CRIMINAL APPEAL No.345 (DB) OF 2005 ------ Against the judgment of conviction dated 26.04.2005 and order of sentence dated 28.04.2005 passed by Shri Arun Kumar Singh, Additional Sessions Judge, Fast Track Court No.V, Arrah in Sessions Trial No. 452 of 1998. ----- 1. RAMESHWAR RAM SON OF LATE GOPAL RAM 2. SOMARO DEVI WIFE OF SHRI RAMESHWAR RAM 3. RAVI SHANKAR RAVI SON OF SHRI RAMESHWAR RAM ALL RESIDENTS OF VILLAGE BAHADURPUR, P.S.AGIAON GARAHANI,DISTRICT BHOJPUR ---- APPELLANTS VERSUS THE STATE OF BIHAR ---- RESPONDENT ----- For the appellants : M/s Jitendra Singh, Sr.Advocate, Bindayachal Singh, Kamal Kishore Singh and Tej Pratap Singh For the respondent : Mr. Ashwini Kumar Sinha, Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ----- S.K.Sharma,J. Appellant no.3, Ravi Shankar Ravi and his parents appellant nos. 1 and 2, Rameshwar Ram and Somaro Devi respectively, have preferred this appeal against the judgment of conviction dated 26.04.2005 and order of sentence dated 28.04.2005 passed by Additional Sessions Judge, Fast Track Court No.V, Arrah in Sessions Trial No. 452 of 1998 whereby all the three appellants have been convicted under Sections 498A, 304B and 120B of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act and they have been sentenced to undergo rigorous imprisonment for three years under Section 498A 2 of the Indian Penal Code, life imprisonment under Section 304B of the Indian Penal Code, life imprisonment under Section 120B of the Indian Penal Code and rigorous imprisonment for six months under Section 4 of the Dowry Prohibition Act. All the sentences have been ordered to run concurrently. 2. The brief facts leading to the appeal has resulted from the fardbeyan dated 5.12.1997 given at 7.00 P.M. before Agiaon Police Station at Garahani Station Chawk by Om Prakash Ram son of Sri Basan Ram of village Thora, P.S. Buxar(M),District Buxar in which he after producing three letters written by his deceased sister Kiran Devi alleged that Kiran Devi was married with Ravi Shankar Ravi, appellant no.3, about one and half years prior to the occurrence according to Hindu rites. After marriage, her husband Ravi Shankar Ravi and other named accused Rameshwar Ram and Somaro Devi started raising demand of a Rajdoot motorcycle and when their demand was not fulfilled, they started torturing Kiran Devi in various ways. In connection with that torture the accused persons were pressing Kiran Devi to 3 pass on the information for demand of a Rajdoot motorcycle to her parents and her other family members. She was apprehending danger to her life at the hands of the accused persons on account of non-delivery of a Rajdoot motorcycle by her parents. Suddenly, on 26.11.1997, the accused persons reached at the door of the informant with corpse of Kiran Devi and narrated that in the night of 25/26.11.1997 in course of commission of dacoity in their house, Kiran Devi was killed by the dacoits which was reported to police. After performing the last rites of Kiran Devi, the informant, his uncle Ram Prasad and others went to village Bahadurpur and got information from the villagers that there was no dacoity in the house of the accused persons, rather Kiran Devi was killed by the accused persons. This fardbeyan resulted in Agiaon(G) P.S.Case No. 60 of 1997 dated 5.12.1997 under Sections 498A,120B and 304B of the Indian Penal Code and 27 Arms Act. The case was investigated into and after completion of investigation, chargesheet no. 16/98 dated 30.7.1998 under Sections 498A,120B and 304B of the Indian Penal Code, 27 of the Arms Act and 3/4 of the Dowry 4 Prohibition Act was submitted against the accused persons. Cognizance was taken and the case was committed to the court of Sessions where charges under Sections 304B,498A and 120B of the Indian Penal Code and 4 of the Dowry Prohibition Act were framed and explained to the accused persons. They pleaded innocence and preferred to face the trial. 3. The defence of the accused persons was that Kiran Devi was killed in course of dacoity by the dacoits in the mid-night of 25/26.11.1997 and last ceremony was attended by the family members of the informant. A case was filed on behalf of the appellants regarding murder of Kiran Devi by the dacoits. 4. In order to prove its case the prosecution has examined altogether 8 witnesses. They are : P.W.1 Jai Prakash Ram, student and brother of the deceased Kiran Devi, P.W.2 Ram Prasad, uncle of the informant and the deceased, P.W.3 Basan Ram, father of the deceased, P.W.4 Om Prakash Ram, informant as well as brother of the deceased Kiran Devi, P.W.5 Rama Shankar Chaudhary, a co-villager of the informant, P.W.6 Rameshwar Ram, brother of the deceased Kiran 5 Devi, P.W.7 Dr.Nawal Kishore Prasad Singh who conducted the post mortem of Kiran Devi on 26.11.1997 and P.W.8 Murat Ram, a formal witness who has proved Ext.8 Fardbeyan which resulted in formal F.I.R. Ext.9. Case diary has been marked as Ext.10. 