CRIMINAL APPEAL No.81 OF 1998 (S.J.) With CRIMINAL APPEAL No.296 OF 1998 (S.J.) **** Against the judgment, dated 21.02.1998, passed by Sri District Education Officer Narayan Barsi, Additional Sessions Judge, I, Bhagalpur, in Sessions Case No. 553 of 1995/Tr. No. 138 of 1995 **** 1. SHAKUNTALA DEVI, wife of Girish Das 2. KAVITA DEVI, wife of Fani Bhushan Das 3. GIRISH DAS, son of late Chhote Lal Das 4. FANI BHUSHAN DAS, son of Girish Das All residents of Mohalla Purani Durga Asthan, P.S. Sultanganj, district Bhagalpur .. Appellants [in Cr. Appeal No.81/98 (S.J.)] MANI BHUSHAN DAS, son of Sri Girish Das, resident of Purani Durga Asthan, Gali No. 2, P.S. Sultanganj, district Bhagalpur .. Appellant [in Cr. Appeal No.296/98(S.J.)] Versus THE STATE OF BIHAR .. Respondent (in both the appeals) **** For the appellants .. M/S Krishna Mohan & Praveen Kumar, Advs. For the respondent .. Mr. S.N. Prasad, A.P.P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants have been convicted for offences under Section 304B of the Indian Penal Code and sentenced to rigorous imprisonment for seven years as also under Section 498A and sentenced to rigorous imprisonment for two years even though they have been convicted 2 under Section 120B of the Indian Penal Code and no separate sentence was passed, in this regard. 2. The prosecution case is that the appellant, Mani Bhushan Das, was married with Pushpa Devi, the sister of the informant on 15.06.1989, but, tortured thereafter for ends of dowry. On 09.09.1994 the informant learnt that his sister was done to death so he came to the village of the appellants and after enquiry instituted the present case on 11.09.1994 for which the appellants were after investigation charge sheeted and put on trial. 3. The prosecution to prove it’s case, examined eleven witnesses out of whom P.W. 1, Banarsi Das, is the father of the informant as well as the deceased, P.W. 2, Khagesh Das, is the uncle of the informant and the deceased, P.W. 3, Kalpana Devi, is the wife of the informant as well as sister-in-law of the deceased, P.W. 4, Subhash Das, is the hear-say witness and P.W. 5, Sant Sharan Das, is the informant himself. P.Ws. 6, 7 and 8, Manohar Das, Birendra Kumar and Navin Kumar Kushwaha, who are independent witnesses, have been declared hostile whereas P.W. 9, Dr. Nagendra Narayan Bhagat, is the doctor who conducted the post mortem examination. P.W. 10, Jairam Singh, is the Assistant Sub Inspector of Police, and P.W. 11, Prem Chand Ram, Sub Inspector of Police, is the investigating officer. 4. From the evidence of P.W. 1, in cross examination, it is revealed that the deceased in her five years’ of married life 3 did not make any complaint to him and there was a golta marriage since the sister of the appellant was married to the informant. P.W. 2, Khagesh Das, the uncle of the informant, has also admitted that no demand of any money had ever been made by the accused persons. P.W. 3, the wife of the informant, has also in paragraph 5 said that there was no demand or any talk of dowry at the time of marriage. P.W. 4, Subhash Das, an independent witness, has stated that he learnt that Pushpa Devi, the deceased, has died after consuming poison and he himself had gone to inform the informant about the same and did not support the case of prosecution in any aspect. He further stated that the son of the deceased, aged about 5 to 7 years, had, in fact, conducted the last rites of the deceased. P.W. 5, the informant, himself has not supported the case of the prosecution and has been declared hostile. The doctor, P.W. 9, has, however, found ante mortem injuries on the person of the deceased, which is contrary to the case of the prosecution inasmuch as the informant had initially alleged that the deceased has been poisoned to death. P.W. 11, the investigating officer, has admitted in his evidence that initially a U.D. case for the same occurrence had been instituted. However for a conviction under Section 304B of the Indian Penal Code the essential requirement of law is that (i) death must be unnatural, (ii) within seven years of marriage, (iii) and soon before her death demands for dowry should have been made, (iv) death should have been for ends of dowry. From the appraisal of the evidence of the prosecution witnesses the essential ingredient required for conviction under Section 304B 4 of the Indian Penal Code is missing inasmuch as the motive for the occurrence is later alleged to be illicit relationship between the husband of the deceased with his sister-in-law and also in view of the specific statement that no demand of dowry was made, the present case would not come within the purview of Section 304B of the Indian Penal Code. In view of the fact that no alternative charge had been framed against the accused persons at this stage, it is difficult to go into alternative theory of the occurrence nor is this Court permitted to create a third story with regard to the prosecution case merely for the reason of relationship and a probable unnatural death. 5. The defence, in the present case discharging it’s onus as required under Section 304B of the Indian Penal Code and 113 of the Evidence Act, examined four defence witnesses bringing on record the fact that the deceased had not been killed for the ends of dowry and her unfortunate death was otherwise. Under the circumstances, on full consideration of the prosecution case as it stands the following facts emerge. (a) The death of the deceased, Pushpa Devi had taken place about five years after the marriage. (b) The prosecution witnesses themselves did not support the case for demand of dowry. (c) The informant himself did not support the case of the prosecution. (d) There is no alternative charge against the accused persons. 6. Under the circumstances, considering the above, 5 this Court has no option, but, to acquit the present appellants of the charges. 7. In the result, these appeals are allowed and the conviction and the sentence are set aside and the appellants are discharged of the liabilities of their bail bonds. (Anjana Prakash, J.) The Patna High Court The 06th day of October, 2009 N.A.F.R./S.A.