CRIMINAL APPEAL No. 578 OF 2006 (Against the Judgment of conviction and sentence dated 13.06.2006 of the Addl. Sessions Judge, F.T.C. IV, Katihar passed in Sessions Trial No. 157 of 2003/190 of 2004) 1. AMARJIT SINGH @ AWADHESH SINGH, 2. CHHOTU @ PRITAM SINGH @ CHHOTU SINGH, Both sons of Thithar Singh @ Ram Singh, r/o. Village- Sadalpur, P.S. Rautra, Distt. Katihar. -------------------------(Appellant) Versus THE STATE OF BIHAR------------------------------------(Respondents) ------------- P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD Coursel for the Appellants: Mr. Rajiv Ray, ................ Advocate. Mr. Bidhanesh Mishra,.....Advocate, Mrs. Tanuja Mishra, .......Advocate, Mr. Rajendra Jha, ............Advocate, Counsel for the Informant: Mr. Rajendra Prasad Sah, Advocate. Mr. Ajay Kumar Verma, ...Advocate. Counsel for the State: Mr. S.N. Prasad, ............. Addl. P.P. C.M. Prasad, J. This appeal is against the judgment dated 13.06.2006 of the Addl. Sessions Judge, F.T.C. No. IV, Katihar passed in Sessions Trial No.157 of 2003/190 of 2004, whereby the two appellants have been convicted under Sections 304B and 328 of the I.P.C. and respectively sentenced to undergo R.I. for ten years, R.I. for ten years and fine of Rs.500/-, in default of payment of fine to undergo S.I. for three months. 2. It has to be mentioned that besides the two appellants the F.I.R. was also lodged against Ratan Kaur, the mother-in-law of the deceased but she remained absconding, therefore, only these two 2 appellants were put on trial. Appellant Amarjit Singh @ Awadesh Singh is the husband of the deceased Sukhmini kaur. Appellant Chhotu @ Pritam Singh @ Chhotu Singh is the younger brother of Amarjit Singh. 3. The place of occurrence as revealed in the F.I.R. is the matrimonial house of the deceased in village Sadalpur situated at a distance of 3 Kms. west of Rohtara P.S. within the district of Katihar. The date of occurrence is 15.08.2001 at 7.00 p.m. The informant Sardar Sanjeet Singh (P.W.3) is the elder brother of the deceased. The fardbeyan was recorded by P.W.8, S.I. M.P. Gupta on the statement of the informant at the Sasural House (matrimonial house) of the deceased on 16.08.2001 at 11.00 a.m. On the basis of the fardbeyan, the F.I.R. was registered on 17.08.2001 at 9.00 a.m. at Rohtara P.S. 4. As to the documents proved in the case, Ext-1 is the letter dated 07.12.1997 send by the deceased to her father mentioning about the torture and harassment caused to her at the hands of the husband and the mother-in-law. Ext-2 is the compromise bond entered into between the parties in the year 1998 in Complaint Case No. C.A. 68 of 1998 under Section 498A I.P.C., which had been filed by the deceased against the husband and other in-laws. Ext- 3 3 is the fardbeyan, Ext-3/1, 3/2 and 3/3 are the signatures of the witnesses on the compromise bond. Ext-4/1 is the inquest report of the dead body of the deceased. Ext-5 is the post mortem report of the deceased. Ext-6 is the signature of the Director of the F.S.L., Muzaffarpur. Regarding the chemical examination of the viscera of the deceased, the F.S.L. report mentions that Aluminium Phosphide was detected in the dark brown fluid i.e. the Viscera and that Aluminium Phosphide commonly known as “CELPHOS” is a severe gastro intestinal irritant and that it is used as grains preservative and is highly poisonous. The defence proved Ext-A which is the certified copy of complaint No. 68 of 1998 as filed by the deceased/complainant in Complaint Case No. C.A. 68 of 1998. The date of marriage of the deceased with the appellant Amarjit Singh has been specifically mentioned as 22nd June 1994 in the complaint petition. 5. The prosecution case as stated in the fardbeyan by the informant (P.W.3) recorded on 16.08.2001 at 11.00 a.m. at the door of appellant Amarjit Singh was that his sister Sukhmini Kaur was married to appellant Amarjit Singh (appellant) six years ago. She got two issues, who were aged 3 years 4 and one month. The informant further stated that after marriage she was being pressurized for bringing Rs.25,000/- and articles from her parents and she was threatened that she will be ousted from her Sasural or killed by poisoning if the demand was not fulfilled. In the meantime, on 13.01.1998 his sister (deceased) was ousted from her matrimonial house then Complaint Case No. 68 of 1998 was lodged on 28.01.1998 but the case was compromised and the Sasural people assured not to harass her further and thereafter they took her to the matrimonial house. It was on that date i.e. 16.08.2001 at 4.00 p.m. that his relative Virendra Singh (P.W.5, informant‟s Mausera brother) informed on telephone that on 15.08.2010 at 5.00 p.m. the Sasural people had poisoned his sister (deceased) to death. Then he (informant) went there and he found her in dead condition. He claimed that Sardar Amarjit Singh (appellant/husband), Chhotu @ Pritam Singh (Debar) and Ratan Kaur (mother-in-law) killed his sister (deceased) by assaulting and poisoning for dowry. 