1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.715 of 2007 - - - - Against the judgment of conviction and order of sentence dated 13.7.2007 passed by Additional Sessions Judge, Fast Track Court-II, Jehanabad, in Sessions Trial No. 19 of 2004(S.J.)/ 831 of 2005. ===================================================== 1. Yogendra Prasad, son of Ram Chandra Prasad alias Loha Singh 2. Ram Chandra Prasad alias Loha Singh, sonof late Sitaram Singh 3. Gita Devi alias Sanghita Devi alias Sangita Devi, wife of Basant Prasad 4. Rubi Devi alias Son Fulwa Devi, wife of Ram Chandra Prasad alias Loha Singh All residents of Village Jamuama, P.S. Parsa Bigha, District Jehanabad .... .... Appellants Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellants : Shri Vijay Kumar, Advocate Shri Kuber Pathak, Advocate Shri Kapildeo Singh, Advocate For the Respondent : Shri Ajay Mishra, A.P.P. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - All the four appellants were convicted by learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-II, Jehanabad, in Sessions Trial No. 19 of 2004(S.J.)/831 of 2005 by judgment dated 13.7.2007. Appellant Yogendra Prasad and Ramchandra Prasad were only found guilty of committing the offences under Sections 304B and 201 read with Section 34 of the Indian Penal Code, whereas appellants Gita Devi and Rubi Devi were convicted only for committing offence under Section 498A of the Indian Penal Code while they were also charged under Sections 2 304B and 201 of the Penal Code. While passing the order of sentence on the same day in respect of appellants Yogendra Prasad and Ramchandra Prasad the learned trial Judge directed them to suffer rigorous imprisonment for seven years under Sections 304B of the Penal Code and rigorous imprisonment for three years under Section 201 of the Penal Code. The remaining two appellants, i.e., appellants Gita Devi and Rubi Devi were directed to suffer rigorous imprisonment for three years for their individual conviction under Section 498A of the Indian Penal Code. The sentences on the two counts passed against appellant nos. 1 and 2 were directed to run concurrently. 2. Undisputedly, the deceased Pinki Kumari, the daughter of Ramdeo Prasad was married to appellant Yogendra Prasad. There is no definite date stated in the fardeyana(Ext.1) but the period has been mentioned by making statement that the marriage was solemnized five years back. It was alleged that the accused were not ready initially to go through Dwiragman ceremony but after much persuasion they became ready to take the lady to their house.. However, on that occasion the appellants are said to have demanded a colour T.V., motorcycle and other articles as dowry. Any how, Dwiragman ceremony was gone through and Pinki Kumari went to her husband’s house and stayed there till she was reported dead. 3. The allegation was that on 3.4.2002, the informant received a message in the afternoon that the appellants had killed his daughter and they had already cremated her dead body. It is stated that he along with P.Ws.2 and 3 went to the house of the appellants to find that it was deserted by the appellants and came to know from the villagers that the 3 deceased Pinki Kumari had been killed by the appellants. The informant stated that he went to the cremation ground and found that no one was there but partially burnt bamboos and other articles as also the sari of the deceased were lying there. 4. The informant gave his fardbeyan on 3.4.2002 at 5 P.M. and on that date itself the F.I.R. of the case was registered and investigation was started which ended in submission of the charge sheet forwarding the appellants for trial. 5. The defence of the appellants was of innocence. As regards the death of the deceased, they were suggesting to P.W. 5 in paragraph 12 that the deceased was a patient of epilepsy and convulsion and on that account she died and an information was also given to P.W. 5 and he and others participated in the cremation. 6. Six witnesses were examined by the prosecution to bring home the charges, out of whom P.W. 1 was declared hostile. The informant Ramdeo Prasad( P.W.5) has stated in his examination in chief that after the marriage the deceased was not being taken to her matrimonial house by performing Dwiragman and the reason thereof was that the accused persons were demanding a colour T.V., etc. as dowry and, lastly, he learnt about the deceased being killed by the accused persons. He stated that he went to the house of the appellants to resolve the dispute when the appellants were asking him to either meet the demand or see his daughter killed. However, when one considers the evidence of the informant in paragraph 6, he may be found stating that he and the appellants belonged to the poor stratum of the society and nothing had been demanded at the time of solemnizing the marriage. He also stated that he had given rupees 4 thirty thousand and a few jewelleries without there being any demand. Thus, what appears from the evidence of P.W. 5 is that it was a dowryless marriage and there had not been any demand for dowry from the informant. If one considers the evidence of P.W.4, who happens to be the brother of the deceased one could find that there was no dowry given or demanded at the time of marriage of the deceased and appellant Yogendra Prasad. P.W. 4 has stated in paragraph 5 of his evidence that he and his sister were married in poor families as they were themselves poor persons and further that only reception of Barati had been held by his father and no dowry had been demanded or given to the appellants. Likewise, P.W. 3 who was the brother-in-law of the deceased or son-in-law of the informant stated in paragraph 6 that his father-in-law and the appellants were labourers and they used to earn their livelihood by investing labours and none of the parties was of the status of demanding or giving colour T.V. He has further stated that the marriage had been solemnized only under an agreement that the parties shall bear their own costs between themselves. If this could be the situation under which the marriage was solemnized, then the very allegation that the appellants were demanding a motorcycle and colour T.V. appears completely absurd and improbable. Besides, while I was being taken through the evidence of the witnesses , I could not come across any evidence on torture or harassment which could be brought on record. There was a solitary circumstance stated by P.W. 5 but that is at the time when Dwiragman was not being performed and he had gone allegedly to the house of the appellants when he had told to him to give demanded articles, else, his daughter shall be killed. It is admitted by P.W. 5 himself that Dwriragman had been performed some six months 5 prior to the occurrence and in between there was no report that the lady was being harassed or tortured. If this is the evidence then the ingredients of harassing the lady or treating her with cruelty appears not sustainable. Likewise, the evidence of the witnesses does not indicate as to when the marriage had been solemnized. P.W. 5 has not stated any period while he was deposing in court. However, P.Ws. 2,3 and 4 have stated that it was for some eight years that the lady had been married to appellant Yogendra Prasad. Section 304 B of the Indian Penal Code will be attracted only when it is established by evidence that the marriage had been solemnized seven years prior to the date of occurrence. Thus, what appears to me is that the evidence was quite insufficient for recording the conviction of the appellants. 7. In the result, the appeal succeeds and the same is allowed. The conviction of the appellants and sentence which were passed upon them are hereby set aside and the appellants are acquitted. 8. Appellant Yogendra Prasad appears confined in jail. If he is still continuing in custody, he shall be released forthwith if not wanted in any other case. 9. The remaining appellants are on bail. They shall stand discharged from the liabilities of their bonds. ( Dharnidhar Jha, J.) Patna High Court The 25th August, 2011 Kanth/N.A.F.R.