1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.876 of 2006 - - - - Against the judgment of conviction and order of sentence dated 19.8.2006 passed by the Additional Sessions Judge, Fast Track Court No.2, Munger, in Sessions Trial No. 131 of 2004. - - - - Ajay Singh @ Ajay Kumar Singh, son of late Adya Singh, resident of Village Sondiha, Police Station Tarapur, District Munger .... .... Appellant Versus The State Of Bihar .... .... Respondent Appearance : For the Appellant : Shri Sanjeev Ranjan, Adv. For the Respondent : Shri Ajay Mishra, A.P.P. P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The appellant Ajay Singh alias Ajay Kumar Singh, the husband of the deceased Suman Devi, who happened to be the niece of the informant Bishundeo Singh, was tried by being charged of committing the offence under Section 304B of the Indian Penal Code by the learned Presiding Officer of Fast Track Court No.2, Munger, in Sessions Trial No.131 of 2004 and by judgment dated 19.8.2006 was held guilty of committing the said offence. After being heard on quantum of sentence the learned trial Judge directed the appellant to suffer rigorous imprisonment for ten years. The appellant appeals against the judgment of conviction and order of sentence. 2. Undisputedly, the appellant was married to the deceased Suman Devi. There is no specific date given either in the F.I.R. or in the evidence of the three witnesses, i.e., P.Ws. 8,9 and 10, as to on what date or in which year the marriage was solemnized. There has also been no whisper anywhere either in the evidence or in the F.I.R. that there was initially a 2 demand of dowry on the part of the appellant, but the prosecution alleged that they came to learn, subsequently, when the deceased used to visit their house that the present appellant was requiring her to bring a motorcycle from her parents and not getting the same, in spite of being promised by the informant and others to get the demanded motorcycle, the appellant and others of his family killed the deceased on 12.7.21002. They came to learn about the incident and saw the dead body lying at the Police Station and lodged the fardbveyan Ext. 1. 3. The case was investigated into and the appellant was put on trial which ended in the impugned judgment. 4. Arguing the appeal, it was contended by Shri Sanjeev Ranjan, learned counsel for the appellant that even accepting for the sake of argument that the prosecution had succeeded in establishing its case regarding demand by the appellant, there was complete absence of evidence indicating that not getting the demand fulfilled the lady was tortured and treated with cruelty in connection with the demand for that particular dowry and that was the reason of her death occurring under the circumstances not natural. It was further contended that it was still doubtful whether the appellant had ever demanded any motorcycle directly or indirectly through the deceased. In support of the contention, the evidence of the three prosecution witnesses was referred to by him.. 5. The learned Additional Public Prosecutor has urged that the evidence of P.Ws. 8, 9 and 10 was sufficient to indicate that the motorcycle was being demanded and the demand was placed on multiple occasions and not getting the motorcycle, the lady was either killed or compelled to kill herself under circumstance not natural. It was contended, 3 as such, that the judgment of conviction was justifiably passed under proper evidence of the witnesses. 6. In case of death of a woman occurring either by some one compelling her to kill herself or occurs under the circumstances not natural within seven years of her marriage of the lady and if the prosecution succeeds in showing that before her death the lady was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with any demand for dowry, the whole transaction shall constitute the offence of dowry death which has been made punishable under Section 304B of the Penal Code. Thus, what the prosecution has to prove is that the death was within seven years of the marriage and that appears occurring under the circumstance unnatural. It has further to be established by the prosecution that the lady prior to her death was subjected to cruelty or harassment either by her husband or by any of his family members or by both in connection with demand for dowry not being fulfilled. If any of the above ingredients appear not established by the evidence then in that case the offence could not be said to be constituted and the benefit of doubt could accrue to the accused. 7. Here in the present case, the three witnesses, i.e., the parents of the deceased who have been examined as P.Ws. 8 and 9 and her uncle, the informant P.W. 10 have stated that the demand for a motorcycle was being made by the appellant. There is absence of evidence that the demand was directly made by the present appellant as regards the evidence of three witnesses. What they have stated is that when the deceased Suman Devi came to their house she related the previous demand of the appellant asking for the motorcycle. When the evidence of P.Ws. 8, 9 and 10 is 4 tested in the light of their own evidence or evidence of any of the three , then it could be found that it could be highly unsafe to accept the story of demand of motorcycle by the appellant. I have already indicated that the witnesses have not stated that it was the present appellant who had placed a direct demand for motorcycle before any of the three witnesses, it was through the deceased as per the P.Ws.that the demand was raised by the three prosecution witnesses. In order to making the above evidence probable, the witnesses stated that the deceased came all alone from her matrimonial house to her parents’ house and there were three consecutive visits of the appellant to her parents house. P.W. 9 in paragraph 9 has stated that when the deceased had come on two occasions, this appellant himself accompanied her to her father’s house and no demand was placed by the appellant before PW. 9. P.W. 10 has stated in the fardbeyan that he himself had gone for rukhshat of the deceased in 2002 when the deceased had told him that the demand of motorcycle was being made by the appellant and he had promised that he would arrange for money and meet the demand of the appellant. But, when his evidence in paragraph 6 is scrutinized, his evidence becomes doubtful. He has admitted in paragraph 6 that the demand was made by the appellant when the deceased had come to the parents’ house second time but in the same paragraph he has also stated that the deceased was accompanied by the present appellant on the 3rd occasion she had come to her parents house. Now, as regards the evidences of P.Ws. 8 and 9, they have stated that the appellant had accompanied the deceased on all three occasions when she had visited them. Thus, the probability was more in favour of the fact that the appellant was accompanying his wife, i.e., the deceased on all occasions 5 she was visiting her parents house. As such, the evidence of P.W. 10 that the appellant had made the demand of motorcycle when the deceased had come on the second occasion to her parents house becomes doubtful. This is the reason that the learned counsel for the appellant was strenuously arguing that the prosecution appears not establishing its case, even that part of the story that the appellant had demanded any motorcycle, to the hilt. 8. I have already indicated by making reference to P.Ws. 8, 9 and 10, that they might have stated in their evidence that the deceased had related to them the demand of motorcycle by the appellant. But, none of the witnesses has stated anywhere that the deceased had complained to them that this appellant and his family members had harassed and tortured her with cruelty in the manner alleged. Thus, I find that as regards the evidence on treating the deceased with cruelty or harassing her, it appears completely absent from the depositions of the three witnesses who came to support the prosecution charge. If the demand of dowry was not established and the subsequent act of harassment of the deceased or treating her with cruelty was not being supported by the three witnesses, then the two of the ingredients out of four constituting the offence was not constituted by the evidence and, as such, the whole charge of committing dowry death against the appellant is rendered doubtful. 9. On account of the above, this Court finds that the judgment of conviction and order of sentence passed against the appellant are not sustainable in law on account of the charge not being proved to the hilt and the appellant was entitled to benefit of doubt and that benefit is hereby 6 extended to him by allowing this appeal and setting aside the judgment of conviction and order of sentence and acquitting the appellant. 10. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. ( Dharniddhar Jha,J.) Patna High Court The 15th July,2011 Kanth/N.A.F.R.