6. As many as ten witnesses were examined by prosecution. Four defence witnesses were also examined by the accused/appellants. P.W.1 Sardar Kishan Singh is the father of the deceased. P.W. 2, 5 Sardar Madan Singh is the Mausa of the deceased. P.W.3, Sardar Sanjeet Singh, the elder brother of the deceased is the informant. P.W.4 Sardar Shailendra is the younger brother of the deceased. P.W.5 Birendra Singh is the Mausera brother of the deceased. P.W.6 Sukhdeo Singh has turn hostile to the prosecution. P.W.7 Dr. Arun Kumar Choudhary had conducted post mortem examination of the deceased. P.W.8 Mahesh Prasad Gupta is the Investigating Officer. P.W.9 Surendra Kumar Saroj, who had registered the F.I.R., is the Officer-in-Charge of the concerned P.S. P.W.10 Md. Ayub is the Technician of the RFSL Muzaffarpur, who proved the writings and signatures of the Director on the F.S.L. report marked as Ext-6. The four defence witnesses namely, D.W.1 Ramu Choudhary, D.W.2 Budhi Risi, D.W.3 Sardar Sewa Singh, and D.W.4 Tala Hembrum were examined to prove the date of the marriage of the deceased as 22.06.1994 vide Ext-A. The defence witnesses also tried to say about the defence version that any torture or harassment was not caused to the deceased at the hands of the accused/appellants. 7. The informant deposed on 19.03.2005 that the marriage of the deceased with Amarjit Singh was solemnized in the year 1993 but he did not 6 disclosed the exact date of marriage. He said that the accused persons demanded money and articles in dowry and the conjugal life of the deceased never remained happy. He said about the filing of the complaint case earlier due to torture and harassment committed earlier for non-fulfillment of demand of money in dowry and he also stated about the compromise in the Complaint Case No. 68 of 1998. At para-4 of his evidence he proved Ext-2, the compromise petition filed by the appellant Amarjit Singh in the said complaint case. The appellant Amarjit Singh and the witnesses had signed on the compromise. At Para-6 he proved the fardbeyan and his signature thereon respectively marked as Exts-3 & 3/1. He also proved Ext-3, the signature of his father. At para-5 of his evidence it is stated that he learnt about the occurrence in the morning of 16.08.2001 from Birendra Singh (P.W.5) that the Sasural People of the deceased had killed her by administering poison to her then he said that he came to deceased‟s Sasural house and saw her lying there dead on a cot on the Varandah of the house. Then at para-6 he stated about the recording of the fardbeyan at appellant Amarjit Singh‟s house. At para-7 of his statement he stated that he had given a written statement on 16.08.2001 7 at the P.S. At paras-7 & 9 he stated that he was not a medical expert but on looking to the deceased he had felt that the deceased had been killed by administering poison. 8. P.W.2 Sardar Madan Singh deposed on 03.11.2004 that the marriage of the deceased had been performed 5-6 years ago. He also does not disclose the exact date of the marriage. He stated that on 15.08.2001 at 2.00 p.m. he had seen the deceased lying on a cot in unconscious position and people were pouring water on her head. He further deposed that he learnt from the persons present there that the deceased had some altercation from her husband, Dewar and mother-in-law regarding demand of Rs.20,000/- and they had threatened that they will marry the deceased‟s husband to another lady if the demand was not fulfilled and that in the meantime she was administered poison or she herself took poison, as a result of which she died. Then this witness deposed about the compromise in the earlier complaint case, C.A. No. 68/1998 and he also stated that he was a witness to the Punchnama. 