Criminal Appeal (SJ) No.235 of 1998 With Criminal Appeal (SJ) No. 253 of 1998 **** Against the judgment, dated 30.05.1997, passed by Shri Rana Abhai Singh, Additional Sessions Judge, I, Gaya, in S. Tr. No. 93 of 1996/25 of 1996/13 of 1994 **** 1. Mathura Sao, son of late Ramjee Saw 2. Surendra Sao, son of Mathura Sao 3. Sharda Devi, wife of Matura Sao All are residents of village Punama, P.S. Wazirganj, district Gaya .. Appellants (in Cr. Appeal (S.J.) No. 235/98) Upendra Sao, son of Mathura Sao, resident of village Punama, P.S. Wazirganj, district Gaya .. Appellant (in Cr. Appeal (S.J.) No. 253/98) Versus The State Of Bihar .. Respondent (in both the cases) **** For the appellants .. M/SVishnu Kumar Sharma, Ram Pravesh Kumar and Wasi Ahmad Khan, Adv. For the informant .. M/S Farooque Ahmad Khan, Md. Sufiyan & Thakur Brajesh Singh, Advs. For the respondent/State .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants, the informant and the State. Since, both these appeals have been heard together and 2 are being disposed off by this common judgment as both arise out of S. Tr. No. 93 of 1996/25 of 1996/13 of 1994 (Wazirganj P.S. Case No. 70 of 1993). 2. The prosecution case is that the victim Shanti Devi was married with Upendra Sao on 06.05.1990. The father of Shanti Devi have died prior to the marriage. Nand Kishore Prasad, P.W. 6 is the uncle of Shanti Devi. Late Dwarika Prasad, father of Shanti Devi was the elder brother of Nand Kishore Prasad. After the death of Dwarika Prasad, Nand Kishore Prasad claimed to be the karta. He solemnized the marriage of Shanti Devi. At the time of marriage there was demand of Rs.20,000/-, V.C.R and motorcycle. Nand Kishore Prasad was unable to meet those demands so only the utensils, clothes and other articles worth Rs.15,000-20,000/-. After the marriage, on the next day, Shanti went to sasural and on third day when Nand Kihshore Prasad went for vidai of the victim, Shanti Devi, then vidai was not done and after a month the victim came to naiher and disclosed that the father-in- law and mother-in-law used to vex her under a threat of murder for non-fulfilling the demand. A Panchayati held and in Panchayati, Mathura Sao took the victim. The memorandum of the said said Panchayati has been marked as Exhibit 3. Thereafter, the victim did not come to naiher. Ashok, the brother of the victim, used to go to the sasural of the victim. It is stated that the victim used to disclosed Ashok that until the articles are not given they will not sent the victim in vidai. Ashok went to sasural last time on 16.04.1993. The victim was not sent and when on 22nd April, 1993, Ashok went for vidai then 3 he found the house of Mathura Sao closed. It was learnt that Shanti Devi has been done to death and dead body has been lying in the house. It is alleged that the dead body was disposed off by the accused persons and Ashok informed. 3. However, in this case first information report was lodged on the statement of Mukhlal Paswan, the Chowkidar, to the effect that he had come to Wazirganj market. There he learnt that at the bank of river Jokhari that the body of the daughter-in-law of Mathura Sao is being cremated, after her murder. Then he reached at the bank of Khokhari river and found a dead body burnt and it was learnt that Mathura Sao, Surendra Sao and the wife of Mathura Sao have committed the murder of Shanti Devi on 19.04.1993 and kept the dead body concealed. On the said statement of Mukhlal Paswan, first information report lodged and the investigation proceeded. 4. During the investigation the police found that the place of occurrence is the house of Upendra Sao, situated at Gaya-Nawadah pitch road. In a room the clothes of the deceased was found. The remains of the burnt and burnt bones were seized. Seizure list prepared and sent to Forensic Science Laboratory. Investigating officer recorded the statement of Nand Kihosre Prasad, the uncle of the deceased, but, did not record the statement of the mother and brother of the deceased. Investigating officer did not go to maike of deceased nor made any investigation about the subjecting cruelty. However, after investigation the charge sheet was submitted and during the trial eight witnesses were examined. 4 5. The witnesses, P.W. 1 is a fomal witness, who has formally proved Exhibit 1, P.Ws. 2 and 3 turned hostile and deposed that they did not know about the occurrence, P.W. 4, the informant, who is also Chowkidar, learned in the market about the burning of the dead body after murder then he went there and after enquiry reported the matter to the Police Station. P.W. 5 is Naresh Kumar has stated that he does not know about the relationship between Upendra Sao and his sasural people nor he knows about any Panchayati, hence, has not supported the prosecution case in any material particular, P.W. 6 is Nand Kishore Prasad. He is uncle of the victim. He supported the prosecution case about the marriage of victim with appellant, Upendra Sao on 06.05.1990 with regard to demand has stated about disclosure by the deceased after one month of the marriage. He has stated that Ashok, brother of victim, who used to go to sasural of the victim and he learnt from Ashok that the victim was subjected to cruelty for non- fulfillment of the demand and, ultimately, victim was done to death. P.W. 7 has formally proved Exhibit 4 and P.W. 8 is the investigating officer. 