Criminal Appeal (SJ) No.315 of 1999 **** Against the judgment, dated 05.10.1999, passed by Sri Rama Shankar Singh Yadav, Additional Sessions Judge, III, Nalanda at Biharsharif, in S. Tr. No. 61 of 1998/4 of 1998 (Bihar P.S. Case No. 370 of 1997) **** Allauddin @ Salauddin, son of Mohd. Habib, resident of Mohalla Mahalpar, P.S. Bihar, district Nalanda .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. Ranbir Singh, Adv. Amicus Curiae For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the petitioner and the State. 2. The appellant has been convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and has, further, been convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for three years with a fine of Rs.500/- and in default of payment of fine to undergo for six months. However, it has been ordered that both the sentences shall run concurrently. 2 3. The prosecution case as alleged in the fardbeyan of Mr. Israil (P.W. 4) that his sister Halima Khatoon was married with Allauddin @ Salauddin about four years back and was blessed with two daughters and was residing in the house of one Murtaza Ali on rent along with her husband. It has, further, been alleged that her husband, Allaluddin @ Salauddin, always used to demand from his sister and the demand of cycle was fulfilled by him, thereafter, he demanded Rs.20,000/- and sent the victim-deceased with the demand of Rs.20,000/- on the pretext of doing business, but, the informant though the brother of the victim-deceased could not fulfill the demand due to his inability. It has, further, been alleged that Salauddin always used to subject her cruelty by assault so that she may flee away. However, in the morning he learnt about the welfare of the victim- deceased and when he went to see her sister then he found her dead, Salauddin has done to death her by administering poison in the pretext of next marriage. It is alleged that the victim consumed sulphas tablets, which was also recovered in plastic polythene packet. On the fardbeyan of the informant, the case lodged and after investigation the charge sheet submitted, cognizance taken and the case committed to the Court of sessions where the charge was framed. 4. During the trial seven witnesses were examined, who were P.W. 1, Md. Hanif Mansoori, P.W. 2, Raushan Ara, P.W. 3, Md. Ahmad Hussain, P.W. 4, Md. Israil, the informant, P.W. 5, Dr. Raj Kumar Prasad, P.W. 6, Rajeshwar Sharma, and P.W. 7 Md. Ekdam. The documentary evidence adduced are Exhibit 1, the signature of 3 Ahmad Hussain on seizure list, Exhibit 2 is the signature of Md. Israil, the informant, on the fardbeyan, Exhibit 3 is the post mortem report, Exhibit 4 is the fardbeyan, Exhibit 4/1 is endorsement on the fardbeyan, Exhibit 4/2 is signature of Shyam Lal, the then Officer-in- Charge, Biharsharif Police Station, Exhibit 5 is the inquest report and Exhibit 1/1 is seizure list. 5. The trial Court taking into consideration the evidence of P.Ws. 1, 2, 3, and 4 having supported the prosecution case about the marriage of informant’s sister, which was solemnized within seven years of the occurrence and there was demand and subjecting to cruelty for non-fulfillment of the demand and, further, taking into consideration the evidence of P.Ws. 2 and 7 that the victim’s husband has given her poison before death and taking this evidence admissible under Section 32 of the Evidence Act as well as the evidence of the doctor that the death has been resulted in suspicious circumstance held that ingredient of dowry death under Section 304B of the Indian Penal Code having been established and, hence, presumption under Section 113B of the Penal Code is attracted for the prosecution for conviction under Section 304B of the Penal Code, hence, convicted the appellant and sentenced, as mentioned above. 6. The learned counsel for the appellant, appearing as amicus curiae, has submitted that viscera report has not been proved and it has not been established that the death is by poison and the demand of Rs. 20,000/-alleged to have been made for business is not dowry demand and, hence, the offence under Section 304B of the 4 Penal Code is not made out. It has, further, been contended that a lenient view may be taken in view of the fact that the appellant is the father of two daughters. 7. The learned counsel for the State, however, contended that the ingredients for the offence under Section 304B of the Penal Code has been made out and established and three ingredients that marriage solemnized within seven years, there is allegation of subjecting cruelty for non-fulfillment of the demand and death is in suspicious circumstances as per the evidence of the witnesses. P.W. 2 lives in adjoining room of the appellant as a tenant of the same land lord to which the victim-deceased was residing, who has deposed that prior to the death, the deceased had cried that her husband has given her poison. P.W. 3 has deposed that the accused used to demand dowry and torture his wife for non-fulfillment of the demand and the doctor found the face and nails of the deceased having been turned blue colour and, hence, the death is in suspicious circumstance and three ingredients having established a presumption under Section 113B of the Penal Code has rightly been considered. 8. However, taking into consideration the respective submissions question for consideration whether P.W. 4 is the informant and the brother of the victim-deceased and has supported the prosecution case that the marriage was solemnized in 1994 and had deposed that the appellant used to demand Rs. 20,000/- and used to subject her sister to cruelty for non-fulfillment of the demand and used to assault and threw her out. Md. Ekdam, P.W. 7, was a tenant 5 and use to live in the house in which the victim-deceased was residing on rent as tenant on the date of occurrence. He disclosed that Halima Khatoon has been done to death by administering sulphas by Salauddin. He stated that he got up on the cry of Halima and the proceeded to the victim, Halima, who was crying that she has been administered poison and her entire body is shivering on which Alauddin disclosed that he has given her medicine. However, P.W. 7, has deposed that he found the smell of sulphas and was taken to the doctor. P.W. 2 has also come to support the prosecution case, she is also a tenant of the house of Murtaza Ali in which the victim was also residing as tenant. He has stated that on the court yard of Halima, she has been administered poison by her husband. P.W. 3 has also stated that on hulla she went there and heard the hulla that Alauddin has killed his wife by poisoning and found the dead body there. She has proved her signature on the inquest report. The inquest report also mentions that the face had become black and the cause of death has been shown to be turned blue by poisoning. P.W. 5 is the doctor who conducted the post mortem examination on 10.09.1997 at 12.50 p.m. and found the rigour mortis present in all the four limbs, no external injury was present on her body. Nails, lips and face were turned blue. On dissection of abdomen stomach contain one ounce of whitish fluid mucus was congested and after giving the dissection of chest and opined that the death occurred due to poison. The viscera were preserved. However, the viscera report has not been produced. The learned counsel for the appellant that in absence of chemical report it 6 can not be said that what type of poison has been administered to the deceased, hence, from the evidence of the witnesses it is apparent that the deceased was done to death and the doctor has also found that the death is by poisoning. It is true that the viscera report has not been brought on record even then having regard to the evidence and taking into consideration the facts and circumstances, it is apparent that the death of the deceased is in suspicious circumstances, as per the evidence of P.Ws. 2 and 7 that the deceased was crying that her husband has poisoned her and, thereafter, she was taken to doctor who refused to entertain and then the inquest report suggests that the body of the deceased has become blackened. P.W. 5, the doctor found nails and lips turn blue and opined that death occurred due to poisoning, hence, under the facts and circumstances it is apparent that the death of the victim is in suspicious circumstances. 9. Hence, taking into consideration the entire evidence that there is evidence that the marriage solemnized within seven years, the victim was subjected to cruelty for non-fulfillment of the demand assaulted her and threw her out and there is demand of Rs.20,000/-. 10. Hence, the argument advanced by the learned amicus curiae that since there was no viscera report and, hence, no definite facts of death has been ascertained. However, having regard to the fact that the evidence in this case, P.Ws. 2, 3 and 7 have supported the prosecution case about the cry of the victim and her disclosure about poisoning her coupled with the evidence and the evidence of the 7 doctor and P.Ws. it is apparent that the death is in suspicious circumstances and merely because viscera report has not been brought on record the prosecution case can not be disbelieved or creates any doubt about the death in suspicious circumstance, it is asserted that the demand had been made for business it is not a dowry demand. Having regard to the evidence that the victim was subjected to cruelty for non-fulfillment of the said demand of Rs. 20,000/- in the garb of business does not absolve the appellant and can well be inferred as demand of dowry for which the victim was subjected to cruelty. 11. I find and hold that the prosecution has been able to prove the three ingredients for offence under Section 304B of the Penal Code on which the inference can be drawn under Section 113B of the Penal Code, the prosecution has been able to prove the charges beyond reasonable doubt, hence, I do not find any merit in this appeal. 12. The appeal is, accordingly, dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 15th day of November, 2011, N.A.F.R., S.A.