5. The prosecution also exhibited signature of Ram Prasad on the seizure list as Ext.1, signature of Rama Shankar Choudhary on the seizure list as Ext.1/1, signature of Om Prakash Ram (P.W.4) on the fardbeyan as Ext.2, signature of Ram Prasad (P.W.2) on the fardbeyan as Ext.2/1, letters written by Kiran Devi (deceased) as Exts. 3 to 3/2, signature of Rameshwar Ram (P.W.6) on the seizure list as Ext.4, an envelope as Ext.5, letter written by Ravi as Ext.6, post mortem report as Ext.7, fardbeyan as Ext.8, formal F.I.R. as Ext.9 and case diary as Ext.10. 6. On the other hand, the defence has examined 7 defence witnesses. Out of them, D.W.6 is Anjani Kumar Singh, Munsif II and D.W.7 is an advocate‟s clerk and they are formal witnesses. Other defence witnesses are : D.W.1 Prem Chand Ram, a labourer, D.W.2 Rameshwar Rai, a farmer, 6 D.W.3 Sohrai Ram, a farmer, D.W.4 Prasidh Narayan Singh, an ex-farmer and D.W.5 Ashok Rai, a farmer. 7. The defence has also exhibited an Inland letter dated 8.3.1997 as Ext.A, statement of Prem Chand Ram before Sri A.K.Singh, Judicial Magistrate, Arah dated 28.4.1997 as Ext.A/1, statement of Rameshwar Rai under Section 164 Cr.P.C. dated 29.4.1998 as Ext.A/2, signature of Sri Ashok Rai (D.W.5) on the statement dated 30.4.1998 as Ext.B, statements under Sections 164 Cr.P.C. of Mathura Rai, Shhrai Ram, Prem Chand Ram, Rameshwari Rai, Rajendra Rai, Ashok Rai and Prasidh Narayan Singh respectively as Exts.C to C/6, fardbeyan of Agiaon P.S.Case No. 59 of 1997 as Ext.D. Photo copy of Inland letter dated 8.3.1997 has been marked „X‟ for identification. 8. The trial court after considering the facts came to the conclusion that the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts. Accordingly, the appellants were held guilty and they were convicted and sentenced, as stated above. 7 9. This court has to see whether the prosecution was able to prove the charges against all the appellants beyond the shadow of all reasonable doubts or not. 10. P.W.4, Om Prakash Ram, is the informant and brother of the deceased. He has stated that Kiran Devi was his sister and married with Ravi Shankar Ravi, son of other appellants of village Bahadurpur on 12.5.1996 according to Hindu rites. After marriage, she went to the house of her in-laws twice. Whenever she used to come to the house of the informant, she was saying that accused persons were subjecting her to cruelty and were demanding a Rajdoot motorcycle and for that she was being subjected to torture. She had sent letters to the informant mentioning therein that if the motorcycle is not provided to the accused persons, then she will be done away. The informant requested the accused persons to give some more time to arrange money to buy motorcycle but the torture escalated. On 26.11.1997 the appellants Rameshwar Ram, Somaro Devi, Ravi Shankar Ravi and some others came with the dead body of informant‟s sister. The 8 informant noticed that she was shot at her chest. She had to be cremated. After passing of 2 to 3 days, the informant and others went to the village of the accused persons to enquire about the occurrence. The villagers told that the accused persons have killed Kiran Devi. Thereafter they went to the police station with letters where fardbeyan was recorded. The informant put his signature which has been marked as Ext.2. His uncle Ram Prasad had also gone to the police station who had also signed on the fardbeyan which has been marked as Ext.2/1. The letters written by Kiran Devi were identified by this witness which have been marked as Exts. 3 to 3/2. This witness was cross-examined in detail on all the points but the defence could not get any vital contradiction which can create any doubt about his version. 11. P.W.1,Jai Prakash Ram, is another brother of the deceased who has supported the prosecution version and has narrated that the occurrence is of 25/26.11.1997. His sister Kiran Devi was married with Ravi Shankar Ravi. She was being tortured and harassed by the accused 9 persons and she used to inform this fact by writing letters in which she was mentioning that the motorcycle must be given to her husband; otherwise she would be kicked away from the house of her husband or she might be killed. Whenever she used to came to the house of P.W.1 she narrated the same agony that her husband was demanding a motorcycle and he was threatening her for dire consequences if the demand is not fulfilled. All the three accused persons were torturing her. This witness has been cross- examined in detail but except some minor contradictions, nothing could be pointed out in his entire testimony. 