9. The P.W.1 Sardar Kishan Singh deposed that on 02.08.2004 that the appellant was married to the deceased about ten years back. Thus, according to 8 this witness the deceased was married in the year 1994. This witness being the father of the deceased simply stated about the marriage performed ten years back but he did not disclose the exact date of the marriage. He further deposed at para-1 that Birendra Singh (P.W.5) had informed on telephone in the evening of 15.08.2001 that the appellants and the deceased‟s mother-in-law had killed the deceased by throttling and poisoning. He further deposed that earlier also money was demanded and due to non- fulfillment of the demand the deceased had been tortured, therefore, she had filed a case in which the accused had filed compromise and the case was compromised on the terms and undertaking that husband will not torture the deceased in future. Thus, this witness had said about the demand of Rs.20,000/- and its non-fulfillment as the cause for the present occurrence and then he referred to the previous case which had been compromised. During his evidence this witness produced the deceased‟s letter dated 07.12.1997 sent her to him. The letter was proved and marked as Ext-1. Learned counsel for the appellant submitted that the letter was not produced before the I.O. during investigation and that it was produced for the first time in Court during evidence of 9 this witness. No doubt the letter was produced in Court for the first time but the letter appears to be a natural and genuine and there does not appear to be any doubt to disbelieve the same. This letter (Ext-1) mentions to have been written by “Lattoo” and this witness has stated at para-2 that “Lattoo” was the nick name of the deceased. Thus, the letter was written by the deceased. 10. The perusal of the contents of the letter (Ext-1) depicts a pathetic story of torture and harassment to the deceased due to non-fulfillment of the demand of dowry. It is mentioned in the letter that mother-in-law of the deceased was always torturing and harassing her due to non-fulfillment of demand of Rs.15,000/- and she (mother-in-law) was threatening that if the demand was not fulfilled she would perform the marriage of her son (deceased‟s husband) with another woman. It is also mentioned in the letter that the deceased‟s husband who was living out station had sent a message to her that he will not come to the house till the deceased was alive there and that he was also learnt to have some affair with another woman at the place where he was living. The letter further mentions that the mother-in-law was always asking her (deceased) to leave her Sasural but the deceased 10 had taken a decision that when she had come to her Sasural as a bride, she will not leave her Sasural till she was alive and that her dead body would be taken out of the house. Deceased has expressed her despair and disappointment in the letter that she had lost all her patience, and the situation had become beyond her tolerance and that any day anything untoward may happen to her. She has also mentioned in the letter that when she fell ill her mother-in-law did not arrange for any medical treatment to her. Therefore, she took a loan of Rs.1500/- from her (deceased‟s) Mausi, and got her treated. The deceased also expressed that in case she does not survive the loan of Rs.1500/- be repaid to her Mausi by selling out her ring. 11. At para-12 of his evidence P.W.1 deposed that at the time of occurrence his son-in-law (Amarjit Singh) was living at Aassam. At para-6 of his evidence he further deposed that his son-in-law was very poor and that he did not provide the deceased nutritious food after her caesarian operation and proper treatment was also not provided to her, as a result of which, she died after one month of the birth of her child. 12. P.W.4 Sardar Shailendra Singh deposed that deceased was married to appellant Amarjit Singh 11 in the year 1994-95. This witness is the elder brother of the deceased but he too does not disclose the date of the marriage. He further deposed that the appellants used to torture the deceased after marriage due to non-fulfillment of the demand of dowry and that being fed up, he instituted complaint case but it was compromised on the appellants‟ undertaking that they will not torture her but the accused persons started torturing her again. Thus, this witness deposes that even after compromise wherein the accused had undertaken not to torture the deceased the torturing continued. At para-3 of his evidence he stated that he learnt about the occurrence on telephone from Birendra Singh (P.W.5) that the accused/appellants had poisoned the deceased and thereby they killed her. Then he says that he, along with his father and brother, went to the police station and disclosed to the Officer-in-Charge about the occurrence but he further deposed at para-3 that he had gone to the Sasural of the deceased and found the deceased lying there dead and froth was coming out from her mouth. He also deposed that police had come and had taken statement there and that thereafter the inquest report of the dead body was also prepared there in his presence. At para- 2 of his evidence this witness has stated that after 12 compromise in the complaint case the deceased had gone to her Sasural but even thereafter the accused persons continued torturing her again. 