Criminal Appeal (SJ) No.148 of 1999 Against the judgment and order of conviction and sentence dated 22. 05. 1999, passed by Shri Upendra Narayan Yadav, Additional District & Sessions Judge-X, Patna, passed in Sessions Trial No. 1071 of 1996. Chhote Narain Singh, son of Late Indra Prasad Singh, resident of Village- Jalalpur, P.S. Dhanarua, District- Patna. .... .... Appellant. Versus The State of Bihar .... .... Respondent. WIT Criminal Appeal (SJ) No. 167 of 1999 Against the judgment and order of conviction and sentence dated 22. 05. 1999, passed by Shri Upendra Narayan Yadav, Additional District & Sessions Judge-X, Patna, passed in Sessions Trial No. 1071 of 1996. 1. Nand Kishore Prasad Singh @ Nand Kishor Singh. 2. Awadh Kishor Singh. Both sons of Chhote Narain Singh, resident of Village Jalalpur, P.S. Dhanarua, District- Patna. .... .... Appellants. Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 190 of 1999 Against the judgment and order of conviction and sentence dated 22. 05. 1999, passed by Shri Upendra Narayan Yadav, Additional District & Sessions Judge-X, Patna, passed in Sessions Trial No. 1071 of 1996. Shyam Kishore Singh, son of Chhote Narain Singh, resident of Village- Jalalpur, P.S. Dhanarua, District- Patna. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. R. P. Sharma, Advocate. Mr. Shiva Shankar Pd. Singh, Advocate. Mrs. Madhuri Kumar, Advocate. Mr. Vinay Shankar Pd.Singh For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. 2 PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Three appeals have heard together and disposed of by the common judgment as all the three appeals arose out of the same judgment and order dated 22nd May, 1999, passed by Sri Upendra Narayan Yadav, Additional District & Sessions Judge X, Patna, in Sessions Trial No. 1071 of 1996, by which appellants have been convicted for offence under Section 304B I.P.C. and sentenced to undergo rigorous imprisonment for ten years and further convicted under Section 201 I.P.C. and sentenced to undergo rigorous imprisonment for one year each. 3. The prosecution case as alleged by the informant, Sailendra Kumar that his sister Usha Devi was married with Shyam Kishore Singh of Village- Jalalpur of Dhanarua in the year 1983. It has further alleged that after two years, second marriage (Durgaman) was performed , but just after 2-3 months of ‘Duragaman’ the victim was taken by the informant to 3 his house for the reason that Chhote Narain Singh and his family members used to subject her to cruelty for non-fulfillment of demand of Rs. 30,000/- and they asked her to make demand of Rs. 30,000/- from her father. Thereafter, the husband Shyam Kishore Singh came to his house on the eve of marriage of his younger sister of the informant and asked that he will now take his wife and took her in the month of April, 1988. It is further stated that Hemant Kumar, the younger brother of the informant went to his sister’s (victim) Sasural on the eve of Holi festival in 1989 with some articles and there he saw the appellant Shyam Kishore Singh at his dwaraja wearing Uttri and he disclosed that sister of the informant has been died on last Saturday night due to some wound. However, from the enquiry from the villagers, he learnt that his sister was done to death by Chhote Narain Singh and his son by administering poison and disposed of the dead body by taking to Fatwah and claimed that motive of the occurrence is non-fulfillment of demand. It has further been alleged that Usha Devi has no son as such Chhote Narain Singh along with family members intended to marry Shyam 4 Kishore Singh, so the occurrence. 4. On the Fardbeyan, F.I.R. lodged. During investigation a protest petition has been filed, though, police submitted Final Form, but the case proceeded on protest petition. Cognizance was taken and case committed to the Court of Sessions. After commitment, charge was framed under Section 304 B. During trial seven witnesses were examined by the prosecution. The defence has also adduced both oral and documentary evidence and four witnesses were examined on behalf of the defence. 5. The case of the defence is that marriage was solemnised in the year 1978 and the victim died when she was being treated for tetanus and she was sent from Dhanarua to Patna where she died in way to Patna and after death on 19. 03. 1989, information was given to the Naihar people but since Naihar people did not come then step was taken for her cremation and she was cremated. 6. The trial court taking into consideration the evidence that marriage was solemnised in the year 1983 and she was subjected to cruelty for non-fulfillment of demand of dowry and death of the victim was not natural 5 and conduct of the accused was suspicious. Hence convicted and sentenced the appellants for offence under Sections 304 B read with Section 201 of Penal Code. 7. Learned counsel for the appellants however contends that case was investigated and Final Form submitted by the police. Further during trial the prosecution has not been able to prove that victim was subjected to cruelty for non-fulfillment of demand soon before the occurrence. It has further been contended that marriage of the victim has been challenged to have solemnised in the year 1983 and death of the victim was not in suspicious circumstance rather the victim was suffering from Tetanus and was being treated at Dhanarua hospital and for which register and prescription has been proved. 8. Learned counsel for the State however contends that three ingredients required for offence under Section 304 B have been established and presumption under Section 113 B can be drawn hence order of conviction and sentence can well be maintained. 