Criminal Appeal (SJ) No.203 of 1997 [Appeal against the judgment and order dated 31.7.1997 passed by the 1st Additional Sessions Judge, Saran (Chapra) in Sessions Trial No.326 of 1994] 1. Bikrama Rai, son of late Marai Rai 2. Santi Devi wife of Bikrama Rai 3. Jitendra Rai, son of Bikrama Rai, All are resident of village Samsuddinpur, P.S. Revilganj, District Chapra (Saran) …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. N.A. Shamsi, Advocate For the Respondent : Mr. R.B.Roy ‘Raman’, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s.304B/34 I.P.C. and sentenced to R.I. for ten years by a judgment dated 31.7.1997 passed by the 1st Additional Sessions Judge, Saran (Chapra) in Sessions Trial No.326 of 1994. 2. The case of the prosecution according to Kanhaiya Rai (P.W.7) is that his sister Savita Devi had been married with appellant Jitendra Rai in the year 1991 and the Donga had taken place in March, 1993. On 27.6.1993 one Lalan Rai came to the house of the informant and informed him that his sister had been done to death by her in-laws. He further alleged that appellant Bikrama Rai, who was the father-in-law of the deceased, had called the informant to his house, at which on 18.6.1993 he along with P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 had gone to the house of the accused persons, where appellant 2 Bikrama Rai had made a demand of T.V, tape recorder and two piece suit. The informant sought time till 1.7.1993, but he ordered the rest of the accused persons that in case the demand for dowry was not fulfilled by 26th June, 1993 she would be killed. The present occurrence is said to have taken place on 28.6.1993. 3. During trial the prosecution has examined nine witnesses. Out of whom, P.W.4 and P.W.5 have been tendered, whereas P.W.7 is the informant. P.W.8 is the Dr. Ram Ekbal Prasad, who conducted the postmortem examination on the dead body of the deceased and found strangulation mark on her neck and that she had died on account of asphyxia. He ruled out the possibility of hanging. P.W.9 Janak Prasad Singh is the Investigating Officer of the case. P.W.1 Jay Nath Rai, P.W.2 Ram Layak Rai, P.W.3 Raju Rai, P.W.6 Ram Swaroop Rai are witnesses, who supported the factum of occurrence and also that they have heard that demands of dowry had been made by appellant Bikrama Rai. 4. On behalf of the defence, two witnesses were examined on the plea of alibi of appellants Bikrama Rai and Jitendra Rai, the husband of the deceased. 5. In a case u/s.304B I.P.C. it is the bounden duty of the prosecution to prove; (i) death had taken place within seven years of marriage, (ii) death was unnatural and (iii) soon before the death demands for dowry had been made and if the conditions were fulfilled the presumption clause would operate 3 against the accused persons. In the present case no doubt the prosecution witnesses have consistently stated that the marriage had taken place in the year 1991 and the Donga had taken place in 1993 and in the same year the death had occurred. There is no dispute with regard to the fact that the deceased had died within seven years of the marriage. As per the next clause about the factum of unnatural death on an appreciation of the evidence of P.W.8 Dr. Ram Ekbal Prasad, there is no scope for disagreeing that in fact the death was unnatural. So there is no possibility of any dispute with regard to this clause as well. As for the next clause that soon before the death the accused persons had demanded dowry the depositions of P.W.1, P.W.2, P.W.3, P.W.6 and P.W.7 are relevant on this point. P.W.7 Kanhaiya Rai, the informant, stated in the First Information Report that when demands of dowry were made by the appellant Jitendra Rai, he himself along with P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 had gone to the house of the appellants on 18.6.1993, where the appellant Bikrama Rai had demanded dowry and had threatened that in case they failed to honour the demand within the time limit, his sister would be killed. P.W.1, who happens to be the cousin of the deceased, contradicted P.W.7 by saying that on 18.6.1993 appellant Bikrama Rai came to the house of his uncle (informant) and demanded the articles which have been promised by them but not delivered as yet. When the uncle stated that he had given an application for advance in the office 4 and, therefore, he would give the articles by 1.7.1993. He also then stated that on 18.6.1993 at about 3 P.M. he along with the informant and the rest of the witnesses had gone to the house of the appellants and told him that they would give the articles by 1.7.1993. At this, all the three accused persons had threatened that in case it was not delivered by 26.6.1993 the deceased would be killed. In his cross examination he stated that the distance of village and that of the accused was about 9- 10 kilometers. His attention was drawn to the previous statement that he had not stated in his statement recorded u/s.161 Cr.P.C. that he had gone along with others to the house of the appellants on 18.6.1993, where after the accused persons had demanded dowry and also threatened them of dire consequences. P.W.2 Ram Layak Rai stated that the deceased had told him that the in-laws were demanding dowry and were torturing him on account of it. He did not say anything about having gone to the house of the appellants, where they demanded dowry. He conceded in his cross-examination that at the time of marriage there was no dispute or altercation on account of anything. His attention was also drawn to the fact that he had not stated before the police that he had met the deceased, who had told him about demands of dowry by the in- laws and her torture on account of non-fulfilment of the same. P.W.3 Raju Rai stated that appellant Bikrama Rai had come and demanded tape recorder, colour T.V. and three piece suit, at which he along with others had gone to the house of the 5 appellants when the appellants gave them time till 26.6.1993 for fulfilling the demands. His attention was also drawn to the fact that he had not stated in his statement u/s.161 Cr.P.C. that he had gone to the house of the appellants on 18.6.1993, where the appellant Bikrama Rai had pressed for sending the articles. He stated that the deceased was his cousin sister. P.W.6 Ram Swaroop Rai stated that he was the cousin brother of the deceased that he had gone to the house of the appellants on the date of occurrence. He does not mention anything about the incident of 18.6.1993. P.W.7 Kanhaiya Rai in his deposition during trial once again reiterated that on 18.6.1993 Bikrama Rai came to his house and demanded colour T.V., two in one tape recorder and three piece suit, but does not mention any date on which he along with other witnesses went to plead for time till 1.7.1993. He conceded in his cross examination that no dispute or altercations had arisen at the time of marriage or Bidai. 6. On a careful evaluation of the depositions of the aforesaid witnesses, it is evident that they have given contradictory version as to when or where the demand of dowry had been made. In view of such untrustworthy evidence in this regard, in my opinion, the third clause which the prosecution has to prove that the accused had demanded dowry soon before the death of the deceased is not satisfied. Having not been able to prove this clause of Section 304B I.P.C. the other two clauses have no meaning in the eye of law. 7. In the result, the appeal is allowed and the order of 6 conviction and sentence passed against the appellants on 31.7.1997 by the 1st Additional Sessions Judge, Saran (Chapra) in Sessions Trial No.326 of 1994 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 14th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )