Criminal Appeal (SJ) No.218 of 1997 Against the judgment and order of conviction dated 03. 06. 1997 and order of sentence dated 04. 06. 1997 passed by Shri Bal Krishna Poddar, 5th Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 68 of 1996. Jitendra Singh, son of Prahlad Singh, Resident of Village- Nautan, P.S. Minapur, District- Muzaffarpur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Purushottam Kumar Das, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State 2. The appellant has been convicted for offence under Section 304 B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further convicted for offence under Section 201 Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, both the sentences shall run concurrently. 3. The prosecution case as alleged by Neelam Devi, P.W.10 that at about one and quarter years early she has married her daughter Chanda Kumari, deceased 2 with Jitendra Singh accused at the time of marriage Rs. 40,000/- was fixed as ‘Tilak’ but Rs. 38,000/- was given and Rs. 2,000/- was remained to be paid for which her son-in-law used to vex and threatened that if rest amount is not paid then he will marry with another lady. After marriage, her daughter went to Sasural and after nine days she again came to Naihar and keeping her daughter in her house. The informant went to Katihar at her husband service place. In the meantime, accused Jitendra Singh demanded Rs. 25,000/- from her unmarried daughters and son, Punam Singh, P.W. 7, Babli Singh P.W.9 and Santosh Kumar Singh, P.W. 8 for business otherwise he will not keep their sister and took her wife, Chanda Kumari, deceased to his house at Nautan. Again her daughter came to her Maika and three days prior to the occurrence he brought her daughter and kept her in a hut at Balughat and when her daughter Punam went to meet the victim on 26.10.1994, then she disclosed about subjecting cruelty and in between 26/27. 10. 1994 at about 4 A.M. Jitendra Singh done to death and close her and set on fire of the hut and kill. 4. On the Fardbeyan, F.I.R. was lodged. After 3 investigation, charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. After commitment, charge was framed for offence under Section 304B and 201 I.P.C. 5. However, during trial it has come in evidence that place of occurrence is 100 yards of the house of the informant and twelve witnesses were examined in this case. P.W. 10 is the informant, P.W.11 is the Doctor, P.W. 12 is the I.O., P.W.7, is Punam Kumari, daughter of the informant, P.W. 8 Santosh Kumar Singh, son of the informant, P.W. 9 Babli Singh, daughter of the informant. P.W. 5 and 6 have been tendered and P.W. 1, 2, 3 and 4 have only come to depose that on hulla they went to the place of occurrence and saw the house Jitendra Singh was set on fire and his wife Chanda Devi has been died out of burn injury at about 4.30 A.M. However, P.W. 7, 8, 9 and 10 are the material witnesses who are informant and her three children who have come to support about marriage was solemnised within six years and the victim has to subject to her cruelty for non-fulfillment of demand of dowry. 6. P.W. 11 is the Doctor. However, in his evidence has preserved the viscera for chemical report 4 and opined that cause of death kept reserved till chemical analysis report of viscera available. He has opined that smell of kerosene oil coming inside the stomach and not over body and smell of kerosene oil came out after opening of stomach. 7. On considering both oral and documentary evidence adduced on behalf of the prosecution, the trial court held that marriage was solemnised within seven years and deceased was subjected to cruelty and harassment by her husband-appellant in connection with demand of dowry on the evidence of P.W.9 in para 4 and 10 and evidence of P.W. 10 in para 3, 4 and 11 and convicted the appellant under Section 304 B. 8. Learned counsel for the appellant, however, challenged the order of conviction and sentence on the ground that prosecution has not been proved the case beyond all reasonable doubt and subjecting to cruelty for demand of dowry has not been proved and conviction and sentence are based on contradictory evidence and one can not accept that on mere demand of Rs. 2,000/- the victim can be done to death and hence order of conviction and sentence is not sustainable. 5 9. However, it is pertinent to mention that in case of offence under Section 304 B prosecution is required to prove that marriage of victim was solemnised within seven years prior to the occurrence, the victim was subjecting to cruelty or harassment by her husband or any relative or in connection with any demand of dowry and death is in suspicious circumstance. 10. However, there is allegation that earlier at the time of marriage Rs. 40,000/- was agreed to be paid as ‘Tilak’, but only Rs.38,000/- was given and Rs. 2,000/- remained to be paid and so the appellant demand the rest amount. Further there is allegation that Rs.25,000/- was demanded when the informant was at Katihar, her husband’s service place and demand was made from her children by the accused under threat. 11. However, P.W. 7, 8, 9 and 10 are the material witnesses and father of the victim has not been examined in this case. 12. P.W. 10 is the informant and has stated in her statement that occurrence is quarter past one year and 2-3 days prior to the occurrence, Jitendra Singh has brought the victim to Balughat from Nautan at his house which is at a distance distance of 100 yards from the 6 house of the informant. The house of informant is one side of the Bandh and house of the accused Jitendra Singh is to other side of the Bandh. However, the informant has stated in her evidence that Rs. 40,000/- was fixed as Tilak, out of which Rs. 38,000/- was paid and rest Rs. 2,000/- was remained. However, in her cross-examination she has stated that money fixed for ‘Tilak’ was paid by her husband before the marriage. Further in her cross-examination it has been stated that only Rs. 38,000/- was paid and only Rs. 2,000/- was remained. The husband paid the Tilak amount but husband has not been examined as witness to prove that Rs. 2,000/- remained to be paid. P.W. 10, has further stated in her evidence that Jitendra Singh used to demand Rs. 25,000/- and a motorcycle for business and here attention has drawn with regard to her statement that in her Fardbeyan and statement before the Police she has not stated about demand of Rs. 25,000/- and a motorcycle by Jitendra Singh. 