Criminal Appeal (SJ) No.243 of 1998 **** Against the judgment, dated 17th June, 1998, passed by Sri Shri Prakash Rai, Additional Sessions Judge, VII, Patna, in S. Tr. No. 104 of 1997 **** Devendra Prasad, son of Brijnandan Prasad, resident of village Bazitpur, P.S. Digha, district Patna .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Ajay Kumar Thakur, Dr.Anjani Pd.Singh, Md. Imteyaz Ahmad & Amir Alam, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Sections 304B and 498A of the Penal Code and sentenced to undergo rigorous imprisonment for ten years under Section 304B and with a fine of Rs.40,000/- for offence under Section 498A of the Penal Code and in default of payment of fine further sentenced to undergo rigorous imprisonment for two years with a direction that Rs.30,000/- shall be given to the informant. 3. The prosecution case is that the deceased, Manju Devi, 2 was married to the appellant three years prior to the occurrence. The father-in-law, mother-in-law, brother-in-law and husband of the deceased, Manju Devi, used to subject her to cruelty for non-fulfillment of the demand of a tempo. The informant, father of the deceased, was unable to pay so the deceased flee away from her sasural to naiher. On the date of occurrence, i.e., 11.10.1995, the husband of the deceased came and asked for vidai. The vidai was done at 11.00 a.m. At 05.00 p.m. the father of informant received information by some unknown person on telephone that the daughter of the informant is serious. On this information the informant reached at Makhdumpur. There the female inmates disclosed that victim has been sent to Kurji Hospital. The informant and family member reached to Kurji Hospital. They did not find the husband or the sasural people there. They found the dead body of the victim. The fardbeyan recorded. On the fardbeyan of the informant the first information report lodged and after investigation charge sheet submitted, cognizance taken and after commitment charge framed. 4. During the trial eight witnesses were examined. The trial Court considered the evidence, P.W. 8 is the father of the deceased and the informant though supported the prosecution case about the marriage within three years of the occurrence, but, has not supported the prosecution case about the demand and subjecting to cruelty to the victim. P.W. 2 has come to state that on information he went to Kurji Hospital, there he found the deceased on bed. But, this witness has become hostile. P.W. 3 has come to state that at 05.00 p.m. he got 3 telephonic information through Devendra that his wife is ill and she is being taken to hospital. P.W. 4 is the mother of the deceased. She supported the prosecution case about the demand and subjecting to cruelty to the victim in his evidence and P.W. 5 is sister of deceased has also supported the prosecution case about the demand and subjecting to cruelty. P.W. 6, the doctor, found that there is no external or internal injury and reserved the opinion till the viscera report is received. However, the viscera report never proved and the cause of death could not be ascertained. P.W. 7 has only come to say that he got information about the death of the deceased on telephone and P.W. 8 is the investigating officer. 5. The trial Court on considering the evidence of P.Ws. 4 and 5, the mother and sister, as well as the evidence of the doctor held that the prosecution has been able to prove the torture and harassment of the deceased for non-fulfillment of the demand, the marriage has been established within seven years by evidence of P.W. 1. The trial Court, further, taken into consideration the fact that the defence has, itself, suggested to the witness that Manju Devi, deceased, consumed poison and committed suicide and, further, observed that it was a case of unnatural death in suspicious circumstance, hence, convicted the appellant in view of the presumption under Sections 304B of the Penal Code and 113 B of the Evidence Act. 6. The learned counsel for the appellant, however, contends that the prosecution has not been able to prove the case and the three ingredients of Section 304B of the Penal Code has not been 4 established to draw the presumption under Section 113 B of the Evidence Act. P.W. 1, the father of the deceased, has not deposedeither with regard to the demand or subjecting cruelty and P.Ws. 4 and 5, who have supported the prosecution case regarding the demand and subjecting to cruelty, but, their evidence suffer from contradiction and the cause of death has not been established as the viscera report has not been brought on record and cause of death remained unascertained. 7. The learned counsel for the State contended that though the contradiction pointed out, but, are not as such to disbelieve. 8. However, it is well settled that for proving the offence under Section 304B of the Penal Code, three ingredients are required to be proved by prosecution that the marriage solemnized within seven years of the occurrence, the deceased was subjecting to cruelty for non- fulfillment of the demand of dowry and the death must be in suspicious circumstance. The presumption of guilt having established arise under Section 113 B of the Evidence Act when the three ingredients are established and then only the defence fasten with liability to establish then probable defence to rebut the presumption. 