6. The defence of the accused persons is that the deceased not murdered and nor any Panchayati convened and Shanti Devi never reported about any subjecting of cruelty by her in-laws and Shanti Devi died due to hysteria and has also proved the prescription, Exhibits „A‟ and „A/1‟ regarding her treatment. 7. The trial Court, taking into consideration the evidence of P.W. 6 held that it is not in dispute that Shanti Devi was married to 5 Upendra Sao on 06.05.1990, which is also corroborated by invitation card of the marriage and she died on 20.04.1993 is also not in dispute and from these two facts it is clear that Shanti Devi died on 20.04.1993, within seven years of marriage and, further, held that from the evidence of P.W. 6 it appears that the relatives and family members of the deceased were not informed about the death of Shanti Devi and the dead body was cremated in the night on 21.04.1993 and, hence, the death of Shanti Devi was not in normal circumstance. The trial Court, further, held that there was demand at the time of marriage, as per evidence of P.W. 6 and the deceased was taken back after Panchayati shows that Shanti Devi was subjected to cruelty and evidence of the investigating officer that he did not investigate on the point of cruelty is an error committed by the investigating officer for which the prosecution will not suffer and non-examination of Ashok, the brother of the deceased, is not fatal and, hence, convicted the appellants holding that the ingredients of Section 304B of the Penal Code has been made out and sentenced the appellants, as mentioned above. 8. The learned counsel for the appellants, however, contended that it is true that there is evidence that the marriage of the deceased was solemnized on 06.05.1990 and, further, the deceased died on 20.04.1993 and there is evidence that P.W. 6 was not informed and the dead body was disposed off, however, the police during investigation did not recorded the statement of the brother and mother of the victim-deceased nor investigated about demand and subjecting of cruelty and the evidence regarding the demand and subjecting to 6 cruelty soon before the occurrence is missing and only evidence is missing and is that victim-deceased came just after one month of the marriage in the year 1990, but, that evidence is very remote and not reliable. It is, further, contended that the Panchayati was made and the accused persons took the deceased with them in the year 1990 itself. Thereafter, since 1990 uptill the date of the occurrence there is no legal evidence regarding demand of dowry and subjecting cruelty. Hence, ingredient of Section 304B of the Penal Code not established and Section 113B of the Evidence Act provides that the presumption and under Section 113B of the Evidence Act is attracted for conviction under Section 304B of the Penal Code only if it is shown that soon before the death such woman has been subjected by the person to cruelty or harassment. It is submitted that the evidence, according to P.W. 6, that the deceased after one month of the occurrence came to naiher and disclosed about subjecting cruelty is no ground for conviction when no evidence produced since, thereafter, till the date of the occurrence about subjecting cruelty. Hence, the presumption under Section 113B of the Evidence Act is not attracted for conviction and sentence. 9. The learned counsel for the informant/respondent and the learned counsel for the State, however, contended that the expression “soon before her death” has to be given its due meaning as the legislature has not specified any time which would be the period of death and the concept of reasonable time would be applicable, it will be depend upon the facts and circumstance and has relied upon a 7 decisions reported in (2010) 3 S.C.C., (Cri.) 445 (Uday Chakraborty & Ors. Vrs. State of West Bengal) and (2011) 2 S.C.C. (Cri.) 280 (Bachni Devi & Ors. Vrs. State of Haryana). 10. Hence, on the respective submissions, the question for consideration is whether the prosecution has proved the ingredients of Section 304B of the Penal Code to apply the presumption under Section 113B of the Evidence Act. 11. However, the case is for an offence under Section 304B of the Penal Code and the primary requirement to prove the guilt of the accused for offence under Section 304B of the Penal Code that the death has taken place within seven years in suspicious circumstance and soon before her death the deceased was subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry and the presumption arises under Section 304B of the Penal Code when it is shown that soon before the death of the deceased, she was subjected to cruelty or harassed in connection with any demand of dowry by the accused persons . 12. Now, in the facts and circumstances of the case, the marriage is admitted to have been solemnized on 06.05.1990, however, it has come in evidence that the deceased was done to death. However, there is no eye witness to the occurrence of murder and the only circumstance is that the dead body was disposed off without informing the naiher people. P.W. 6 has deposed that he was not informed about the death and the dead body was disposed off. However, P.W. 6 is the uncle of the deceased though he claims to have solemnized the 8 marriage as a karta after the death of the father of the deceased, but, has stated in his evidence that Ashok is the brother of the deceased. However, the mother and brother of the deceased have not come to depose nor the investigating officer, during investigation, approached them to take their statement, hence, it is a serious lacunae in favour of accused. They wre the most competent witnesses to say about intimation about death. P.W. 6 has stated that Ashok used to visit the place of sasural of victim-deceased and the most competent witness has been withheld by prosecution. 