13. The P.W.5 Sardar Birendra Singh, the Mausera brother of the deceased stated in his evidence that on hearing Hulla he went to deceased‟s Sasural house and found that she was lying and froth was coming from her mouth. He stated that the villagers told him that deceased had been poisoned in connection with demand of money which was being made since the last one month. He further said that the deceased was provided proper treatment by the doctor and she had been treated by a local doctor and that she died in the preceding night at 7.00 to 8.00 p.m. He also deposed that on 16.08.2001 he had informed the deceased‟s father on telephone. He further deposed that on his information Kishan Singh (P.W.1) Sanjeet Singh (P.W.3) and Shailendra Singh (P.W.4) had come to the deceased‟s Sasural with police. He further deposed that the police had prepared the inquest report of the deceased‟s dead body in his presence. He identified his signature (Ext-4) on the inquest report. At para-9 of his evidence he stated that his house situated at a close distance from the Sasural of the deceased. Thus, this witness was a natural and 13 probable witness to have come to the deceased‟s Sasural on hearing Hulla about the death of the deceased. This witness though does not name the villagers, who had stated before him about the demand of money since last four month. But it appears that those were the persons of the locality and thus what was stated or expressed by people at the place of occurrence shortly after the occurrence is relevant for consideration. 14. The P.W.6 Sukhdeo Singh has turned hostile to the prosecution. He stated that he knew nothing about the occurrence. This witness has been cross-examined by the Addl. P.P. and on his attention being drawn to his previous police statement, he denied to have made such statement before the I.O. 15. P.W.7 Dr. Ashok Kumar Choudhary had conducted post mortem examination on the dead body of the deceased, he deposed that on 16.08.2001 he had conducted post mortem examination on the dead body of the deceased Sukhmini Kaur and he had found the following injuries:- I. Brain was found congested, II. Both pleura intact, III. Both lungs were congested, IV. Stomach contained liquid material with 14 pungent smell (Poisoning smell). Inner wall of gastric mucosa shows peticheal haemorrhage. Liver, splin, both kidneys were found congested. Uterine cavity was found empty. There was no external injury on her person. V. Time elapse death was within 48 hours. He further deposed that the cause of death in his opinion was due to poisoning. He also deposed that the viscera were preserved for chemical analysis. He proved the post mortem report (Ext-5) in his writing and signature. He also proved Ext-5/1, the signature of Dr. Arun Kumar Choudhary, who was with him in conducting post mortem examination. He further deposed that in his opinion peticheal haemorrhage comes in case of poisoning. He also deposed that the cause of death was completely due to administering poison to the deceased. He further deposed in his cross-examination that he had not sent the Viscera rather the police official had sent it to F.S.L. Muzaffarpur for scientific and chemical analysis. 16. The P.W.8 Mahesh Prasad Gupta, the I.O. has deposed that on 16.08.2001 when he was Officer-in-Charge of Rohtara P.S., he got information at 9.00 a.m. that an occurrence of poisoning had taken place in village Sadalpur. He recorded the information 15 in the station diary and then he, along with the Sub- inspector proceeded to village Sadalpur for verification of the information. He further deposed that he reached to the appellant Amarjit Singh‟s house in the village at 11.00 a.m. He further deposed that the dead body of the deceased Sukhmini Kaur was lying on a cot at the Darbaja of the appellants. Then he deposed that he recorded the fardbeyan of informant Sardar Sanjeet Singh. He proved the fardbeyan (Ext-3) in his writing and signature. He also stated that the informant Sardar Sanjeet singh signed on it. The signature of the informant has been proved as Ext-3/1. He also deposed that he has forwarded the fardbeyan for institution of F.I.R. at the P.S. He further deposed that after lodging of the F.I.R. he took up the investigation of the case. He proved the F.I.R. and the writing and signature of the Officer-in-Charge Surendra Kumar Saroj. He further stated that the inquest report of the dead body was prepared in his presence by S.I. B.K. Tirki. The inquest report has been proved as Ext-4/1. He further deposed that he had recorded the statement of the witnesses then he deposed that on investigation he found the case true but in the meantime he was transferred to another place, hence he handed over the charge of further investigation to S.I. Rajesh Tiwary. 