. was 44 and Coach
  No. was S-1. 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
G 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
H also identified the appellant in court. According to the witness,
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                  29


the wearing apparel of the lady was of light green colour. In      A
cross-examination, this witness affirmed that the couple were
sitting on their berths at Katihar and that both were behaving
normally.

      29. Sumit Dokania (PW6), reiterated the version of his       B
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.
                                                                   c
       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        o
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       E
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.
                                                                   F
      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 G
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' H
30         SUPREME COURT REPORTS                  [2015] 12 S.C.R.



A    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.

B          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
C    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
D    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
E    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
F    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 ofArchana, they confirmed that the same
G    were not hers. The witness stated as well that nobody had come
     to claim the dead body.

        33. Sh yam Bihari Upadhyay (PW10), who on 05.06.2008
  ·was the Director In-charge, Forensic Science Laboratory,
H Bihar, Patna, has proven the DNA report, Exb. 8. He deposed
  RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]               31


that the samples of the viscera of the dead body and the blood A
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 B
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, C
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, Government of India, and that the D
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 E
phosphate and LARAZEPAM, commonly known asACTIVAN.

      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 F
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 G
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 LT.I. of the person giving the sample for DNA H
32        SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A 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,
B 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, forthe DNA test as his
  staff was trained thereat. The witness also admitted that he
C 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
D training in the said laboratory from 16 to 181h 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
E 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.

F       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
G 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
H Rajvanshi Hospital, where their blood samples were collected
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                 33


by Dr. Ashok Kumar and Dr. Ajit Kumar. She stated that A
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.
According to her, on receipt of the report of the DNA test and
on completion of the investigation, she submitted charge-sheet B
under Sections 3048 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)     C
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     D
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.          E
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         F
statement 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      G
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   H
34        SUPREME COURT REPORTS                 [2015112 S.C.R.


A 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
B 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 thatAshok
  Kumar and Ajit Kumar had collected their (parents of Archana)
C 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
D 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.
E
         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
F 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, he
G had got purchased units of mutual fund by the brother ofArchana
  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
H had pressurized her parents for making deposits with regard
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                     35


thereto. In specific terms, he particularly denied the allegation     A
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            B
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          C
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 Archana for greed of money. To
the charge that he had not gone to identify the dead body, he         D
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          E
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 F
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 G
of time, was posted as SHO, Mokamah G.R.PS., testified with
reference to his case diary that the appellant on 15.8.2007
had lodged a written report at 11.40A.M. on the basis of which
Mokamah G.R.P.S. case No. 26 of 2007 under Section 365
IPC was registered . He stated that in course of investigation H
 36        SUPREME COURT REPORTS                (2015] 12 S.C.R.


 A 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
 B 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
 C 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 thatArchana was wearing a
   green coloured dress. He also mentioned that Naveen Kumar
   Mishra (PW?) also reaffirmed that Archana was wearing a
 0
   green coloured dress. He with reference to the case diary
   confirmed the version of 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
  E 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
, F
    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
  G statements of Hari Shankar Prashad, TTE of coach S-1 of
    Capital Express on 14.8.2007 who recognized the couple from
    the photograph arid affirmed that he had seen both of them
    travelling up to Katihar. He proved his case diary as Exh. 24.

           41. Having regard to the overall factual conspectus the
 H
   RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                  37


searching queries warranted for the judicial scrutiny in the        A
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?                 B

      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 C
            appell~nt 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         D
  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    E
  not in dispute. The train schedule of Capital 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            F
  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 Baraunijunction. The dead body
  of female, sought to be identified to be that of Archana by the   G
  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 H
38        SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A junction is about43 K.M.s and the timetaken to cover the same
  is 1 hour 49 minutes. In between Katihar junction and Barauni
  junction, there are 12 stations. Between Baraunijunction and
  Bakhtiarpur junction, there are amongst others, Mokamah
  junction and Barh. The train schedule further evinces that the
B distance between Bakhtiarpur junction and Patna junction is
  45 k.m. which the train is to cover in 1 hour 23 minutes.

