Criminal Appeal (SJ) No.245 of 1999 Against the judgment and order of conviction and sentence dated 26. 08. 1999, passed by Shri Uday Shankar, 5th Additional Sessions Judge, Begusarai, in Sessions Trial No. 355 of 1997. Anil Kumar Verma, son of Dhanik Mahton, resident of Village- Noisua, P.S. Gorhpura, District- Begusarai. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. R. C. Sharma, Advocate. Mr. Arun Kumar Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged by the informant Bairagi Mahto, the father of the victim that marriage of the victim Rukmini Devi was solemnised with the appellant Anil Kumar Verma. After the marriage, the victim-deceased went to her Sasural in village Maisna. After the marriage, Anil Kumar Verma demanded Rs. 25,000/- through the daughter of the informant. The 2 informant showed his inability to pay the said amount due to his poverty. Thereafter, Anil Kumar Verma along with his father, mother and brother subjected the victim to cruelty. They used to assault her continually and the victim remained to be under fear. About five months prior to the occurrence the daughter of the informant was driven away after assault by Anil Kumar Verma and put her at the Naihar. The informant disclosed about the occurrence to the respectable persons of the locality and Panchayati was called at the door of Dhanik Lal Mahto, the father of the appellant on 21. 11. 1996, in which decision was taken that the victim Rukmini Devi be brought at Sasural with due dignity and she will not be subjected to cruelty. On the decision of the Panchyat, the victim was taken away by Anil Kumar Verma along with his two associates on a Jeep on 25. 11. 1996. However, on 05. 12. 1996, at about 6 A.M. Shankar Mahto came to his house and disclosed that Rukmini Devi is serious and is being treated at the clinic of Dr. Sunil Kumar at Garhpura. The informant reached Garhpura at the clinic of Dr. Sunil Kumar and saw his daughter lying dead on a cot there. He did not find his son-in-law or any of his family members. 3 He went to Village- Maisna, but there also he did not find his son-in-law or Sambdhi. 4. The statement of the informant was recorded at the clinic of Dr. Sunil Kumar at Garhpura by Officer-in- Charge (P.W. 16) the Officer-in-Charge, Bakhri, who had reached the clinic of Dr. Sunil Kumar on O.D. Slip issued by the Dr. Sunil Kumar (P.W.15) 5. On the basis of Fardbeyan, F.I.R. was lodged. The investigation proceeded. The Inquest Report prepared (Ext.3) by the police. During investigation, dead body of the victim was sent for Post Mortem examination. The Post Mortem report (Ext. 5) was received and Viscera (Ext. 6) was procured by the I.O. After completing the investigation, the police submitted charge sheet for offence under Section 304 B I.P.C. and consequently cognizance was taken and case committed to the Court of Sessions. After commitment, charge was framed for offence under Section 304 B I.P.C. 6. During trial 17 witnesses were examined and documentary evidence were proved. The defence has also adduced evindence. The defence of the accused as appeared from suggestion that deceased Rukmini Devi is 4 not legally wedded wife of the appellant and the victim was a labourer in the house of Dhanik Lal Mahto in the village of Maisna and during working as labourer she got unconscious in the house of Dhanik Lal Mahto and she was taken to clinic of Dr. Sunil Kumar for her treatment where she died. The appellant has falsely been implicated in the false case for not getting the money. 7. The trial court taking into consideration the evidence of the witnesses and found that out of 17 witnesses examined in this case, 12 have turned hostile. However, taking into consideration the evidence of P.W. 2 in part, as well as P.W. 13, 14, 17 held that prosecution has been able to prove the ingredient for offence under Section 304 B I.P.C. beyond reasonable doubt and presumption under Section 113B of the Evidence Act will be that appellant has caused dowry dearth in the above circumstance and hence convicted the appellant for offence under Section 304 B I.P.C. 8. Learned counsel for the appellant, however contends that appellant has challenged the marriage and it has not been established who has poisoned and medical evidence regarding the death by administering poisoning 5 is fluctuating. However, evidence regarding demand and subjecting cruelty is concerned, except the evidence of P.W. 13, the informant there is no other evidence and evidence of P.W.13 suffers from contradiction and hence it is submitted that unless ingredient for offence under Section 304 B I.P.C. is established by unimpeachable evidence with prove that soon before her death she was subjected to cruelty the presumption under Section 113B of Evidence Act is not permissible in law and has placed reliance upon decision reported in 1999 Criminal Law Journal page 1175. It has further been pointed out that evidence of witnesses is fluctuating then evidence of the case is not require to be relied upon and has further place reliance upon decision reported in A.I.R. 1967 S.C. 1027. 9. Learned counsel for the State however contends that in case for offence under Section 304 B I.P.C. three ingredients are required that (1) marriage solemnised within seven years, (2) death in suspicious circumstance and (3) the victim having subjected cruelty for non-fulfillment of demand has well been established by cogent and reliable evidence and hence prosecution under Section 113 B of Evidence Act can well be drawan 6 and hence there is no merit in the submission of the appellant. 10. On respective submission the question for consideration whether the prosecution has been able to prove the three ingredients and the presumption under Section 113 B of Evidence Act can be record to establish the charge. 