CRIMINAL APPEAL (DB) No.147 OF 2010 WITH CRIMINAL APPEAL (DB) No. 124 OF 2010 ***** Against the judgment of conviction and order of Sentence dated 16th of January, 2010 passed by Shri Om Prakash Rai, Additional Sessions Judge, Fast Track Court, II, Supaul in Sessions Trial No. 191 of 2007 & 164 of 2008. RAM NARAIN SAH …………………………..S/O- Late Saryug Sah. Resident of Village-Chikni, P.S. –Kishanpur, District- Supaul. (In Cr. APP (DB) No. 147 of 2010) SATYA NARAIN SAH………………………….S/O- Late Saryug Sah. Resident of Village-Chikni, P.S. –Kishanpur, District- Supaul. (In Cr. APP (DB) No. 124 of 2010) ---------------------------------------------(Appellants) Versus THE STATE OF BIHAR --------------------------------------------(Respondents) For the Appellants : Mr. Amarnath Jha, Advocate (in both the appeals) For the State : Mr. Ashwini Kr. Singh, APP ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** S.K. Sharma & A.Chandra J.J. When on 25.03.2010, Cr. APP (DB) No. 147 of 2010 was listed then it came to the notice that another accused/co-convict has prayed for bail through Cr. App (DB) No. 124 of 2010 which has already admitted for hearing and the lower court record has been called for which has already been received. The connected record of Cr. App (DB) No. 2 124 of 2010 was ordered to be placed under the heading “To Be Mentioned” and it has accordingly been listed today. There was an order on 25.03.2010 in Cr. App (DB) No. 147 of 2010 that both the appeals should be heard together and, if possible, the effort should be made to dispose of the cases. Learned Counsel for the appellants as well as the learned Counsel for the State have been heard at length and both the appeals are being disposed of by this common judgment. 1. Both the appellants were tried together in Sessions Trial Case No. 191/2007 & 164 of 2008 and they were found guilty by the learned Additional Sessions Judge, Fast Track Court, II, Supaul dated 16.01.2010 under Sections 304(B)/201/34 of the Indian Penal Code and 4 of the Dowry Prohibition Act. Accordingly, they were convicted and sentenced to undergo both imprisonment for life for the offence under Sections 304(B)/34 of the Indian Penal Code and also rigorous imprisonment for three years along with a fine of rupees two thousand each for the offence under Section 201/34 of the Indian Penal Code. The appellants were also convicted and sentenced to undergo rigorous imprisonment of two years and a fine of rupees two thousand each for the offence under Section 4 of the Dowry 3 Prohibition Act. In default of payment of fine under Section 201/34 of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act, the accused persons are further sentenced to serve four months rigorous imprisonment for each fine separately. The sentences were to run concurrently. 2. Fardbeyan, dated 05.02.2007 of the informant namely, Asharfi Sah resulted in Kisanpur P.S. Case No. 13 of 2007. In the fardbeyan the informant alleged that his sister Sulekha Devi was married with Ram Narain Sah about 3 ½ years prior to the occurrence. She went to the house of her husband. Thereafter, the accused persons namely, the appellants started pressing her for demand of 10 Kathhas of land by way of additional dowry. When the desired additional dowry was not fulfilled it resulted into killing of the informant’s sister Sulekha Devi. The informant was informed after dead body was disposed of. The informant made a search and during the search he got message that a dead body was lying on the sand of Koshi river. For confirmation, he went there and found the dead body of his sister. After investigation, I.O. submitted two charge sheet for the offence under Sections 304(B)/201/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, separately, 4 against the accused Ram Narain Sah and Satya Narain Sah. Cognizance was taken and case was committed to the court of sessions where charges were framed and explained to the accused persons they pleaded innocent and they prefer to face the trial. 3. The defence of the appellants was of false implication and also that the case was lodged on account of some confusion. It was a natural death for which the appellants were not responsible. The demand of dowry and torture has also been denied. 