Criminal Appeal (SJ) No.430 of 1998 **** Against the judgment, dated 18.11.1998, passed by Sri Hari Bhushan Prasad Sinha, Additional Sessions Judge, IV, Madhubani, in S. Tr. No. 4 of 1997 **** 1. Jageshwar Mahto, son of late Brispati Mahto 2. Punita Devi, wife of Jageshwar Mahto, both residents of village Kharnabani, P.S. Baburahi, district Madhubani .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. M/S Ajay Kumar Thakur & Ravi Ranjan, Advs. For the respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellants have been convicted under Sections 304B and 201 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years for offence under Section 304B of the Penal Code and two years for offence under Section 201 of the Penal Code. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case, as alleged in the fardbeyan of the 2 informant, who happens to be the father of the victim-deceased that his daughter, Ameriki Devi, aged about twenty years had married about four years ago with Ramchandra Mahto, son of Jageshwar Mahto, and marriage was solemnized after selling five kathas of land and whenever he used to go to meet his daughter she used to report about demand of Rs.5,000/- and buffalo and when he disclosed inability to satisfy the demand then his daughter used to be abused and subjected to cruelty and when the informant discussed the matter with the parents who happens to be the samdhi of the informant then they demanded the buffalo and money. It is further alleged that about seven months prior to the occurrence his son-in-law along with his daughter came and stayed for 4- 5 days. After their return he went to meet his daughter then he learnt that his son-in-law has gone to earn his livelihood. It is, further, alleged that father-in-law and mother-in-law continued to lay demand of money and buffaloes and subjecting cruelty for non-fulfillment of the demand. It is further alleged that about three days prior to the occurrence he, again, went to meet his daughter then her parents-in-law informed that his daughter has gone out and he will only be allowed to meet her till he satisfy the demand of Rs.5000/- and buffalo. On 16.06.1996, he learnt that his daughter has been done to death by burning her and then he came to sasural and learnt from the villagers that she has been done to death in the night of 15.06.1996. He found the burnt remains of his daughter at the house. 4. On the fardbeyan of the informant the first information report lodged and after investigation the charge sheet submitted. 3 5. During investigation the inquest report prepared with regard to burnt remains of the mass (flesh) weighing about five kilogram of alleged victim, Ameriki Devi. and post mortem conducted. 6. During trial, after framing of the charge for offence under Sections 304B and 201 of the Penal Code, nine witnesses were examined. P.Ws. 1, 2, 3 and 4 claimed to be the eye witnesses to the occurrence and claimed that they heard the sound of weeping of the victim-deceased and they went there and saw that the accused persons having caught hold of victim, sprinkling kerosene and setting on fire and at the time about 100-150 people have collected and, thus, they saw the burning of the daughter of the informant. P.W. 5 is the informant, who deposed that the marriage solemnized within five years and she was subjected to cruelty for non-fulfillment of the demand of Rs.5,000/- and buffalo and whenever he used to go to meet her she used to disclose about subjecting cruelty for non-fulfillment of the demand and on the last occasion about three days prior to the occurrence the victim- deceased disclosed about the demand and subjecting to cruelty by the father-in-law and mother-in-law. P.W. 6 is tender. P.W. 7 is formal witness. P.W. 8 is the investigating officer, who came to depose and proved Exhibit 1 fardbeyan and Exhibit 2 the formal first information report. He visited the place of occurrence and found remains of the dead body of a lady and also found that three trees in proximity also have been affected by fire in which the body was burnt. He prepared the inquest report in carbon process and the inquest report has been proved and marked as Exhibit 3 which only contains remains of the burnt mass 4 (flesh) which was sent for examination and received the report. He also procured the prosecution sanctioned under Dowry Prohibition Act, which has been marked as Exhibit ‘A’ and the burnt mass (flesh) of the decease was sent to Sadar Hospital. P.W. 9 is Dr. P.K. Das, who has proved the report of the said mass (flesh) of the burnt remains that the said burnt mass (flesh) and skeleton remains is of a female and opined that the age of the said female is 20 years (plus-minus one year) and definite opinion about cause of death is not possible with available remains and the said report has been marked as Exhibit 5 in his dictation and bear his signature. 7. The defence of the accused that the parents were separate from the husband of the victim-deceased and they were living separately after the gauna and, further, husband went to Rajasthan to earn his livelihood and he has to send Rs.400-500 for her maintenance and the marriage was solemnized about nine year back to the occurrence. 8. The Sessions’s Court, taking into consideration the evidence of the witnesses disbelieved the evidence of P.Ws. 1, 2, 3 and 4 to be an eye witnesses of the occurrence on the ground that P.W. 4 claims that he saw Ameriki Devi having killed by a shot and then the dead body was set in fire. According to P.Ws. 1 and 2 she was burnt to death. They saw the sprinkling of kerosene and setting on fire and her cry at the time of occurrence and, further, P.W. 1 claimed to be first nephew o the informant and first cousin of the deceased and P.W. 2 stated that about 100-150 persons have assembled, but, they did not try to save the deceased, which is not acceptable as improbable conduct of 5 the witnesses and, hence, disbelieved their evidences claiming themselves to be the eye witnesses. 