Criminal Appeal (SJ) No.70 of 1999 **** Against the judgment, dated 19.03.1999, passed by Shri Sanjay Priya, Additional District and Sessions Judge, VI, Purnea, in S. Tr. No. 59 of 1998/1 of 1999 **** Jagdsih Chauhan, son of Lala Prasad Chauhan, resident of village Garhiya Baluwa, P.S. K. Nagar, district Purnea .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. Arun Kumar Tripathi Adv. as amicus curiae 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 appellant has been convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged in the fardbeyan by the informant the father of the deceased victim that on 29.07.1997 his maternal grand son, Deepak Kumar, informed him that the victim, Rina Devi, and her husband, Jagdish Chauhan, are on the tempo and 2 the victim is lying dead. On the said information, the informant (P.W. 5) along with his son Sunil Kumar Rai (P.W. 4) and wife of the informant (not examined) reached to Raj Nagar Dackbungalow and saw his daughter lying dead on tempo and his son-in-law sitting on the tempo. He enquired from the son-in-law about the cause of death who told that Rina Devi has taken poison out of anger and he was taking her to hospital for treatment and she died in way. The further case of the prosecution that the victim, Rina Devi, was married with Jagdish Chauhan two months back and after the marriage his daughter Rina Devi and son-in-law used to live with his elder daughter Shanti Devi in Line Bazar. The further case is that the appellant used to subject her cruelty for the non-fulfillment of the demand of dowry. The appellant had been to the sasural of the victim about 15 days prior to the occurrence and there she was subjected to cruelty for the non- fulfillment of the demand of Rs.15,000/- and for non-fulfillment of this demand she was done to death by poisoning. 4. On the fardbeyan, the first information report alleged and after investigation the charge sheet submitted, cognizance taken and case committed to the Court of sessions. 5. However, during the trial nine witnesses were examined by the prosecution. However, the doctor, who conducted the autopsy on the person of the deceased, has not been examined and the post mortem report has formally been marked Exhibit under Section 394 of the Criminal Procedure Code. 6. However, during the trial out of nine witnesses 3 examined by the prosecution, P.Ws. 1 to 4 declared hostile having not supported the prosecution case, P.W. 5 is the informant, P.W. 6 is the investigating officer and P.Ws. 7, 8 and 9, however, disclosed that they do not know anything about the occurrence and have also been declared hostile and, hence, the hinges only on the evidence of P.Ws. 5 and 6. The trial Court, however, taking into consideration the evidence of P.Ws. 1 to 5 held that they have supported the prosecution story about the death of the victim, Rina Devi, of unnatural death on account of poisoning and, further, take into consideration that the fact that P.W. 6 has also stated in his evidence that P.Ws. 1 to 4 has stted before him under Section 161 of the Criminal Procedure Code that victim, Rina Devi, has been subjected to cruelty of harassment by her husband in connection with of dowry. The trial Court take into consideration the fact that the post mortem report of the doctor mentions that no opinion about the cause of death can be given, the viscera though having been preserved, but, the investigating officer has s aid that he has not sent the viscera for chemical analysis for filing of the charge sheet, but, in view of the evidence of P.Ws. 1 to 5 about the death of Rina Devi, by poisoning as well as the circumstance that she found dead on the tempo and, hence, held that prosecution has been able to prove the charges beyond reasonable doubts for offence under Section 304B of the Penal Code taking into consideration that in case of dowry death. It is presumed that the accused persons caused death of the deceased for non-fulfillment of the dowry demand and the defence has not led any evidence to show 4 that accused persons had taken any steps to inform the parents of Rina Devi about the death. 7. The learned amicus curiae, however, contends that the prosecution has not been able to prove the ingredients of Section 304B of the Penal Code. 8. However, in case of dowry death or to prove an offence under Section 304B of the Penal Code, it is well settled that the prosecution is required to prove that the marriage of the victim is solemnized within seven years of the occurrence, the death of the victim is in suspicious circumstance, i.e., other than normal circumstances and, further, there is demand just before the occurrence the victim was subjected to cruelty for non-fulfillment of the demand of dowry. If these ingredients are established a presumption under Section 113B of the Evidence Act can be raised and evidence established that soon before the death the victim was subjected to the cruelty. 