CRIMINAL APPEAL No.601 OF 2004 Against the judgment and order dated 21.7.2004 passed by Shri B.M.Srivastava,Additional Sessions Judge, F.T.C. I Purnea in Sessions Case No. 552 of 1996 Tr. No. 65 of 2002 -------- BIDESHI MEHTAR @ BIDESHI MEHTA-----(Appellant) Versus STATE OF BIHAR----------------------(Respondents) For the Appellant: Mr.Praveen Kr.Agrawal,Advocate For the Respondent:Mr. Umesh Prsad Singh, APP -------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. Appellant has been convicted and sentenced to ten years rigorous imprisonment under section 304B of the Indian Penal Code vide order dated 21.7.2004 passed in Sessions Case No. 552 of 1996/65 of 2002 by Additional Sessions Judge (FTC) I, Purnea. The prosecution case is that one Bechni Devi, the informant gave her fard-beyan on 1.11.95 at about 15.30 hours in the Sadar Hospital, Purnea that on the said date at about 10 A.M she was informed by one Bhoklu Mehtar that her daughter has suffered burnt injury by fire and has been admitted in Sadar Hospital, Purnea. On this information she reached the hospital and saw her daughter in extensively burnt condition. She further stated that she had approached the appellant who happens to be the son- in-law on many occasion earlier for Bedai of her daughter but the appellant did not agree. She even sent her son for Bedai but the appellant did not agree. It is also stated that the appellant used to assault his wife. Based on the fard-beyan investigation of the case was taken up and a chargesheet under section 2 304B of the Indian Penal Code was submitted against the appellant. Seven witnesses have been examined on behalf of the prosecution. P.W. 7 is a formal witness. Informant is P.W.4. In her evidence she reiterated the allegation and the statement made in the fard- beyan. She alleged that her daughter had been burnt to death by the accused-appellant who was married three to four years ago. She was not an eye witnesses to the occurrence is not in dispute but had made the allegation in the given background of the relationship. P.W.5 is the brother-in-law of the deceased. He in his evidence has also supported the version of P.W.4 that the deceased was not being treated well by the accused-appellant and on many a occasion Bedai was refused. P.W.1 is the compounder who attended the deceased initially and advised that she be admitted to hospital. Nothing more has been stated by him. P.W. 2 is a witness who saw the deceased in a burnt condition when he reached the place of occurrence after hearing a hulla. Same is the statement or stand of P.W.3 one Bhuneshwar Mehtar. Learned counsel appearing on behalf of the appellant has a few submissions to make against the order of conviction passed in the case. His primary contention is that no offence under section 304B of the Indian Penal Code is made out against the appellant because nowhere in the evidence there is any material to show that there was demand of dowry made by the appellant. Merely because there is an allegation that the deceased was not being treated 3 well would not make it a case of death of his wife as a dowry death. Difference within the family and non-compatibility cannot be presumed to be a case of harassment for dowry unless evidence in this regard emerges. He further submits that there is nothing on record to show that the victim was burnt to death by this appellant because no material has been brought in support of the allegation. Unfortunately even the I.O. has not been examined who could have shed light from his investigation as to the nature of the incidence which might have emerged from material evidence gathered from the place of so called crime. If the victim would have been burnt intentionally there would be evidence of some inflammable material having been used and also may be struggle or evidence of self defence. But none of these circumstances are available to presume the guilt of this appellant. Even the postmortem report only indicates the degree of the burn and the reason for death. There are indications in some statements made by the neighbours that the victim caught fire during the cooking in the family and the appellant and others doused the fire and took her to the nearest available paramedic who expressed his inability to attend her in the given situation. The appellant therefore with the help of others had carried the deceased to Sadar Hospital where she died during the course of treatment. The Court is not very happy the way the investigation has been conducted or the evidence and material brought by the prosecution. There is nothing on record which can compel this Court to 4 decisively hold that it was a case of intentional burning of the victim by this appellant. Mere allegation may not be good enough to bring home the charge. This Court is aware of the provision under section 304B of the I.P.C. that there is some amount of presumption involved and there is a burden also upon the accused in matters of death within seven years of marriage. But two aspects which are glaring in this particular case is that there is no evidence of demand of dowry and that the evidence which has come during the course of trial does not bring home the guilt of the appellant beyond all reasonable doubts. Mere conjecture and surmises may not be good enough to hold the appellant guilty of the charge leveled against him. If the appellant had role in the so called crime he would not carry the victim to the hospital for treatment. His normal extinct would be to escape from the scene of crime. In view of the above circumstances this Court is of the opinion that the finding of the guilt recorded by the trial court cannot be sustained. The appeal is allowed and the order of conviction and sentence dated 21.7.2004 passed in Sessions Case No. 552 of 1996 T.R. No. 65 of 2002 is set aside. Let the appellant be released from custody forthwith, if not wanted in any other case. (Ajay Kumar Tripathi, J) PATNA HIGH COURT, PATNA DATED THE 9TH JULY, 2008 NAFR/RPS/SR.SECY.