Criminal Appeal (SJ) No. 271 of 1997 Against the judgment of conviction and order of sentence dated 19.09.1997 passed by Shri Shatrughan Singh “Rampuri” learned 2nd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 123 of 1995. 1. Bidyanand Singh, Son of Late Ramesh Singh. 2. Fula Devi, wife of Late Ramesh Singh. Both resident of village – Dewaria, P.S. – Hajipur, District – Vaishali. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Kanhaiya Prasad Singh, Sr. Advocate. Mr. Chandra Mohan Jha, Advocate. Mrs. Jyotsna Kumari, Advocate. For the Respondent : Mrs. Rina Sinha, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for the offence under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further convicted for the offence under Section 328 of the Indian Penal Code but no separate sentence for the offence under Section 328 of the Indian Penal Code. 3. The prosecution case as alleged is that the victim was the daughter of the informant aged about 24 years married with Bidyanand 2 Singh in the year 1991 and there was allegation of demand of motor- cycle and subjecting cruelty for non-fulfillment of the demand and was subsequently poisoned to death. 4. On the fardbeyan of the informant, the FIR was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and after commitment the trial court has framed charges under Section 304B and 328 of the Indian Penal Code and during investigation sixteen witnesses were examined by the prosecution along with the documentary evidence and on consideration of the oral and documentary evidence, the order of conviction and sentence was recorded as mentioned above. 5. Learned counsel for the appellants, however, contended that no ingredients either for the offence under Section 304B or 328 of the Indian Penal Code has been established and hence the prosecution has not been able to prove the charges. 6. However, as per the prosecution case there is allegation of subjecting cruelty for demand of dowry and death by poison. However, out of the 16 witnesses examined, P.Ws. 1, 5 and 9 have been tendered, P.Ws. 2, 3, 4, 6, 8 and 11 have been declared hostile by the prosecution as they have not supported the prosecution case and P.Ws. 12 and 13 are hearsay witness and have only stated that she learnt about the death. 7. However, P.W. 7 is the Chaukidar and has stated that he learnt 3 about the death and informed the police station. 8. P.W. 14 is the doctor and P.W. 16 is the Police Officer who has proved the inquest report. Hence the only material witness remained is the informant P.W. 10. However, though the informant has stated that the occurrence took place in the year 1995 and the marriage of the victim was solemnized in the year 1991 and she has stated in his evidence that she learnt about the death of Babita Devi from Pradeep and she went to Daulatpur. She was married in the year 1991 and she was living with her husband as husband wife and she disclosed about the assault for the motor-cycle by her husband and mother-in-law and she came twice after being vexed with the assault. She has further stated that she learnt after coming to Daulatpur that accused person has killed Babita Devi. However, in his cross-examination she has stated that he cannot say how his daughter died and has further stated that the accused never personally demanded any Tilak or dowry and the relationship of his daughter with the son-in-law was good. However, the evidence of this witness is in contradiction though he supported the prosecution in the examination-in-chief that her daughter reported her about the assault and even she ran from Sasural to his Naihar twice. These evidence whatever he has learnt from his daughter is admissible only to the extent that her daughter told her but these evidence are hearsay with regard to the factum of assault by the appellants to the 4 victim. 9. However, having regard to the fact that this witness has stated that the appellants did not demand personally Tilak or dowry and the relationship of the victim with her son-in-law was good and hence it can well be inferred that there is no evidence regarding the subjecting cruelty and except the evidence of P.W. 10 in his examination none has come to support the prosecution case regarding the demand and subjecting cruelty but evidence in examination in chief is in contradiction to evidence in cross-examination. 10. Further the evidence of the doctor P.W. 14 that no definite cause could be ascertained about the death and the viscera report has been preserved for chemical examination and there is no report of the viscera and further the doctor has opined that he did not find in the post- mortem examination any symptom of poisoning and further no anti- mortem injury find on the body of the deceased and hence under the facts and circumstances the death of the victim in suspicious circumstance is missing. 11. Hence taking into consideration the entire evidence there is no cogent and reliable evidence regarding the demand and subjecting cruelty and the only evidence regarding the demand and subjecting cruelty of the evidence of P.W. 10. However, P.W. 10 in his cross- examination indicates that the appellants never demanded from the 5 victim and hence in view of his evidence in cross-examination that there is no cogent and reliable evidence regarding the fact subjecting cruelty for non-fulfillment of the demand of dowry hence from these facts, it is apparent that there is no evidence that the victim was poisoned or she died out of poisoned nor there is any evidence that the death of the victim was in suspicious circumstance or there was any demand that the victim was subjected to cruelty soon before the occurrence for non-fulfillment of the demand of dowry and hence when the ingredients of the 304B of the Indian Penal Code has not been established by the prosecution. The onus does not shift to the appellants to give any defence or to fasten him under Section 113B of the Indian Penal Code of the liability to shift the onus and hence having regard to the facts and circumstances, I find and hold that the prosecution has not been able to prove the charges leveled against the appellants beyond reasonable doubt and hence the appeal is allowed and the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna Dated, the 28th July, 2011. N.A.F.R./Kundan.