9. However, coming into the facts and circumstances the nine witnesses examined, P.Ws. 7, 8 and 9 have turned hostile as have not supported the prosecution case on any count. However, P.Ws. 1 to 4 are the sister, brother, bhabhi and relative of the deceased though they have stated that the marriage of the victim solemnized within seven years of the occurrence as the marriage solemnized on 04th June, 1997, and the occurrence took place on 29th July, 1997, and the only evidence transpires from the evidence of these witnesses that the dead body of the victim was on the tempo and after the information 5 the witnesses went there and saw the victim and it is stated that the accused disclosed that the death is by poisoning. However, the doctor, who conducted the post mortem examination, has not been examined and the post mortem report has formally been admitted in evidence under Section 294 of the Criminal Procedure Code. However, for the said post mortem report the cause of death has been stated with regard to the cause of death, it has been stated in the opinion of the doctor that the cause of death has not been ascertained, however, the viscera has been preserved for chemical analysis. However, the investigating officer has not sent the viscera and viscera report has not been brought in evidence to suggest whether the cause of death by poisoning and in view of these evidences it can not be held beyond reasonable doubts that the victim died out of the poisoning and having regard to the fact that mere on the basis of evidence that the accused disclosed that the victim died out of poisoning or death of the victim was other than the normal circumstance when the cause of death has not been ascertained and it is a serious lacunae about the prosecution to establish prima facie that the death was in suspicious circumstance. 10. The evidence regarding subjecting cruelty for non- fulfillment of demand is concerned, P.Ws. 1 to 4 have not supported the prosecution case regarding the fact that there was any demand or that the victim was subjected to cruelty for non-fulfillment of the demand and regarding this part the witnesses have been declared hostile by the prosecution, but, there is nothing in the evidence of 6 P.Ws. 1 to 4 to support the prosecution case about subjecting cruelty for non-fulfillment of the dowry demand. However, P.W. 5 is the informant though he has come to support the prosecution case that the victim died out of the poisoning and after the marriage his daughter is to living in Line Bazar though he has come to say that the relationship of his daughter and son-in-law was not good. He has, further, stated that about 15 days prior to the date of occurrence his son-in-law taken the victim to his village Garihar Baluwa, however, he has stated that he does not know that how they keep his daughter at village Garihar Baluwa. This witness has been declared hostile by the prosecution. However, during the cross examination he has stated that he has not stated before daroga that his son-in-law vex his daughter for fulfillment of Rs.15,000/- by his father and even used to threatened to kill by poisoning if the demand is not fulfilled, however, this witness in his cross examination by the accused as stated that he is a poor man and has no property and Jagdish Chauhan has performed marriage with his daughter without any demand out of poverty of the informant. Though he has stated that after marriage a demand of Rs.15,000/- was made and his daughter used to send message for the money, however, he has stated that his son-in-law never demanded anything from him and after marriage there was some dispute, but, again, he says that both live together with love and affection. He, again, says that there was no quarrel between them. However, answer to a question he has stated that he lodged the case out of excitement and to a Court question he had stated that he got agitated on the news 7 about the poisoning of his daughter. He has, further, stated that he learnt about the poisoning of rumour and on hearing the rumour he became excited. This P.W. 5 is the father and he is the sole witness. However, the allegation regarding demand of subjecting cruelty has fluctuated and, hence, having regard to the facts and circumstances when the evidence regarding the fact whether the death of the victim is in suspicious circumstance and, further, the evidence regarding the fact whether the victim was subjected to cruelty just before the occurrence. On these two parts the evidence are vacillating and there is no cogent, reliable and unimpeachable evidence that the victim was subjected to cruelty for non-fulfillment of demand and, hence, two ingredients has not been based on cogent, reliable and unimpeachable evidence. Hence, unless the prosecution passed through these two tests and establish the two ingredients, the presumption can not be raised against the accused for offence under Section 304B of the Penal Code. The prosecution has prima facie to establish the three ingredients, i.e., the death in suspicious circumstances, the marriage solemnized within seven years and soon before the occurrence the victim was subjected to cruelty. Unless the three ingredients are established the presumption can not be drawn under Section 113B of the Evidence Act to hold the appellant guilty for offence under Section 304B of the Penal Code and in such a situation non- explanation does not have any consequence and the presumption can only come into play when the three ingredients are established by prima facie and unimpeachable evidence. However, having regard to 8 the facts and circumstances the three ingredients having not been established the presumption for offence under Section 304B of the Penal Code neither be drawn nor can be accepted. 11. Hence, taking into consideration, under the facts and circumstances, I find and hold that the prosecution has not been able to prove the three ingredients for offence under Section 304B of the Penal Code, the prosecution has not been able to prove the charge beyond reasonable doubts. Hence, I acquit the appellant of the charge. 12. Hence, I find and hold that the prosecution has not been able to prove the charge beyond reasonable doubts to record the conviction. The order of conviction and sentenced, recorded by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J ) The Patna High Court, The 22nd day of December 2011, N.A.F.R., S.A.