Criminal Appeal (SJ) No.404 of 1998 Against the judgment and order of conviction dated 25. 09. 1998 and order of sentence dated 26. 09. 1998 passed Shri Bidhu Bhushan Pathak, 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 383 of 1997/416 of 1997. 1. Karamdeo Prasad Chaurasia, son of Sri Bhuneshwar Prasad Chaurasia. 2. Dhaneshwari Devi, wife of Sri Bhuneshwar Prasad Chaurasia. Both resident of Village- Lakhdihara, Police Station Obra, District- Aurangabad. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellant/s : Md. Gayasuddin Khan, Advocate. Mr. Irshad Ahmad Khan For the Respondent State : Mrs. Rina Sinha, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 304 B of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted for offence under Section 201 of Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. 3. The prosecution case as alleged by the informant that marriage of his sister Radhika Devi was 2 solemnised in the year 1990 with Brahamdeo Pd. Chaurasia, son of Bhuneshwar Pd. Chaurasia. She was subjected to cruelty during stay at Sasural and always attempt was made for compromise. It is also alleged that sometimes demand of Rs. 5,000/- for hand pipe and sometimes demand of money for construction of the house was made. It is further alleged that Brahamdeo Pd. Chaurasia has also sent letter for demand after marriage in which threaten for fulfillment of demand was made. Being vexed, the victim came to her Maika and lastly the sister of the informant was sent on 12. 06. 1996 and brother of the informant was remained there, though, the victim was not willing to live there and asked on 13. 06. 1996, to take her, but the accused persons did not allow and she was done to death on 13. 06. 1996 and inforned the informant on 14. 06. 1996 at Rahhara in Palamau. 4. On the basis of Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted. During trial three witnesses were examined. P.W. 1, Satender Prasad, the informant, P.W. 2, Binod Kumar and P.W. 3, Rajender Prasad. The appellants also adduced documentary evidence proved by ext. 1/B, signature on 3 written report and Ext. 2 is the formal F.I.R. The defence has also adduced both oral and documentary evidence D.W. 1 Bedi Singh and D.W. 2, Dinesh Kumar and Ext. A is paper of partition. 5. The defence of the accused persons submits that victim died out of diarrhoea and there is partition amongst brother of the husband of the deceased and it is asserted that marriage was solemnised more than nine years prior to the occurrence. 6. On considering both oral and documentary evidence, the trial court convicted the appellants holding that appellants who are brother-in-law and mother-in-law has played part role in the alleged occurrence and there is ample evidence to suggest that victim was subjected to cruelty within seven years of her marriage and the accused persons has concealed the evidence of burn ashes and hence, under Sections 304 B, 201 and 498A I.P.C. is proved. 7. Learned counsel for the appellants, however contends that ingredients under Section 304 B has not been established that victim was subject to cruelty for non-fulfillment of demand of dowry has also not been established by clear cogent and reliable reliance. 4 Appellants are brother-in-law and mother-in-law. It is asserted that when ingredient of Section 304 B I.P.C. has not been established, the question for presumption under Section 113 B of Evidence Act does not arise. Moreover, the death as stated to be by diarrhoea. 8. Hence, on the respective submissions, question for consideration whether the marriage was solemnised within seven years and death in suspicious circumstance and whether the victim was subjected to cruelty for non-fulfillment of demand of dowry. 9. So far, marriage is concerned P.W. 1 has stated that marriage was solemnised in the year 1990. However, P.W. 2 has stated nothing about marriage and D.W. 2 has stated that marriage was solemnised about 8- 9 years prior to death out of diarrhoea. However, no medical evidence has been brought in existence to suggest that death caused by diarrhoea nor any date of marriage has been mentioned. P.W. 1 is brother of the deceased has, though, not specifically stated the date of marriage, but the evidence of brother that marriage solemnised in 1990 has not been challenged by the defence. Hence had marriage held to have been solemnised in 1990 and the occurrence alleged in the 5 year 1996. Hence occurrence within seven years. 10. However, it has come in evidence that after death, he was informed on 14. 06. 1996 that death has been occurred on 13. 06. 1996 and Karamdeo Pd. Chaurasia gave information about death by diarrhoea and dead body was disposed of. P.W. 3 has also found that dead body was disposed of without information to prosecution party. 11. However, appellants are mother-in-law and brother-in-law of the deceased and it is alleged that sister of the informant was subjected to cruelty. However, evidence of P.W. 1 regarding demand is omnibus and demand is said to be made Rs. 5,000/- for hand pipe and for 12 ton coal for making bricks was demanded. However, demand of 12 ton of coal is alleged to be made by Brahamdeo Pd. Chaurasia, from P.W.1, his father and wife of P.W.1, but there is no specific allegation about demand of these appellants who are brother-in-law and mother-in-law of the victim. P.W.1 has stated in his evidence that Karamdeo Pd. Chaurasia that he informed him on 14. 06. 1996, after death of the victim on 13. 06. 1996 that victim is dead. Hence from evidence of P.W. 1, it is apparent that demand and subjecting cruelty 6 against the appellants are vague. Moreover the demand for hand pipe and 12 ton coal for brick cannot be held to be demand of dowry. 12. P.W. 2 Binod Kumar is cousin brother of the informant (phupera). However, he has stated in his evidence that he was asked by wife of Satender to go for Bidai of Radhika, then he went on 12. 06. 1996 and stayed there, but the husband, Bhasur and mother-in-law of Radhika said they will not send Radhika till the demand is fulfilled, then Radhika told him that take her from here otherwise they will not leave her alive. However, in his cross-examination has stated that he went to the house of his Bhabhi then Bhabhi disclosed about subjecting cruelty with Radhika and sent him to Lakhdihara. He has further stated in his cross- examination that for the first time he knew about subjecting cruelty on Radhika for dowry from his Bhabhi and then he get knowledge when he was sent to Lakhdihara by his Bhabhi. Hence stated that he learnt when he went Lakhdihara on 12. 06. 1996. 13. Hence, evidence about subjected to cruelty for demand of dowry hit by hearsay as he learnt from his Bhabhi, Bhabhi has not come to depose in the case and 7 his evidence that he went to Lakhdihara on 12. 06. 1996 and returned on 13. 06. 1996, does not inspire confidence. 14. The evidence against these appellants who are mother-in-law and brother-in-law are quite vague regarding demand and subjecting cruelty for non- fulfillment of demand and hence, in the absence of clear evidence regarding subjecting to cruelty for demand of dowry itself not proper to convict and hence the appellants are entitle to benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt against these appellants. 15. Hence, order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 24th…August, 2011. NAFR/m.p. ( Gopal Prasad, J.)