9. On the respective submission the question for consideration whether the three ingredients for 6 offence under Section 304 B I.P. that marriage solemnised within seven years, soon before the occurrence the victim was subjected to cruelty for non- fulfillment of demand and the death of the victim was in suspicious circumstance. 10. With regard to marriage. P.W. 1 and 3, have stated that marriage was solemnised in the year 1983 and second marriage (Duragaman) was performed in the year 1985. P.W. 4 and 5 has also come to support the prosecution case regarding marriage solemnised in the year 1983. However, P.W. 7, though, in his evidence that stated that marriage was solemnised on 15. 03. 1978. 11. However, the trial was considered the evidence of the parties both oral and documentary and hold that marriage solemnised in the year 1983. I do not find any reason to disturb the finding recorded by the lower court. 12. The second point for consideration whether death of the victim was in suspicious circumstance. The marriage is not in. dispute. It is also admitted that second marriage solemnised in 1985. It is alleged that after second marriage the victim went to Sasural and she 7 return after two-three months came to Naihar. She went to Sasural with her husband in 1988 and she died in 1989 without intimation and information the dead body disposed of. 13. The defence of accused that she was suffering from tetanus and she died out of tetanus while under treatment. She was treated at Dhanarua hospital where she was referred to P.M.C.H., but she died in way, intimation was given and funeral was taken after waiting for the family members of the victim, but they did not turn up to participate in funeral. Hence, it is established that cremation was done in absence of her Naihar people. However this fact established that public authority not informed about deatgh. Neither Police informed that death nor the death was ascertained nor post mortem done nor any doctor was certified to confirm the death and the dead body was disposed in heary haste. The defence that Naihar people wwere informed is not acceptable. Hence fact that death of the victim not reported to any public authority, like police or the doctor nor any information given, nor post mortem examination conducted and the evidence that Naihar people informed 8 but they did not turn up does not inspire confidence to he relied and hence in such circumstances, it can well be settled that death of the victim is in suspicious circumstance. 14. However, the third points is concerned that whether the victim was subjected to cruelty for non- fulfillment of demand soon before the occurrence. However, evidence of P.W. 5 the informant that victim was married in the year 1983 and the second marriage of victim performed in 1985. Since then she live in Sasural. There was demand and subjecting cruelty by his father- in-law, Chhote Narain Singh after Duragaman and his sister complained that his father-in-law and husband demanded Rs. 30,000/- as dowry and she was subjected to cruelty. However, this witness has specifically stated that ‘Duragaman’ of Usha Devi was performed in the year 1985. After 2-3 months of Dujragaman she came to her Naihar and remained in Naihar till she went along with her husband in the year 1988 and remain in Sasural till her death in 1989. 15. P.W. 1, 3 and 4 have also in their evidence stated that ‘Duragaman’ was performed in the year 9 1985. Hence evidence of P.W. 5 about demand and subjecting cruelty for non-fulfillment of demand is of the year 1985. When Hemant Kumar, the brother of the informant, P.W.1 went to Sasural of Usha Devi then he found that Shyam Kishore Singh wearing Uttri on his neck and on enquiry, he disclosed that his sister(victim) has died on 18. 03. 1989. However, except P.W. 5 none have stated in their evidence that after ‘Duragaman’ victim informed about subjecting cruelty for non- fulfillment of demand. Hence whatever evidence of subjected cruelty for non-fulfillment of demand is for the period in the year 1985 after Duragaman and till return of the victim in the year 1985 itself. 16. Hence taking into consideration the entire evidence of P.W. 1, 2, 3 and 4 that victim was subjected to cruelty for non-fulfillment of demand in the year 1985. However, it has come in evidence after ‘Duragaman’ she came to Naihar and remain there for 2- 3 months and then she returned back to her Naihar, thereafter she return to her Sasural along with her husband in the year 1988, but there is no evidence that in between 1988 to 1989, there was any evidence regarding 10 subjecting cruelty for non-fulfillment of demand. Hence the only evidence for subjecting cruelty on the person of the victim is of the year 1985. There is no other reliable and unimpeachable evidence regarding subjecting to cruelty for the period from 1986 to 1989. There is no evidence about subjecting cruelty and demand for the period from 1988 to 1989. Hence question for consideration is whether presumption under Section 113 B can be drawn for making out offence under Section 304 B when sole evidence regarding subjecting cruelty for non-fulfillment of demand is for the period in the year 1985 when occurrence took place in 1989. 17. However, having regard to the fact that demand regarding subjected cruelty has only been established in the year 1985 and hence for the occurrence in the year 1989 it cannot be said that prosecution has been able to establish that victim was subjecting to cruelty soon before the death and hence presumption under Section 113 B cannot be taken under the facts and circumstance of the case as one of the ingredient ingredient for offence under Section 304 B I.P.C., that the victim was subjected to cruelty for non-fulfillment of 11 demand just before her death has not been established. 18. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 2nd December, 2011. NAFR/m.p. ( Gopal Prasad, J.)