        44. If the testimony of PWs 5, 6 and 7 in particular is to
  be believed, Archana was with her husband, the appellant, in
C 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
D 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.
E 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
F his unqualified conclusion to that effect. These having been
  once extracted hereinabove, for the sake of brevity the
  repetition thereof is avoided. Suffice it 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
G 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
H difficulties of the prosecution. Apart from being silent about
  RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]                 39


the cause of death of the female whose dead body was A
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 B
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 of time between the death and the C
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 D
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 Archa11a, her E
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.
                                                                 F
      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 thatArchana, in the company of the appellant, while
travelling throughout the evening and as seen by the G
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 H
40          SUPREME COURT REPORTS                     [2015] 12 S.C.R.


A 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
B 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
c          O.N.A. profile of exhibits marked 'B' and '81 '."
            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,
D    Patna. 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
E    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
F    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
G    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 samples of
     the parents of Archana is shaky and unconvincing as well. The
H    samples, as the PW11 Investigating Officer has admitted, have
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                 41


been forwarded by her directly without routing the same through A
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.
                                                                  B
      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 C
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 D
to inspire the confidence of this Court 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 E
 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 F
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 G
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 H
42         SUPREME COURT REPORTS                  [2015] 12 S.C.R.



A not a self contained one and ipso 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
B 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
C 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 of2007, was dismissed.
  This move on the part of the PW3 though understandably was
D 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.

           55. Be that as it may, to complete the adjudicative
E    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,
F    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
G    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
H    juxtaposed with the testimony of the PW11 and DW4. Both
  RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]                   43


the father and the brother of Archana in their depositions. have   A
admitted as well that the money invested in the mutual funds
had neither 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         B
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 ), lhvestigation 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              C
(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
                                                                   0
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 E
informing the parents of Archana in time 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 F
members, we are constrained to conclude that in absence of
any overwhelming evidence in support of such p~rception, 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 G
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 H
44        SUPREME COURT REPORTS                   [2015] 12 S.C.R.



A that fie eventually did file his complaint, 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
  Mokarnah and on the instructions of Subhash Chandra Prasad
8 (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
C 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
D 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
E 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 our comprehension, such a
  proposition is wholly incredible and in defiance of logic.

F      58. In the facts of the present case, the presumption
  engrafted under Sections 3048 IPC and 1138 of the Indian
  Evidence Act is not available to the prosecution as the essential
  foundational facts to trigger such presumption havf:! remained
  unproved. The prosecution has failed to establish beyond
G 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.

H         59. On a cumulative scrutiny of the evidence on record,
  RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]                    45


we are thus constrained to hold that in the facts and               A
circumstances of the case, the prosecution has failed to prove
the charge under Sections 304_B/498N201 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 erred      B
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 C
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 D
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             E
to be reiterated in Raj Kumar Singh @ Raju @ Batya vs.
State of Rajasthan (2013) 5 sec 722 as succinctly
summarized in paragraph 21 as hereunder:

     "21. Suspicion, however grave it may be, cannot take F
     the place of proof; and there is a large difference between
     something that "may be" proved and "will be 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 G
     be" and "must be" is q.uite 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 H
46         SUPREME COURT REPORTS                  [2015] 12 S.C.R.

A         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
B         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
c         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
D
          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]

E           62. In supplementation, it was held in affirmation of the
     view taken in Kali Ram VS. State of H.P. (1973) 2 sec 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
F    l'!hould be adopted.

        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
G be", a distance to be covered by way of clear, cogent and
  unimpeachable evidence to rule out any possibility of wrongful
  cpnviction 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
H findings as warranted by the same. The above proposition is
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                  47


so well-established that it does not call for multiple citations to A
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 B
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 connection
with the dowry demand for his prosecution and punishment
under Section 3048 IPC.                                         C

        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 o
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 prbof in a criminal case is
on the prosecution to establish the guilt of accused beyond
reasonable doubt, the author unde~lined that the acknowledged E
justification of such presumption is that the outcome of a wrong
conviction is regarded as a significantly worse harm than
wrongful aequittal.