4. In support of its case, the prosecution has examined P.W. 1-Dr. Jawaher Khan, P.W. 2- Ramanand Yadav, P.W. 3- Rina Devi, P.W. 4- Indra Narain Yadav, P.W. 5- Asharfi Sah, P.W. 6- Ram Chandra Sah, P.W. 7- Saraswati Devi, P.W. 8- Sita Devi and P.W. 9- Satya Narain Singh who is the I.O. of the case. The post-mortem report of the deceased has been marked as Ext. 1, Signature of Indra Narain Yadav on fardbeyan has been marked as Ext. 2, Signature of informant on fardbeyan has been marked as Ext. 2/A and Ext. 3 is the fardbeyan along with the endorsement on it. 5. The defence has also examined four witnesses namely D.W. 1- Shyam Narain Yadav, D.W. 2- Badri Yadav, D.W. 3- Jagar Nath Kumar Sah @ Jagar Nath Sah and D.W. 4- Ram Dhani Sharma. Identity Card and 5 a certificate with regard to alibi has been filed, which has been marked as Ext A & B. 6. The trial court after taking into consideration all the evidence on record found the appellants guilty and they have been convicted and sentenced as noted above. 7. This court has to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 8. The P.W. 1- is the doctor who has conducted the post-mortem examination over the dead body of the deceased and has found one ligature mark over the neck but the ligature mark was not found so distinct on posterior surface of neck. That was the only ante-mortem suspected injury. 9. P.Ws. 2, 3, 4, 6 and 7 have not supported any part of the allegations and they were declared hostile. P.W. 5 is the informant. He has stated that he got information two and half years earlier that his sister has died. Thereafter, he went to her house but she was not there. A search was made and there the informant came to know that his sister has escaped from the house. He made search but the efforts resulted nothing. Ultimately dead body of his sister was found lying on the sand of 6 Koshi River. Initially, he has stated that the appellants were demanded 10 Kathhas of land which was not given but in his cross-examination he has stated that nobody has raised any demand directly before him. He has also stated that he was not able to remember the name of the persons who told that the accused persons were raising demand. He further stated that prior to the occurrence there was no dispute of the accused/appellant with the informant’s sister. His further evidence was that in course of search the informant came to know that the accused persons were not involved behind the occurrence. 10. It appears that the trial court has relied upon only on the sole witness P.W. 5 who in his examination-in-chief also has not supported the prosecution case. This witness in cross-examination has denied that any sort of torture was made to his sister. Nowhere he stated that demand of any land was made in additional dowry. 11. It is futile to discuss the evidences of other witnesses because none have supported any part of the prosecution version regarding demand or torture. 12. No doubt, there are certain presumptions for offence under Section 304(B) of the Indian Penal 7 Code but the presumptions can only be taken into consideration when the prosecution prima facie establishes that prior to the death the victim was being subjected to torture and the death was within seven years of the marriage and it was other than in normal circumstances. Another ingredient for presumption is that the prosecution must prove that “soon before marriage” the victim was being tortured in connection with dowry related demands. 13. In the present case, none of the ingredients upon which the prosecution can rely have been brought on the record and what to speak on “soon before marriage”. There is no evidence that any demand was being made by any of the accused during the subsistence of the marriage. 14. After analyzing the entire evidence on record and after hearing the learned Counsel for the appellants as well as the State it appears that there is no evidence at all in the case and it would be futile to keep the appeals pending. 15. In the result both the appeals are allowed and judgment of the conviction and sentence is set aside. The appellants are acquitted of the charges. The appellant namely Satya Narain Sah of Cr. App (DB) No. 124 of 2010 is discharged from the liability of bail bond. The appellant namely Ram 8 Narain Sah of Cr. App (DB) No. 147 of 2010, who is reported to be in custody, is directed to be released forthwith if not wanted in any other case. Patna High Court, Patna Dated 26th March, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)