Criminal Appeal (SJ) No.16 of 1999 With Criminal Appeal (SJ) No.50 of 1999 Against the Judgment and order dated 18.1.1999 passed by 4th Additional Sessions Judge, Vaishali, at Hajipur in S.Tr. No.97 of 1997. 1.Jitendra Kumar 2.Dhirendra Kumar 3.Dharmendra Kumar …… (in Cr.A.No.16/99) 4.Satendra Singh @Satendra Kumar Singh….(in Cr.A.No.50/99). …… Appellants. Versus State Of Bihar .... .... Respondent. For the Appellant/s : Mr. Ranvir Singh, Amicus Curiae. For the Respondent/s :Mr. Sujit Kumar Sinha, Advocate. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. These two appeals are being heard together and disposed of by a common Judgment as both the appeals arise out of the common Judgment and order dated 18th January,1999 passed in Sessions Trial No.97 of 1997 whereby the appellants have been convicted for the offence under sections 304B and 201 of I.P.C. 2. The prosecution case as alleged in the fardbeyan by the informant, Maheshwari Devi, P.W.10 that her daughter Sunaina Devi was married with accused, Sateyndra Singh about three years back. At the time of marriage her husband paid Rs.40,000/- cash and T.V. worth Rs.5,000/- and other house hold articles worth Rs.8,000/-. After the marriage the husband of informant died.Her daughter came in the Shradh of his father and disclosed that the sasural people demandd a colour T.V. and Rs.20,000/- cash and they pressurized Naihar people to fulfill the aforesaid demand. The son of the informant who lived in Patna High Court CR. APP (SJ) No.16 of 1999 dt.15-10-2011 2 Assam went to the sasural of the sister (victim) but the sasural people disclosed that if he will not satisfy the demand of Rs.20,000/- and colour T.V. he will not be allowed to meet his sister and they did not allow him to meet. The informant thereafter called the mother-in-law of the victim and disclosed that after the death of her husband he is not in a position to fulfill the aforesaid demand but the mother-in-law of the victim stand by the demand and disclosed that if the demand is not fulfilled, the victim would be done to death and thrown in the Ganges. It is further alleged that in between night of 2/3.2.1996 it was learnt that the victim was done to death and was thrown in gunny bag and when the informant got the information then, the informant went to sasural of her daughter along with Ram Janam Singh and Surendra Prasad and found the house closed and the father-in-law, husband and Dewar were not present in the house and the grand father-in-law drove them and then they learnt that they have done to death the victim and thrown in Ganges. 3. On the written report of the victim F.I.R. was lodged and after investigation charge sheet was submitted by the police. However, during the trial 10 witnesses were examined on behalf of the prosecution and oral and documentary evidences were produced. 4. The defence has also adduced oral and documentary evidence who are D.W.1 Dr.S.K.Rakesh, P.W.2 Balmiki Singh, P.W.3, Ram Sobhit Singh. The other documentary evidences are Ext.C and D. 5.The trial court taking into consideration the evidence held that the prosecution has supported the prosecution and proved that Patna High Court CR. APP (SJ) No.16 of 1999 dt.15-10-2011 3 the marriage was solemnized within seven years of the occurrence and there is demand of dowry and subjecting cruelty and the victim was done to death but neither the mother nor the relatives of the victim was informed nor any post mortem examination was done. Hence, the death is in suspicious circumstance. The trial court took into consideration the evidence of D.W.1 that the victim was treated by him but she was referred to P.M.C.H. but did not say as to who brought the patient to his clinic and how she died nor any post mortem was done. The trial court taking into consideration the evidence held that the death is within seven years of the marriage and there was demand and subjecting to cruelty for non fulfillment of the demand and death in suspicious circumstance and ,hence, three ingredients raise presumption under section 138 of Evidence Act to establish the offence under section 304B of I.P.C. and convicted the appellant under sections 304B and 201 of I.P.C. 6. The learned amicus curiae has contended that there is no eye witness to the occurrence and the allegation against the accused persons are vague and omnibus. 7. The learned counsel for the State has, however, stated that the prosecution has proved the case by the legal and reliable evidence and the ingredients of section 304B of I.P.C. has been established and, hence, witnesses are not eye witnesses are of no concern. 8. However, taking into consideration the respective submissions I find that the witnesses have supported the prosecution case. P.W.9 has stated that the marriage was solemnized in the year 1993 and the occurrence is of the year 1993 and, hence, the occurrence Patna High Court CR. APP (SJ) No.16 of 1999 dt.15-10-2011 4 is well within three years. P.Ws. 7, 8, 9 and 10 have supported the prosecution case about the demand and subjecting cruelty for non- fulfillment of the dowry demand and further it has been asserted that the victim was done to death and dead body was disposed off without any intimation either to the parent of victim or to the public authority and without postmortem in heavy hasto. 9. The defence has adduced evidence of D.W.1 who is private doctor. Though he has deposed that he had treated the victim for abdominal pain and vomiting but he stated that he had referred the patient to the Sadar Hospital, however, the person who attended the patient requested him to refer the patient to P.M.C.H. However, neither the defence has brought any material evidence to suggest that the victim was ever treated in P.M.C.H. or Sadar Hospital and the dead body was disposed of without intimation to the public authority like a police or the doctor nor even post mortem examination having not been done nor any intimation was given to the Naihar people and, hence, it is apparent that the victim’s death was in suspicious circumstance and, hence, three ingredients for offence under section 304 I.P.C. has been fulfilled whereas presumption under section 113 B of I.P.C. that the accused persons have caused the dowry death. 10. However, having regard to the facts and circumstances that the appellant Sateyndra Singh is the husband and other appellants are the brothers of the appellant, it is alleged that the allegations are vague and general of dowry demand and there is no specific allegation with regard to the demand and for subjecting cruelty for non-fulfillment of dowry demand against three appellants who in Patna High Court CR. APP (SJ) No.16 of 1999 dt.15-10-2011 5 Cr. Appeal No.16/99 and, hence, it creates a doubt about their complicity. However, in Cr. Appeal No.50/99 appellant is the husband and, hence, under the facts and circumstances, the conviction of the appellant Sateyndra Singh @ Satendra Kumar Singh, who is the husband of the victim, for the offence under section 304 B of I.P.C. is hereby sustained and is confirmed. However, with regard to the offence under section 304 B with regard to the other three appellants who are Dewars, they are required to give benefit of doubt and, hence, I give the appellants, Jitendra Kumar, Dhirendra Kumar and Dharmendra Kumar the benefit of doubt and their conviction and sentence recorded under section 304 B of I.P.C. is hereby set aside. However, so far the occurrence under section 201 of I.P.C. is concerned, there is no eye witness to the occurrence of concealing or disposing of the dead body and no presumption can be attached as offence under section 304 B of I.P.C. and, hence, conviction under section 201 of I.P.C. against the appellants of both the Cr.Appeals are hereby set aside. 11. In the result, conviction and sentence recorded under sections 304 and 201 of I.P.C.by the lower court against the appellants, namely, Jitendra Kumar, Dhirendra Kumar and Dharmendra Kumar is hereby set aside and Cr.Appeal No.16 of 1999 is allowed and, however, Cr.Appeal No.50 of 1999 is concerned conviction and sentence recorded under section 304 B of I.P.C. is sustained against the appellant, Sateyndra Singh. However, conviction and sentence recorded under section 201 of I.P.C. is hereby set aside and hence, Cr.Appeal No.16/99 is allowed and Cr.Appeal No.50/99 is allowed in part. Patna High Court, The 15th October,2011, AnilKrSinha / N.A.F.R. (Gopal Prasad)