       66. Viewed from the moral and political perspectives, it F
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 liperty, dignity
and privacy of the individual and from this standpoint it is
essential that the state should justify fully its invasion of the G
i[ldividual'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
                                                                  H
48        SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A 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
B
         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
c        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
D        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 s~cial to the balancing exercise. The
         perniciousness of the offence· is one of the givens,
E        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 balancing exercise. If
         this were not so, the ubiquity and ugliness argument could
         be used in relation to murder, rape, car-jacking,
F        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."
G
  The quintessence of the philosophy embedded in the above
  ¢xtract 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
H system.
  RAJIV SINGH v. STATE OF BIHAR [AMITAVA ROY, J.]                  49


       67. The evidence adduced by the prosecution dominantly A
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 B
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 propounded by this
Court in Sharad Birdhichand Sarda vs. State of
Maharashtra (1984) 4 SCC 116 (paragraph 153) which still C
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:
                                                                    D
       "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.               E
     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        F
     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
                                                  1

     19)
        "19 . ... -Certainly, it is a primary principle that the G
        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." ·                 ~J.
                                          (emphasis in original) H
50.              SUPREME COURT REPORTS                            [2015] 12 S.C.R.


A                   (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 be explainable on any other
                    hypothesis except that the accused is guilty,
                    (3) the circumstances should be of a conclusive nature
B
                    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
c                   not to leave any reasonable ground for the conclusion
                    consistent with the innocence of1he 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
0
      facior 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
E     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
F               evidence, all of the circumstances proved must be
                consistent with guilt 1, circumstantial evidence will not
                support a conviction if it is merely consistent with guilt2
                or creates merely a suspicion of guilt3. If the
                circumstantial facts proved can be reconciled either with
G               the theory of innocence or with the theory of guilt. the
      1
           FlacGarcia v. State, 899 So. 2d 447 (Fla. Dist. Ct. App. 4th Dist. 2005)
           Tenn - State vs. Toomes, 191S.W.3d122
           Va-Tooke v. Com. 47 Va. App. 759, 627 S.E.2d 533 (2006)
      <i   N.Y.-People vs. Squillante, 18 Misc. 2d 561, 185 N.Y.S.2d 357 (Sup 1959).
      3
H          Va.-Littlejohn v. Com., 24 Va. App. 401, 482 S.E.2d 853 (1997)
     RAJIV SINGH v. STATE OF BIHAR [AMITAVAROY, J.]                 51


         theory of innocence must be adopted and any conviction A
         must be reversed 4 , even though the theory of guilt is the
         more probable 5 . 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 B
         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           c
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 D
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 E
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 F
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 G
cannot, but have to conclude that the charge against the
appellant has remained unproved. .
4                                        1
    U.S.-U.S. v. Reveles, 190 F.3d 678 (5 " Cir. 1999).
5
    N.C.-State vs. Potter, 252 N.C. 312, 113 S.E.2d 573 (1960).
•Miss. -Shields v. State. 702 So. 2d 380 (miss. 1997).              H
52          SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A           72. Before parting, we cannot but wish to dwell on a
     s111bstantially disquieting feature of the case namely; the shoddy,
     casual, laconical and insensitive investigation conducted by
     the police. In course of our adjudicative audit, several
     slhortcomings and pitfalls in the process have been noticed.
B    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
     d~awn the blood samples of parents of Archana have not been
C    examined. Shiv Kumar, Technician, FSL, Patna who, as
     claimed by the prosecutiqn, had conducted the DNA test, was
     n<!>t produced. The DNA test was not carried out in a
     government laboratory and instead was done at a private
D    laporatory 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
E    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 inferences,
     conjectures and surmises to connect the appellant with the
F    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
G 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 th~
H sustenance of an orderly society. It is usually the first refuge of
  RAJIV SINGH v. STAT~ OF BIHAR [AMITAVAROY, J.]                   53


one in distress and violated in his legal rights to seek redress. A
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 B
a probe into any offence has to 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 C
an assurance against increasingly pernicious trend of
escalating crimes and outrc1ges of law in the current actuality.

       7 4. As a criminal offence is a crime against the society,
the investigating agency has a sanctified, legal and social D
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.                                          E

     75. This Court, amongst others, in Amitbhai
Anilchandra Shati 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 F
that investigating officers are the kingpins in 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 G
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 H
54          SUPREME COURT REPORTS              [2015] 12 S.C.R.


A 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
  µnderlined. We are left appalled by the incomprehensible
  omissions of the investigating agency in the instant case and
B we would expect and require that the authorities in-charge of
  ensuring fair, competent and effective investigation of criminal
  pffences in particular would take note of this serious concern
  of the Court and unfailingly take necessary remedial steps so
  much so that these observations need not be reiterated in future
C entailing punitive consequences.

     Devika Gujral                                  Appeal allowed.