11. However, the prosecution case is that the victim was marriage two years prior to the occurrence and was subjected to cruelty for non-fulfillment of demand of Rs. 25,000/-. There is allegation that victim died due to poisoning. However, taking into consideration the evidence of P.W. 2, though, has been declared hostile has stated in his evidence Anil Kumar Verma was married in the year 1993 and the wife of Anil Kumar Verma died at the clinic of Dr. Sunil Kumar. He has stated that the dead body which he has seen at the clinic of Dr. Sunil Kumar was the dead body of Rukmini Devi. P.W. 13 is the father and he has stated that marriage of Rukmini Devi was solemnised with Anil Kumar Verma about two years prior to the occurrence. In his cross-examination he has stated that marriage was solemnised at Jaimangalagarh temple, 7 though, he has not attended the marriage due to his illness. P.W. 14 is mother of the victim has stated that marriage of Rukmini Devi was solemnised with Anil Kumar Verma at Jaimangalagarh temple she was present there. However denied suggestion of subjecting cruelty. 12. P.W. 15 is the doctor who treated the victim has stated in his evidence that on 04. 12. 1996, Anil Kumar Verma of Village- Maisna, had brought the patient. P.W. 15 has identified Anil Kumar Verma present in the court. From the evidence it is apparent that victim was living at Sasural at the house of Anil Kumar Verma at the time of occurrence. The lower court recorded the finding that deceased was married with the appellant two years prior to the date of occurrence taking into consideration the evidence and the averment made by the appellant at the outset in his bail petition dated 05. 03. 1997 filed in the court of Chief Judicial Magistrate, Begusarai, that daughter of the informant was the second wife of the appellant. Hence I find and hold that appellant married with Rukmini Devi within two years of the occurrence was living at her sasural at Maisna. 13. However, so far evidence on the cause of 8 death is concerned, Inquest Report (Ext. 3) mentioned that cause of death is due to poisonous substances. However, P.W. 15, Dr. Sunil Kumar, though, has stated that he tried his best to know from the patient, but she was unable to speak out. He has further stated that he informed the police and while he was referred the case to Begusarai then she died and she died due to shock but he could not know the reason for shock. 14. However, P.W. 17 is the doctor who conducted post mortem examination on the person of victm has given feature of the deceased; i) Mouth and eyes partly opened. ii) Liver lungs and kidneys were congested. iii) Heard was partly filled with dark blood in right side chambers. iv) Urinary bladder was partly filled with urine. v) Stomach was containing 100 c.c. of turbid fluid (semi digested) non foul smelling. vi) Rigor mortis was present. 15. The doctor, P.W. 17 opined that cause of death cannot be ascertained as there were no external or internal injuries hence viscera was preserved. However, opined that such features may be present on the dead body 9 due to administration of poison. The viscera sent to Forensic Science Laboratory. The viscera report has been procured and marked as Exhibit. 5. The viscera report suggest that Aluminium Phosphide was detected in viscera was commercially known as Celphos. Hence the death of the victim has been established by poison Celphos. Hence it can well be infer that the death is in suspicious circumstance. 16. The criticism has been advanced by the learned counsel for the appellant that P.W. 17 in his evidence at para 2 has stated no external or internal injuries were found on the dead body. But if the poison is administered to some one without his or her consent, it is expected that the victim will struggle. Damage of limb depends upon the quantity of poison and on its concentration. There is no poison with which the internal organs shall not be affected. Congestion of liver, kidney and heart is the damage and abnormality found in this case in the dead body. In this case these features are possible either by the obstruction of the circulatory system or due to poison present in the blood. Hence the learned counsel for the appellant contends that doctor, 10 though, in para 1 of his deposition has stated that he did not find any external or internal injury, but in para 2 has stated there is no poison with which the internal organs shall not be effected. Hence these are the contradiction in the evidence of the doctor P.W.17. However, I find that doctor in para 1 has specifically stated the features and on the basis of those features opined that the victim died due to administering of poison. The opinion of not finding external and internal injury itself only indicate that injury is only to the effect that injury is not possible some external force or weapon. However, injury pointed out on the victim has specifically be stated not possible by a weapon but is due to poison which has been confirmed by viscera report (Ext. 5). Hence there is no hesitation in holding that death of the victim is apparently due to poisoning and hence in suspicious circumstance other than normal circumstance. 17. However, third question remained is whether since before the death, the victim was subjected to cruelty for non-fulfillment of demand of dowry and this is most important as one of the ingredient for offence under Section 304 B and also require to be established 11 for taking presumption under Section 113 B of Evidence Act. 18. The prosecution case in the F.I.R. itself suggest that after the marriage the appellant Anil Kumar Verma demanded Rs. 25,000/- through the victim the daughter of the informant. The informant was unable to satisfy the demand. The victim was subjected to cruelty for non-fulfillment of demand by assault and due to assault the victim used to be frightened living under fear and about five months prior to the occurrence, the victim was sent to Naihar by the appellant and for which Panchayati was convened on 25. 