12. P.W.2,Ram Prasad, is uncle of the deceased. He has supported the evidence of P.W.1. P.W.3, Basan Ram, father of the deceased while supporting the evidence of P.Ws. 1 and 2 has stated that whenever Kiran Devi used to come to his house, she used to narrate about the demand of the accused persons for which she was being harassed and tortured by in-laws. This witness has stated that Kiran Devi had sent letters to provide a motorcycle but the financial constraint of the witnesses was 10 restraining them from fulfilling the demand of a motorcycle and ultimately after one and half years of marriage she was killed on account of her inability to bring a motorcycle for her in- laws. This witness has been cross-examined in detail but his evidence has remained unshaken. 13. Similarly P.W.5,Rama Shankar Chaudhary, has also supported the prosecution case. He is a co-villager of the informant and he has corroborated the evidence of other witnesses on the factum of demand of a motorcycle and writing of letters by the deceased. This witness has accompanied the informant up to police station and he is a witness of seizure list (Ext.1/1). This witness has identified the letters also. P.W.6, Rameshwar Ram, is another brother of the deceased Kiran Devi and has also supported the allegation of demand of a motorcycle, torture and killing. He is a witness of seizure list. 14. P.W.7 is Dr. Nawal Kishore Prasad Singh who has conducted the post mortem examination over the dead body of deceased Kiran Devi on 26.11.1997 at 2.00 P.M. and found the following ante mortem injuries: 11 (i) one circular wound margin inverted of half inch diameter over body of sternum of chest. Charring over surrounding area, clotted blood present over margin. This wound is wound of entry. (ii) One lacerated wound margin everted of one inch diameter over back of chest left side. Wound of exit. On dissection – skull: minenges and brain matter-pale. Chest cavity- right lung pale, left lung badly lacerated. Heart: badly damaged. Seen clotted and clotted blood present in the cavity. Rib nos. 6th and 7th on back of left side of chest found fractured. Abdominal cavity- liver, spleen, kidnies are pale. Urinary bladder- 2 ounces residual urine present. Stomach- 4 ounces semi digested food material present. Uterus- small in size. According to opinion of the doctor, all the injuries are caused by fire arm and time elapsed since death within 18 to 36 hours. In the opinion of this witness, the cause of death 12 is due to shock and haemorrhage caused by above mentioned injuries. Post mortem report has been marked as Ext.7. 15. Cause of death is not in dispute. It is on account of use of fire arm. According to informant, it is on account of fire arm caused by the accused persons whereas, according to the appellants, it was on account of a crime of dacoity which has occurred in their house. 16. The defence witnesses have denied the case of the prosecution in entirety and they have supported the defence version that daughter-in-law of Rameshwar Ram was killed in course of commission of dacoity in the mid-night on 25/26.11.1997. The witnesses have stated that after they heard the sound of firing went to the house of Rameshwar Ram where his daughter-in-law was found killed. The matter was informed to Agiaon Garahani police station and informant‟s family. Her Shradh was performed according to customs. Both sides participated in cremation as well as in subsequent rituals. According to defence witnesses, family of the accused persons had good relation with the deceased Kiran Devi. The defence witnesses have given their 13 statements under Section 164 of the Code of Criminal Procedure which have been marked exhibits. They have been cross-examined in detail and they have stated that they were deposing at the behest of appellant Rameshwar Ram as they have been brought to the court at his behest. The defence witnesses namely, D.Ws.1,2,3, 4 and 5 have deposed in the same tune and there is no major contradictions in their evidences but all of them have stated that they have deposed at the behest of appellant Rameshwar Ram. 17. The defence version is that for the same occurrence, F.I.R. was lodged earlier to the present one. The accused