9. However, taking into consideration the evidence of P.Ws. 1, 3 and 5 supported the prosecution case about the marriage having been solemnized within seven years. However, with regard to the evidence of demand and subjecting to cruelty, P.W. 1, who is father, has stated in his evidence that he had no complaint against the susural people and the deceased had come to meet them out of her own 5 sweet will and remained with them for ten days. The vidai of the deceased was done on 11.10.1995 and on the same day he received information that his daughter is serious and when he went to sasural the female inmates disclosed that the deceased is admitted in Kurji Hospital and in Kurji Hospital he found his daughter dead and the sasural people were not there and he cremated the deceased after post mortem. Hence, this witness has not supported the prosecution case regarding the demand and subjecting to cruelty to the victim for non- fulfillment of demand of dowry. P.W. 4, however, has stated in her evidence in paragraphs 3 and 6 regarding the demand and subjecting cruelty for non-fulfillment of demand of dowry. However, the attention of this witness with regard to paragraphs 3 and 6 of the examination-in-chief has been drawn in paragraphs 19 and 26 of her cross examination and the investigating officer, P.W. 8, in his evidence in paragraphs 31, 32 and 33 has stated that Champa Devi, the mother of the deceased, has not stated before him regarding the demand or subjecting cruelty, as per her evidence in paragraph 30. However, the investigating officer stated that Champa Devi has stated that Manju Devi, the deceased, told her that her sasural is poor and so victim used to face difficulties there due to their way of life so she used to flee away and come to naiher. P.W. 5 has though supported the prosecution case about the demand and subjecting to cruelty in her evidence in examination-in-chief. However, in cross examination he has stated that he has not stated the fact mentioned in paragraph 9 of her examination- in-chief that they used to say her that they will kill and with regard to 6 the demand and assault in her examination-in-chief the attention has been drawn in paragraphs 19 and 20 of the cross examination and the investigating officer in his evidence has stated that Pushpa Kumari, P.W. 5, had not stated about the assault and demand of money misbehave with her sister or assault on her or poisoning of victim by sasural people, but, had stated that she has difficulty in living there is the way of life they live and so she does not want to go to sasural. So for this reason she used to come her to naiher fleeing away from sasural. 10. Hence, from the evidence of P.Ws. 4 and 5 it is apparent that though P.Ws. 4 and 5 have supported the prosecution case in examination-in-chief about demand and subjecting to cruelty, however, this part of the evidence has been contradicted by drawing their attention and regarding contradiction from investigating officer then it has also come that these witnesses have stated before police that the way of life of the sasural people was disturbing her as they were poor and so she used to flee. The version came in Court that the victim was subjected to cruelty for non-fulfillment of demand and whereas the statement before police is not to the effect that victim was subjected to cruelty for non-fulfillment of demand, but, to the effect that the sasural of the victim was poor and the victim unable to adjust due to her different way of life so she used to flee away from sasural to her naiher. Hence, the two statements are quite contradictory to each other can not coexist together. To say that she was subjected to cruelty for non- fulfillment of demand is one thing to say that one can not live as 7 sasural people have different way of life is quite different. One can not substitute for other, hence, the evidence of P.Ws. 4 and 5 suffer from contradiction and one is not substitute for other so does not inspire confidence as are suffer from contradiction. The contradiction is a mode to discredit a witness. Once the witness is discredited it is not worth to rely on his evidence. Hence, since, there is no other evidence office note, dated demand and subjecting to cruelty. Hence, the ingredients that there was demand and subjecting cruelty has not been established as except evidence of P.Ws. 1, 4 and 4 there is no other evidence. 11. However, so far the death of the deceased is concerned, though the accused persons informed that the deceased is ill, but, when the father of deceased went to sasural where the female inmates informed that she has been sent to Kurji Hospital and when he reached Kurji Hospital he found the deceased dead. There is no evidence that whether she was admitted in Kurji Hospital or not. However, this conduct of the accused persons that the accused persons were not there when the prosecution party reached at Kurji Hospital and the dead body was found lying there and, hence, the conduct of the accused persons, as such, indicates that the death was in suspicious circumstance. However, as per the evidence of the doctor, he did not find the cause of death as he referred the matter for viscera report examination, but, the viscera report has not been received and, hence, the cause of death remain unascertained. However, the conduct of the accused persons suggests that the death is in suspicious circumstance. 8 12. However, having regard to the fact that out of the three ingredients even two established, the third, subjecting to cruelty for non-fulfillment of the demand, is missing and unless the three ingredients are established a presumption can not arise for the guilt of the accused persons and, hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts and, hence, the order of conviction and sentenced, recorded by the lower Court, is hereby set aside. 13. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 24th day of August 2011, N.A.F.R., S.A.