16 17. P.W.9 Surendra Kumar Saroj was the Officer-in-Charge of Korha P.S. at the relevant time. He deposed that on receiving the fardbeyan from Rohtara P.S. he had instituted the First Information Report No. 159 of 2001 dated 17.08.2001 under Sections 304B, 328/34 of the I.P.C. at his P.S. He proved the F.I.R. Ext-C in his writing and signature. 18. P.W.10 Md. Ayub was the technician in Regional Forensic Science Laboratory, Muzaffarpur, where the viscera of the deceased were examined. He deposed that at the time of examination of the viscera he was present with Mr. B.K. Sinha, Regional Director, RFSL, Muzaffarpur and that on examination Aluminium Phosphide was detected in the viscera. He also deposed that Almunium Phosphide is commonly known as “CELPHOS” and that it is a severe gaestro intestinal irritant. He further deposed that CELPHOS is used as grains preservative and it is highly poisonous. He also deposed that after taking CELPHOS a person must die. He proved the viscera examination report Ext-6 stating that it bears his signature and the signature of the director Mr. B.K. Sinha. He further deposed that the report was prepared in his presence, and the chemical examination of the viscera of the deceased established 17 that the deceased had died of consuming „CELPHOS‟ which is a strong poison used in preserving grains. 19. As to the defence evidence the D.W.1, Ramji Jha the resident of the same village Sadalpur deposed that the deceased Sukhmini Kaur was married to appellant Amarjit Singh on 22.06.1994 and the marriage rituals performed in Gurudwara at Katihar. He also deposed that he had attended the marriage as a Barati. Thus, according to this witness the marriage was solemnized on 22.06.1994, which period falls seven weeks beyond the period of seven years from the marriage to the date of occurrence. At para-10 of his evidence he deposed that the marriage of the deceased was performed beyond seven years from the date of occurrence. During cross- examination, the prosecution did not challenge the evidence of this witness on the point of date of marriage as stated by this witness. This witness further deposed that after caesarian operation the appellant could not provide her proper treatment and that the deceased died out of frustration. He also stated that the appellants have not administered any poison to the deceased. 20. The D.W.2 Budhi Risi deposed that at the time of occurrence Amarjit Singh was residing in 18 Assam and that he used to send money to his house. He also deposed that appellant Chhotu Singh was living separate from Amarjit Singh. After caesarian operation the deceased remained ill and that due to poverty the Sasural people used to get her treated by a village doctor and that due to this the deceased died of frustration. The P.Ws.3 & 4 also deposed on similar lines. 21. During argument learned counsel for the appellant challenged the charge under Section 304B of I.P.C. on the ground that prosecution failed to establish the marriage within seven years from the date of occurrence and that it being an essential element for the substratum of the charge, the prosecution has failed to establish this charge. It was pointed out that all the prosecution witnesses including the father, brother and Mausa of the deceased all have tried to evade in stating the date of marriage and they have deliberately stated about the marriage vaguely in the manner, some time six years and, some time ten years back. The perusal of the evidence of the prosecution witnesses shows that none of the prosecution witnesses stated about the date of marriage. All have given evasive answer by way of stating that it was solemnized 5-6 or ten years back. 19 The prosecution witnesses include the father, brother and close relatives of the deceased. It cannot be accepted that none of them was in know of the date of the marriage. From the trend of the evidence adduced by the P.Ws. on the point of the period between the marriage and the date of occurrence it appears that the witnesses have tried to gave evasive reply by stating about the number of years which is also not consistent in their evidence and they appear to have tried purposely not to disclose the date of marriage. 22. On the other hand the defence has proved the critified copy of the Complaint Case No. 68 of 1998 (Ext-A) admittedly filed by the prosecution under complaint No.68 of 1998 under Section 498A of the I.P.C. and under Section ¾ of the Dowry Prohibition Act. This certified copy of the complaint specifically mentions the date of marriage as 22.06.1994. The D.W.1 who