persons are facing trial in second F.I.R. and the court was not competent to take cognizance under Section 173(2)(i) of the Code of Criminal Procedure. The first F.I.R. was registered as Agiaon P.S.Case No. 59 of 1997 under Section 396 of the Indian Penal Code. It has been submitted that earliest information in regard to commission of a cognizable offence is to be treated as F.I.R. which sets criminal law in motion and investigation commences on that basis and there 14 can be no second F.I.R. in respect of same cognizable offence, same incident or occurrence. In this connection, learned counsel for the appellants has relied upon the judgment in the case of Pandurang Chandrakant Mhatre and others.Vrs.State of Maharashtra reported in (2009) 10 Supreme Court Cases 773. He further relied upon another judgment in the case of The State of Bombay.Vrs.Rusy Mistry and another reported in A.I.R. 1960 S.C.391 and also the judgment in the case of T.T.Antony .Vrs.The State of Kerala and others reported in A.I.R. 2001 S.C page 2637. 18. The legal position with regard to two F.I.R for the same incident has been discussed in Karichoudhary.Vrs.Mst. Sita Devi and sons reported in 2002(1) UJ. 206 (SC) and it has been held that there cannot be two FIRs against the same person in respect of the same case, but when there are rival versions in respect of the same episode, they could necessary take to shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. The ultimate object of every investigation is to 15 find out whether the offences alleged have been committed and, if so who have committed it. 19. In the present case, the killing is of one person but there are rival versions in respect of the same episode, so there were two different FIRs and accordingly investigations were taken up and present case was found to be correct. The judgments relied upon by learned counsel for the appellants is of no help to them in the facts and circumstances of the present case. 20. It has been argued on behalf of the appellants that there is long delay between the occurrence and lodging the present F.I.R. So the unexplained delay is fatal for the prosecution in the present case because it becomes doubtful. 21. The delay in giving the F.I.R. in itself cannot be a ground to create doubt about the prosecution case. There is no general proposition of law that the delay will be fatal. Even the delay of a short span can cause doubt about the prosecution version in some cases but each case has to be judged from the facts of its own. Two facts are never similar and so the 16 delay in every case has to be judged according to facts and circumstances of that case itself. Accordingly, the delay alone will not create much doubt in the prosecution version. In the present case, the accused persons have gone to the house of the informant with the dead body which was having fire arm injury. The informant and his family members had to take recourse of performance of last rites firstly and so they have participated in cremation and in subsequent events. Subsequently, they wanted to know the details under which Kiran Devi was murdered. Then they came to know a new fact and so the delay in lodging the present case, in the facts and circumstances, is well explained. 22. It has further been argued by learned counsel for the appellants that the prosecution has not been able to prove that “soon before her death”, the victim was subjected to cruelty or harassment by her husband or by his other relatives. Ingredients of Section 304B are as follows: (i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal 17 circumstances; (ii) such death must have occurred within seven years of her marriage; (iii) soon after her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) such cruelty or harassment should be for or in connection with demand for dowry. (v) Such cruelty or harassment is shown to have been mated out to the women soon before her death. 