13. The third ingredient is required to be established is that soon before her death she was subjected to cruelty or harassment for or in connection with demand of dowry, so this part include two requirements that the victim was subjected to cruelty or harassment for or in connection with demand of dowry soon before subjecting cruelty regard to be soon before the death. 14. Now, on I proceed to consider this aspect in fact and law. However, in this case, except the evidence of P.W. 6 there is no other evidence regarding subjecting cruelty or harassment for or in connection with demand of dowry. However, P.W. 6 states that the marriage solemnized on 06.05.1990 and at the time of marriage there was a demand of dowry of Rs.20,000/- etc. which was not fulfilled. After one month of the marriage the victim came to naiher and intimated about the demand and subjecting to cruelty for non- fulfillment of demand and, thereafter, there was a Panchayati and after Panchayati the matter settled the accused persons took the victim-wife 9 with them, thereafter, the deceased did not return to naiher nor this witness ever went to her sasural. One Ashok, the brother of the deceased, used to visit the sasural and the deceased used to report about subjecting cruelty and Ashok learnt about death and Ashok informed this witness, P.W. 6. However, Ashok, the brother of victim, has not been examined as witness nor his statement recorded by the investigating officer. Hence, regarding this part of the evidence whatever he learnt from Ashok is hit by hear-say and is not admissible in evidence as Ashok has not come to depose and the investigating officer, in this case, in his statement has stated that he did not take the statement of Ashok or his mother. 15. The submission that the evidence of P.W. 6 admissible in evidence under Section 32 of the Evidence Act is not acceptable at all. The reliance has been placed upon decision reported in 2010 (4) P.L.J.R. (S.C.) 51 (Biman Basu Vrs. Kallor Guha Thakurta & Anr.). However, in this reported case, the witnesses deposed that he learnt from the deceased then whatever learnt from the deceased only will be admissible in evidence under Section 32 of the Evidence Act. It is the declaration of deceased which is admissible in evidence. However, under the facts and circumstances of the case at hand, P.W. 6 does not say that he learnt from the deceased, but, P.W. 6 says that he learnt from Ashok and, hence, what he learnt from Ashok in the absence of evidence of Ashok is hit by hearsay and it is not an evidence of declaration by deceased. Had Ashok deposed, in this case, and having stated that he learnt from the deceased, this would have been 10 admissible in evidence under Section 32 of the Evidence Act as Section 32 of the Evidence Act is exception to hearsay, but, here the evidence of P.W. 6 is an evidence of hear-say to a hear-say and, hence, neither permissible nor admissible in evidence. Hence, the part of the evidence of P.W. 6 that he learnt from Ashok about subjecting cruelty or harassment for non-fulfillment of the demand is not at all admissible in evidence and, hence, what remains is the only evidence that the deceased came after one month of the marriage and then reported about appellants having vexing her for non-fulfillment of the demand in 1990 is too remote without any evidence that the same conviction punishable in fact and circumstance. 16. However, P.W. 6, in his cross examination in paragraph 16 has stated that he had stated before the police that the accused persons have demanded Rs.20,000/-, V.C.R. and motorcycle and accused persons continued the demand and there is contradiction from the evidence of P.W. 8, the investigating officer, that this witness has not stated before him that the accused persons demanded dowry at the time of marriage and Rs.20,000/-, V.C.R., T.V. and motorcycle demanded and continue their demand and, hence, this part of the evidence also stand contradicted and, further, this witness, P.W. 6, in paragraph 16 of his evidence has stated that he has not stated before the police that that Shanti Devi came from sasural and disclosed about dowry demand and her vexing by her in-laws, hence, this statement is also contradicted. However, there is no legal evidence that after the accused persons taken the deceased, thereafter, the deceased was 11 subjected to cruelty for non-fulfillment of the demand. The prosecution case is that after the marriage there was a Panchayati, Exhibit 3. 