13. I.O. has stated that informant has not stated about demand of Rs. 25,000/- by Jitendra Singh and her evidence stands contradicted. 14. P.W.7 is Punam Kumari and she has stated 7 that on 26.10.1994, when she went to the house of her brother-in-law then her sister disclosed that her husband subjected her cruelty and she is likely for study, but her husband did not allow her to study. She has further stated that three months prior to the occurrence, Jitendra Singh came to her house, when her parents was not there and then demanded Rs. 25,000/-. However, in her cross- examination attention has drawn with regard to this statement and I.O. P.W. 12, in his statement in para 14 has stated that Punam Kumari has not stated before him that Jitendra Singh was threatened that if Rs. 25,000/- was not paid for business then they will have to face consequence. 15. Similarly, P.W. 9, though have stated that Jitendra Singh demanded Rs. 25,000/- and a motorcycle and threatened dire consequence for non-fulfillment of demand. Attention of this witness has also drawn in her statement in para 8 and contradiction of I.O. has been recorded in para 16 by P.W. 12. 16. Further evidence of P.W. 8 on this point of demand of Rs.25,000/- and a motorcycle attention has been drawn in para 5 and contradiction has been recorded the evidence of P.W. 12 at para 15. 8 17. Hence, the evidence that while the informant was out of her house then appellant came and demanded Rs. 25,000/-, though, supported by P.W. 7, 8 and 9 but this part of evidence is suffers from contradiction. 18. Hence, with regard to demand, it is stated that Rs.40,000/- was demanded, out of which Rs. 38,000/- was paid and rest amount Rs.2,000/- remained. However, husband of the informant had paid the said amount, but husband has not come forward to depose that Rs. 2,000/- was remained. Further the allegation of demand of Rs. 25,000/- from P.W. 7, 8 and 9, but evidence of P.W.7, 8 and 9 suffers from contradiction and there is no reliable evidence on this part of prosecution story. 19. However, evidence on behalf of prosecution that appellant used to subject cruelty on the victim, though, P.W. 7 has stated the act of subjecting cruelty that victim (deceased) had interest in studying, but the husband of the deceased did not allow her to study. However, allegation for subjecting cruelty was not act as such to bring it under the definition of cruelty. There is nothing in the evidence of P.W. 7 except stating demand 9 of Rs. 25,000/- which stands contradicted from the evidence of I.O. 20. P.W. 9 has stated that Jitendra Singh used to subject her cruelty as Jitendra Singh has compalin that she did not make food for him. P.W. 10 has also stated that Punam Kumari disclosed that when she went to the house of Chanda Kumari, she became weak and disclosed that her husband used to subject her cruelty. However, this statement is hit by hear say as it is Punam who disclosed what disclosed by Chanda. Moreover, no act of subjecting cruelty has been mentioned. 21. Hence, taking into consideration the entire evidence, though, witnesses have alleged that victim was subjected to cruelty, but no act of cruelty has been mentioned that what act of commission or omission by which the victim was subjected to cruelty and it has only mentioned she was interested in study, but her husband did not allow her to study and the husband complain that she did not make food for him. 22. However, taking into consideration the entire evidence, neither demand of demand of dowry nor subjecting cruelty for non-fulfillment of demand has been established by cogent, reliable and unimpeachable 10 evidence to press under Section 304 B I.P.C. The prosecution is required to prove three ingredients by cogent and reliable evidence when the marriage was solemnised within seven years and death was in suspicious circumstance just before the occurrence, victim was subjected to cruelty for non-fulfillment of demand. Further, the marriage within six years has been established and has not challenged and death since by burn injury can well settled to dispose of. However, the ingredient of subjecting cruelty for non-fulfillment of demand has not been established by cogent, reliable and unimpeachable evidence. However there is contradiction and does not inspire confidence. However, merely alleging that she was subjected to cruelty will not make out a case unless the act of commission and omission is established to infer that the victim was subjected to cruelty. 23. However, the evidence that victim has interested in study, but her husband did not allow to her study. Further that her husband complain that victim does not make food for him itself does not appear to make a out case for subjecting cruelty for non-fulfillment of demand and hence allegation made does not fulfill 11 ingredient that victim was subjected cruelty for non- fulfillment of demand and hence having regard to the ingredient has not been fulfilled presumption under Section 113B cannot shift to ask the appellant to show the probable defence and since the ingredients have not been proved, the offence under Section 304B is not established and there is no evidence that the victim died on sprinkle kerosene oil as there is nothing to appear in evidence to act of commission or omission. 24. Having regard to the facts and circumstance, the prosecution has not been able to prove the charges. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 24th..August,2011. NAFR/m.p. ( Gopal Prasad, J.)