Criminal Appeal (SJ) No.415 of 1998 **** Against the judgment, dated 24.11.1998, passed by Additional Sessions Judge, II, Begusarai, in S. Tr. No. 57 of 1997 **** 1. Shiv Shankar Singh @ Uma Shankar Singh 2. Gauri Shankar Singh, both sons of late Sukho Singh 3. Sulochna Devi, wife of Late Sukho Singh, all residents of village Khamhar, P.S. Muffasil, district Begusarai .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Dr.Amrendra Kumar no.1 & Manish Rai Sharma, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. The appellants have been convicted under Section 304B of the Penal Code and have been sentenced to undergo rigorous imprisonment for seven years and, further, convicted under Section 201 of the Penal Code and sentenced to undergo rigorous imprisonment for three years, however, both the sentences have been ordered to run concurrently. 3. The prosecution case, as alleged in the fardbeyan by the informant, Madho Singh, P.W. 6, that he has married his daughter 2 Sudha Devi, deceased, with Uma Shanker Singh @ Shiv Shanker Singh about three years back and after the marriage his daughter went to sasural and it is alleged that she has been subjected to cruelty for a demand of Rs.10,000/-, but, when the informant visited his daughter’s sasural he saw the sign of assault on her daughter and then discussed with Uma Shankar Singh on 20.01.1996 when the informant visited the sasural he has been learnt that his daughter has done to death and on enquiry all the accused persons tried to assault him and then he enquired from the neighbours and learnt that his daughter has been done to death on 22.01.1996 and the dead body has been disposed off. 4. On the fardbeyan, the first information report lodged and after investigation the charge sheet submitted and after the submission of the charge sheet the cognizance taken, the case committed to the Court of sessions where the charge framed and trial proceeded. 5. During the trial seven witnesses were examined on behalf of the prosecution. P.Ws, 1, 3, 5 and 6 supported the prosecution case, P.W. 7 is the investigating officer and P.Ws. 2 and 4 is Rambahadur Singh and Ramashray Singh. 6. After the closing of the statement, the statement of the accused persons was recorded under Section 313 of the Criminal Procedure Code. The defence of the accused persons is that there is no occurrence, as alleged and the deceased got ill on 20.01.1996 and was treated for her tetanus in the clinic of Dr. K. Thakur where she remained ill for two days and was referred to Nazarath Hospital, but, 3 she died in the way and it is not a fact that the message regarding the illness and the death was not given. The further case of the defence is that the Prosecution party participated in the last rites and cremation and demanded Rs.25,000/-, which had been given in Tilak and when the same was not given then the case has been loged. 7. The defence has also adduced 4 witnesses and the documentary evidence, Exhibits ‘A’ and ‘B’, a certificate and prescription respectively. After considering the oral and documentary evidence the trial Court convicted the appellants on consideration that witnesses, P.Ws. 1, 3, 5 and 6, have supported the prosecution case that the death of the lady was within seven years and there is evidence of the witnesses regarding the demand and subjecting to cruelty for non- fulfillment of the demand as well as disbelieving the evidence of the doctor that the deceased was suffering from tetanus and holding that the said evidence is after though and after occurrence and prosecution party not informed when the case instituted the accused persons found fleeing away as per the evidence of the investigating officer and convicted the appellants for offence under Section 304B of the Penal Code. 8. The learned counsel for the appellants, however, contends that though the evidence of the witnesses that P.W. 1 learned through P.W. 6 whereas P.W. 6 stated that he learnt from P.W. 1 about the death of the deceased at the Civil Court and, hence, there is no reliable evidence that now they learnt to reach the place of occurrence and, further, the evidence of P.Ws. 1 and 5 regarding the demand and 4 subjecting to cruelty suffers from contradiction. The evidence of the doctor, D.W. 2 has proved that he treated the deceased. The evidence of demand of dowry is only on the husband and not specific against appellants 2 and 3 who are the brother-in-law and mother-in-law of the deceased living separately and, further, the naihar people were informed and they participated in the funeral and after funeral they demanded to return Rs.25,000/- and when it was not returned then the case was lodged. 9. The learned counsel for the State, however, contends that the prosecution has proved three ingredients of Section 304B of the Penal Code as well as the ingredients of Section 201 of the Penal Code that the marriage was solemnized within seven years of the occurrence and there was demand and subjecting to cruelty and the evidence of P.W. 6, the informant, does not find infirmity on this point and, further, the deceased was died, but, no information was given to naiher people and there is no evidence adduced on behalf of the appellants that the appellants were ever participated in the funeral and except the suggestion there is nothing to show that the accused persons were informed or participated and even after the death the police were neither informed nor any post mortem was conducted and, hence, it shall presume that the death is in suspicious circumstance. 