11. 1996. After the Panchayat, the victim was taken to Sasural and on 05. 12. 1996, the informant learnt about occurrence that victim is serious. 19. However, with regard to the allegation of demand, P.W. 14 and P.W. 13, have supported the prosecution case regarding demand of Rs. 25,000/- and P.W. 14 in his evidence in para 1 and 7 has supported the prosecution case regarding demand of Rs. 25,000/-. However, story of panchayati has not been supported by the witnesses. P.W. 14 though, have stated about demand 12 of Rs. 25,000/-, but has not stated about any assault or subjecting cruelty. 20. However, P.W. 13 has supported the prosecution case about subjecting cruelty. His son-in-law along with his family members used to assault and subjected her to cruelty has stated that appellant Anil Kumar Verma and his parents used to assault Rukmini Devi. Anil Kumar Verma brought the victim to the Naihar after assault. However, this witness in para 5 stated that he has disclosed the fact to the police recorded the same and read over on which he signed and he has proved his signature on the Fardbeyan (Ext.1) and also proved signature of Sukhdeo Mahto on the Fardbeyan. Hence this witness has supported the prosecution case about assault on her daughter by Anil Kumar Verma and his signature on Fardbeyan has been proved as Ext. 2. Hence, this witness supported the prosecution case about assault on his daughter (victim) as well as in the statement in the Fardbeyan (Ext.1). 21. However, criticism has been advanced by the learned counsel for the appellant that attention of this witness has been drawn in para 11 and this witness has 13 stated before the police that Dhanik Lal Mahto and his family members used to assault his daughter. It is submitted that contradiction has been recorded from the I.O. P.W. 16 in para 27 that the informant has not stated before him that Dhanik Lal Mahto and his family members assaulted his daughter Rukmini Devi as well as it is asserted that evidence of P.W. 13 is suffers from contradiction. However to record a contradiction the attention of the witness toward the witness statement made before the police is required to be drawn. 22. However, statement of the victim in the Fardbeyan itself mentioned the fact in which he has specifically stated that victim was subjected to cruelty and assault for non-fulfillment of demand when the informant fail to fulfill the demand of Rs. 25,000/-. Hence assault of the victim specifically mentioned in the Fardbeyan. 23. However to take a contradiction the attention of the witness toward the previous statement made by the witness before police is required to be drawn and the said statement is required to be proved in accordance with the Section 145 of the Evidence Act. 14 The statement made in evidence in examination in chief of the witness is required to be compound with the statement made before prior statement made before the police is required to be seen whether the two statement can before holding that the evidence suffer from contradiction. However the statement made by the witness before police has not been proved or brought in evidence. Hence the argument advance is not tenable as neither the content of statement made by this witness in his statement under Section 161 Cr.P.C. made in case diary has neither been brought in evidence on record nor marked as exhibit not the attention of this witness has been drawn to give an explanation. 24. Moreover, the evidence of the witness P.W. 13 stands corroborated his statement in Fardbeyan that the victim was subjected to cruelty and was assaulted by the appellant and hence evidence of P.W. 14 cannot be discarded on the ground itself from contradiction whereas the evidence of P.W. 13 stands corroborated with his statement in his Fardbeyan recorded by P.W. 16 and hence I find and hold that prosecution has been able to prove that victim was 15 subjected cruelty for non-fulfillment of demand of Rs.25,000/-. However, cooperation just before the occurrence does not mean any inference and it should be within reasonable period. Here the period assign is about five months to the occurrence and thereafter, she was assault and was taken to Naihar and it is stated that she was again sent to Sasural and within five-six days before occurrence took place and death by poison having been established. 25. Hence taking into consideration entire evidence I find that marriage solemnised within two years having been established and she was living at Sasural and there is evidence that she was subjected to cruelty for non-fulfillment of demand and death of the victim is in suspicious circumstance by poison. Hence three ingredients for offence under Section 304 B having been established and hence presumption under Section 113 B of Evidence Act can well be taken when there is evidence that within five months before the occurrence she was subjected to cruelty for non-fulfillment of demand and hence presumption under Section 113B of Evidence Act. 16 26. Hence I find and hold that no merit in this appeal. However, having regard to the fact that occurrence is of the year 1996 and appellant has been sentenced to undergo rigorous imprisonment for ten years. Hence end of justice shall meet by sentencing the appellant to undergo rigorous imprisonment for seven years. 27. Hence with modification of sentence, this appeal is dismissed. Patna High Court. The 30th November, 2011. NAFR/m.p. ( Gopal Prasad, J.)