17. The learned counsel for the appellants, however, relied upon the decision reported in A.I.R. 2003 S.C., 2865 (Hira Lal & Ors. Vrs. State (Govt. of NCT) Delhi) in which the grievance was made subsequent to the marriage was resolved by authorities of Crime Against Women‟s Cell and settlement arrived at therein do not relate to the dowry demand and no definite evidence of ill-treatment having been immediately proximity to the date of the death of the deceased and there the settlement arrived at on 30.11.1998 and the date of the death of the deceased was 14.04.1999 and there was no definite evidence about ill-treatment to the deceased at any time having immediate proximity to the date of death of the deceased and, hence, it was held that the basic requirement of cruelty or harassment soon before the death to bring application of Section 304B of the Penal Code is absent. However, a decision relied upon reported in 2000(4) P.L.J.R., 392 (Digeshwar Rana & Ors. Vrs. The State of Bihar) is in proposition that there is no evidence regarding subjecting to cruelty or demand then the presumption under Section 113B of the Evidence Act does not arise. 18. However, to the contrary, the learned counsel for the informant relied upon decision reported in (2010) 3 S.C.C. (Cri. 445 (supra) in which it has been held that there is allegation of demand of dowry and held that there was a chhithi patra which indicates about the 12 demand and marriage solemnized within two years and soon before the death an expression has to be given it‟s due meaning as the legislature has not specified any time and, hence, the concept of reasonable time would be applicable and held that since the marriage is not surviving for a period of two years, entire period would be relevant and it has been contended that when the two years have been interpreted as a reasonable time then in present facts and circumstances three years also may be considered. 19. The learned counsel for the appellants, further, relied upon decision reported in (2011) 2 S.C.C. (Cri.), 280 (supra) is that under the facts and circumstances there was allegation of demand of motorcycle to establish a business and there was, further, evidence that when P.W. 10 sought reason that appellant no. 1 about the unavailability of P.W. 8 because of his poverty to give motorcycle the appellant got angry and warned the deceased would not be allowed to stay and under that facts and circumstances it was held that there is evidence of subjecting cruelty. However, under the facts and circumstances of case reported in (2011) 2 S.C.C. (Cri.), 280 (supra) the deceased was subjected to harassment and ill-treatment of appellants 1 and 2 after P.W. 8 refused to accede their demand for purchase of motorcycle as apparent from the evidence of P.Ws. 8 and 9 and, further, evidence of P.W. 10 that P.W. 8 called the appellants and gave his reason about his inability to give a motorcycle then appellant no. 1 got angry and warned that Kanta would not be allowed to stay and, hence, under the facts and circumstances it was held in (2011) 2 13 S.C.C. (Cri.), 280 (supra) the marriage solemnized within three years, but, the demand was made three months‟ prior to the occurrence of death, however, all these cases the evidence regarding demand was consistent and proximate right from date of marriage whereas under the facts and circumstances the evidence of demand is not reliable. Ashok, the brother of the victim and the mother of the victim not examined and nor there is any evidence of consistent demand and the Panchayati paper proved also does not indicate about any demand or subjecting cruelty. 20. However, taking into consideration, the facts and circumstances of the case, at hand, there is only evidence is evidence of P.W. 6 regarding the demand and subjecting cruelty and his evidence regarding the demand at the time of marriage and subsequently after one month of the marriage the deceased disclosed about subjecting cruelty and vexing her for non-fulfillment. This part of the evidence stands contradicted by the evidence of P.W. 6 and the evidence of the investigating officer and there is no corroboration to this part of the evidence of P.W. 6 and, further, having regard to the fact that P.W. 6 claimed to be the uncle and claimed that he solemnized the marriage, but, the mother and brother of the deceased is still alive, but, did not come to depose nor the investigating officer took the trouble to record their statement though Exhibit 3 has been proved, but, there is interpolation in the date and no signature bears the date and, further, Exhibit 3 does not mention either about demand of dowry or subjecting cruelty and, hence, there is no evidence cogent, reliable and worthy of 14 confidence regarding the demand or subjecting to cruelty and whatever evidence adduced is that there was demand in the year 1990 at the time of marriage and after one month when the deceased came then disclosed and that evidence also having been contradicted and, hence, a demand or subjecting to cruelty under the facts and circumstance of the case can not be said to be a demand soon before occurrence and, hence, the ingredients that the deceased was subjected to cruelty for non- fulfillment of the demand soon before the occurrence is not established by cogent, reliable and unimpeachable evidence to attract the presumption under Section 113B of the Evidence Act to hold the appellants guilty of the occurrence. 21. Hence, the order of conviction and sentence recorded by the lower Court is not sustainable and is hereby set aside and both the appeals are allowed. Since, the appellants are on bail, they are discharged from the liability of their bail bonds. ( Gopal Prasad, J. ) The Patna High Court, The 28th day of September, 2011, N.A.F.R., S.A.