10. However, taking into consideration the evidence in the light of submissions of the parties, P.Ws. 1, 3, 5 and 6 have supported the prosecution case that the marriage was solemnized within seven years of the occurrence of the deceased that appellant no. 1, Shiv 5 Shankar Singh @ Uma Shankar Singh, and P.W. 6 in his evidence has categorically stated that the marriage was solemnized about four years back and after the marriage the trial went to sasural, but, returned after 12 days and, thereafter, the gauna after three years in the month of aghan on the date of akasi and the occurrence took place in poosh and after 14 days of gauna appellant no. 1 went to sasural of the deceased and met the deceased and there he stated about the demand of Rs.10,000/- and the deceased disclosed that she is subjecting to cruelty by abusing and assault for non-fulfillment of demand and compelled her to demand Rs.10,000/- from her father and in the cross examination he stated that he had no knowledge about the death prior to the information he received and he did not ask them that how they have got the knowledge of death. However, P.Ws. 1, 3 and 5 also supported the prosecution case about subjecting cruelty for non-fulfillment of demand, but, their evidence suffers from contradiction as attention has been drawn and contradiction recorded by the police, however, so far the evidence of P.W. 6 is concerned, her evidence found to be reliable and trustworthy regarding demand and subjecting cruelty against the husband is against the husband. However, the occurrence took place and the family members of the deceased were not informed and a plea has been taken that the deceased was ill and was treated by the doctor. P.W. 2 is the doctor, who has stated that he treated the deceased from 20.01.1996 when the patient came to his clinic and has proved the certificate and prescription, which is marked as Exhibits ‘A’ and ‘B’ and has stated that on 22.01.1996 he referred the deceased to Nazarath 6 Hospital. However, the prescription issued on 20.01.1996 and 22.01.1996 and the certificate was issued on 28.01.1996 and the three witness examined, P.Ws. 1, 3 and 4 have come to say that the wife of Uma Shankar Singh died out of illness and was treated by Dr. K. Thakur. However, P.Ws. 3 and 4 in their statement have stated that the day when the deceased died, a case was instituted on the day and they have got the knowledge of the case, but, did not come to depose before the investigating officer about this fact as per. However, it is stated that the deceased died in way to Nazarath Hospital. However, even after the death the police was not informed and no post mortem examination was held neither the matter was reported to any authority nor naiher people. However, the defence has been taken that the naiher people have participated in the funeral is only by suggestion and no evidence adduced in this regard. 11. However, taking into consideration the fact and the law the prosecution has established that the marriage was solemnized within seven years of the occurrence and there is evidence of demand and subjecting to cruelty for the non-fulfillment of demand and, further, it has been asserted that the body was disposed off without information to prosecution party or naiher people and the defence has been raised that she died due to illness. However, the prosecution prima facie established the three ingredients of Section 304B of the Penal Code that the death was within seven years, there was demand and subjecting to cruelty and the naiher people were not intimated and the dead body was disposed of without informing the naiher people nor 7 the post mortem examination done nor even the death was confirmed by any doctor nor any authority or police informed and this conduct, itself, indicates the death of the deceased was unnatural and in suspicious circumstance. Hence, in view of Section 113 B of the Evidence Act the onus shifts on the prosecution party to rebut the presumption. However, except the suggestion that the prosecution party was informed there is no evidence to the fact that the intimation was given about the death and, further, the conduct of the deceased that the deceased died in way to Nazarath Hospital, the authorities like police were not informed about the death nor the post mortem was conducted give the grave suspicion about the conduct and it can well infer that the death of the deceased was in suspicious circumstances. Hence, the prosecution has established the three ingredients for offence under Section 304B of the Penal Code and, further, since the dead body was disposed off without intimating the authority and, hence, offence under Section 201 of the Penal Code also made out that the same was done to spin the offender and demolish the evidence to save them from punishment. 12. However, having regard to the circumstance regarding the demand and subjecting cruelty there is clear evidence about the husband, but, the evidence regarding the demand and subjecting cruelty against appellants 2 and 3 are not specific and, hence, under the facts and circumstances a benefit of doubt be given to appellants 2 and 3, Gauri Shankar Singh, and Sulochna Devi,who are brother-in-law and mother-in-law of the deceased and, hence, taking into consideration the 8 entire facts and circumstances I find and hold that the prosecution have been able to prove the charge beyond reasonable doubt against appellant no. 1, Shiv Shankar Singh @ Uma Shankar Singh, the husband, and, hence, the conviction of appellant no. 1 is hereby confirmed. However, with regard to appellants 2 and 3 since there is no specific evidence regarding the demand and subjecting to cruelty and, hence, they are entitled to the benefit of doubt and I find and hold that the prosecution has not been able to prove the charge against appellants 2 and 3 and, hence, the order of conviction and sentence against appellants 2 and 3 is hereby set aside. 13. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court The 18th day of August 2011, N.A.F.R., S.A.