9. However, the Session’s Court taking into consideration the evidence and hold that there is evidence that marriage solemnized within seven years and victim was subjected to cruelty for non- fulfillment of demand and death in suspicious circumstance, hence, since the ingredients of Section 304B of the Penal Code having been established to raise presumption under Section 113B of the Evidence Act to hold the dowry death. 10. The learned counsel for the appellants, however, challenged the order of conviction on the ground that P.Ws. 1 to 4 have been disbelieved by the trial Court and the only evidence remains is the evidence of P.W. 5 and P.W. 5 in his cross examination in paragraphs 7 and 8 has stated that he can not say about the date, time and year of the marriage and he went to the sasural first time after five years and, further, contended that parents of the husband of the victim-deceased were living separately and, hence, the offence is not made. 11. However, taking into consideration the prosecution case, P.Ws. 1, 2 and 4 claimed to be the eye witnesses of the occurrence, however, the lower Court has disbelieved them. From perusal of the evidence and reasoning I do not find any illegality as the same based on sound reasoning. However, it is not a case under Section 302 of the Penal Code and the claim of P.Ws. 1, 2 and 4 being eye witnesses having been disbelieved is not of much consequence as there is no charge under Section 302 of the Penal Code, but, the charge has been framed under 6 Sections 304B and 201 of the Penal Code. However, what is relevant for offence under Section 304B of the Penal Code are three ingredients, whether marriage solemnized within seven years, whether the death is in suspicious circumstance and whether there is demand of dowry and subjecting cruelty for non-fulfillment of the said demand. However, taking into consideration three ingredients, D.W. 5 has stated that marriage solemnized within five years. However, in cross examination he is unable to speak out the exact date. He has, further, stated that for the first time he has gone to sasural to his daughter after five years and though has stated that he went there five times, but, no period has been mentioned or taken whether in quick succession or at a long interval. However, P.W. 4 has also stated in his evidence that the marriage solemnized within five years and this evidence of P.W. 4 has not been challenged nor any suggestion has been given challenging the evidence. However, learned counsel for the appellants strongly relied upon evidence of D.W. 1, who is husband of the victim-deceased and has stated occurrence took place about and however, D.W. 1 in his evidence has stated that his age to be twenty five years, his evidence has been recorded in the year 1998 and he has stated that at the time of marriage the victim was 15-16 years old and he was also 15-16 years old. However, taking his age as twenty five years in the year 1998, the date of marriage shall be within seven years from the date of occurrence when he was 15-16 years old. More over, the examination of P.W. 9 shows that mass (flesh) which was at the place of occurrence was of woman aged twenty years and, hence, the victim-deceased was aged about 7 twenty years on the date of occurrence. If the victim-deceased was twenty years on the date of occurrence then nine years prior to this occurrence her age shall be eleven years and so she ought to be eleven years on the date of occurrence, but, according to D.W. 1, the husband of the victim-deceased, that the age of his wife at the time of marriage was 15-16 years. Hence, the defence version or the evidence of D.W. 1 that the marriage solemnized nine years prior to the occurrence is not acceptable and, hence, I am constraint to hold that the marriage solemnized within seven years of the occurrence. The evidence of P.W. 5 and the investigating officer also found the remains of the burnt mass (flesh). The evidence of doctor, P.W. 9, also suggests that the mass (flesh), which was sent for examination was of a twenty years old lady and evidence of P.W. 5 and the investigating officer suggests that the death was in suspicious circumstance. There is evidence of P.W. 5 that there was demand and subjecting cruelty for non-fulfillment of the demand and the parents are living separately from the husband of the victim-deceased is of no consequence and D.W. 1, himself, stated that he lives at Rajasthan and, hence, probability of the victim living with the appellant can not be ruled out. 12. Hence, taking into consideration the fact that three ingredients for offence under Section 304B of the Penal Code having been established the presumption of Section 113B of the Evidence Act established and the appellants are responsible for dowry death. So far offence under Section 201 of the Penal Code is concerned, there is no reliable witness to say that who disposed off the dead body. Hence, 8 there is no evidence regarding the disposal of the dead body by the appellants. The prosecution has not been able to prove the charge under Section 201 of the Penal Code, the order of conviction and sentence for the offence under Section 201 of the Penal Code is set aside. The order of conviction and sentence recorded under Section 304 of the Penal Code is maintained. 13. The appeal is partly allowed. ( Gopal Prasad, J. ) The Patna High Court, The 28th day of September, 2011, N.A.F.R., S.A.