23. The prosecution has to prove the ultimate essential ingredients beyond all reasonable doubts after raising the initial presumption of „deemed dowry death‟. The legislature has by introducing Sections 113A and 113B of the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised in certain circumstances when the question arises as to whether a person has committed the dowry death of a woman and immediately before her death, such cruelty or 18 harassment in connection with demand of dowry, then Section 113B of the Evidence Act comes into effect and it brings the presumption that such person has caused dowry death. Section 304B of the Indian Penal Code and 113B of the Evidence Act have been inserted by the Dowry Prohibition (Amendment) Act , 1986 (Act 43 of 1986) with a view to combating the increasing menace of dowry death. Presumption under Section 113B of the Evidence Act is presumption of law. For proving the ingredients, it becomes obligatory on the Court to raise a presumption that the accused persons have caused dowry death. The Prosecution is only required to rule out the possibility of natural or accidental death so as to bring it within the purview of the „death occurring otherwise than in normal circumstances‟. If the prosecution fails to prove „soon before her death‟, the victim was tortured or harassment, then the ingredients of Section 304B of the Indian Penal Code will not be attracted. 24. In the present case, the evidences brought on the record through the letters of the deceased herself in which she has repeatedly 19 reminded her parents about the demand of a motorcycle by her husband or in-laws are enough to suggest continued harassment. 25. It has been argued by learned counsel for the appellants that the victim herself was willing to get a motorcycle so that she can increase her prestige in the society but in this case the evidence has come that for demand the victim was being tortured prior to death, then it appears that prior to her death it is clear that it was a torture in connection with demand of dowry. „Soon before death‟ is a relative term which is required to be considered in the specific circumstances of each case and no strait-jacket formula can be laid down to constitute a period of soon before the occurrence. The expression is pregnant with the idea of proximity test. „Soon before‟ is not synonymous with the terms „immediately before‟. This is because of what is stated in section 114, Illustration(a) of the Evidence Act. The determination of the period which can come within the term „soon before‟ is left to be determined by the courts, depending upon facts and circumstances of each case. The expression 20 „soon before‟ can normally imply that the interval must not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link. The evidence has to be led by the prosecution. It is always hazardous in fixing period that can bring the importance of proximity test both for proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. With regard to dowry death, the circumstances showing existence of cruelty or harassment to the deceased cannot be restricted to one particular instance, rather it refers to the entire course of the occurrence. Such conduct must be spread over a period of time. If it is shown that the cruelty or harassment for demand of dowry has persisted, then it shall be deemed that demand was continuing even „soon before her death.‟ 26. Another argument advanced by the learned counsel for the appellants is that the Investigating Officer has not been examined and specially in the facts and circumstances of the case, when two versions were available, then it was incumbent upon the Investigating officer to 21 come and depose. 27. From the evidences available on the record it appears that the Investigating Officer has not been examined but non-examination of the Investigating Officer is not always fatal. The court has taken steps for procuring the attendance the Investigating Officer but it failed and ultimately, the case has to be disposed of. Certainly, those irregularities which should have been avoided and the court should have taken steps for examination of the Investigating Officer but that fact in itself does not make the case doubtful because the consistent evidence is to the extent that the accused persons namely, the appellants Rameshwar Ram, Somaro Devi and Ravi Shankar Ravi were torturing Kiran Devi and have caused her death; otherwise in normal circumstances within seven years of marriage and soon before her death she was subjected to cruelty and she was being harassed by her relations. Taking into consideration all these, I am of the view that the prosecution has been ale to prove the entire charges that the appellants have caused death and prior to her death she was subjected to 22 cruelty and all of them have done this illegal act in pursuance of their intention. Accordingly, the judgment of the trial court requires no interference by this Court and the conviction and sentence of the appellants are upheld. 28. In the result, there being no merit, the appeal is dismissed. The bail bonds of appellant no.1, Rameshwar Ram, and appellant no.2, Somaro Devi, are cancelled and they are directed to surrender in the trial court