CRIMINAL APPEAL No.266 OF 2004 (Against the Judgment dated 20th March,2004, passed by Presiding Officer, Court No. 2, Patna in Sessions Trial No. 234 of 1992/335 of 2001.) -------- UMESH KUMAR MALAKAR & ANR---------------Appellants Versus STATE OF BIHAR-------------------------Respondent For the Appellants - Mr. Pankaj Kumar Sinha Mr. Kamal Kishore ..Advocates For the Respondent-State - Satya Narain Prasad, Advocate. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA --------- S.C.Jha, J: These two appellants namely, Umesh Kumar Malakar and Shanti Devi, who have been held guilty in sessions trial no. 234 of 1992/235 of 2001, for offences punishable under Sections 304(B) and 498 of the Indian Penal Code as also under Sections 3 and 4 of the Dowry Prohibition Act by the learned Additional Court No. II, Patna (Fast Track) and thereby sentenced to undergo rigorous imprisonment for ten years, two years and one year respectively, have filed this Cr. Appeal for setting aside the order of conviction and sentence. 2. The prosecution story as disclosed from the written report of the informant Ram Bachan Bhagat (PW6) before the Officer-in-charge of Gauri Chak police station, in the district of Patna, is to the effect that marriage of his daughter Babita was solemnized with appellant no. 1 Umesh Kumar Malakar on 15.5.1989 and thereafter, Babita went her Sasural and started living there, but, these two appellants namely, Umesh Kumar Malakar - 2 - and his mother Shanti Devi started pressurizing her to persuade her father to give a gold ring and an electric fan by way of dowry and as the demand was not fulfilled, the appellants also extended threat of committing her murder. It has also been further alleged that on 10.6.1989, the informant went to meet his daughter at her Sasural but her mother-in-law did not allow him to meet her daughter Babita and as such, in spite of his waiting there for about two hours, he returned his house without meeting his daughter. His son-in-law Umesh Kumar Malakar, then, sent an inland letter and called him and in pursuance of the aforesaid letter, the informant went to the village on 16.7.1989 to meet his daughter and in that meeting, his daughter Babita told him that her husband and mother-in-law had been pressurizing her to fulfill demand of dowry in the form of a gold ring and an electric fan with extension of threat of being killed, in case, such demand was not fulfilled. The informant then met mother-in-law of his daughter, but, she abused him and extended threat that in case such demand was not fulfilled, she would get her son married again somewhere else. He, then requested accused persons (these appellants) to allow his daughter to go with him to his house, but they refused to do so. 3. It is also case of the prosecution that thereafter one Vidyanath Bhagat of village Barawa, P.S. Gauri Chak, Patna, informed him that his daughter had been burnt to death on 17.8.1989. On getting this information, he went to the village of the accused (appellant) on 20.8.1989 and there he came to know that his daughter was burnt to death by her husband and mother-in-law. The informant, thereafter, filed written report with the police on 23.8.1989. The said report was forwarded to the Officer-in-charge, - 3 - Fatwah P.S., where case was registered and police investigated the case and after completion of the investigation, submitted charge sheet against accused persons. 4. Both the accused persons in the trial court pleaded not guilty and stated at the time of their examination under Section 313 Cr.P.C. that they are innocent and Babita was married to accused Umesh Kumar Malakar. Appellant Shanti Devi had stated in such examination that marriage of Babita with Umesh Kumar Malakar had taken place about 2-3 months back before her death, whereas accused Umesh Kumar Malakar had stated that his marriage with Babita had taken place in the year 1989. They had also admitted that Babita died of burning but they denied that they had made any demand of dowry or had tortured or burnt the deceased. The defence as gathered from trend of cross-examination and suggestions given to PWs as also from the evidence of DWs, examined in defence of the accused, is to the effect that Babita caught fire while cooking food on stove and as the stove burst, her cloth caught fire and she received burn injury and was taken to P.M.C.H., Patna, for treatment and during treatment, she died. 5. Their further defence was also to this effect that Shanti Devi was not in the house at the relevant time when Babita received such burn injuries and that at the instigation of others, the informant lodged this false case. 6. In course of trial, the prosecution has examined in all eight witnesses. PW1 Madho Singh and PW2 Ram Chandra Singh have not stated anything about the occurrence. PW3 Dina Nath Singh, PW4 Bindi Ram and PW5 Ram Bachan Bhagat (not - 4 - the informant) who have been tendered for cross-examination, have not stated anything about the occurrence. PW6 is the informant, whose name is also Ram Bachan Bhagat, who happen to be the father of the deceased Babita. PW7 is Doctor Vishnudeo Prasad who had conducted the Post Mortem examination on the dead body of the deceased Babita. PW8 is Kailash Prasad, the I.O. of the case. 7. The accused persons also entered into defence and examined two witnesses namely, DW1 Parmanand Dubey and DW2 Vijay Kumar. DW2 Vijay Kumar an Advocate clerk, is a formal witness and has proved the Fardbayan of Babita Devi as Exhibit ‘A’. 8. In this case, so far as the cause of death of deceased Babita is concerned, PW7 who is a Doctor, has deposed that on 18.8.1989 at about 7.30 P.M., the dead body of Babita, wife of Umesh Kumar Malakar of village Kansari, was brought in P.M.C.H., Patna mortuary and on 19.8.1989, he conducted the post mortem examination on the dead body at the mortuary, which commenced at 10.30 and he found that rigor-mortis was present all over the body. He further found that anti mortem dermo-epidermal burn injury involving the cervical region, whole of the chest, upper half of abdomen, whole back and buttock pundendal region and upper half of both lower limbs. He, further, stated that dissection of head, chest and abdomen were done, the viscera like liver, spleen, kidney and lungs were found congested. The uterus was normal. Urinary bladder was empty. The right chamber of heart was full of blood and left was empty and the stomach contained two ounces of dark watery fluid. He has also found that cause of death was shock due to the burn injury which was caused within 24 hours of post - 5 - mortem examination. The post mortem report has been marked Exbt. 2. In cross-examination, he has stated that deceased died on 18.8.1989 but, he could not say the exact time of death. 9. From the aforesaid evidence of Doctor, it is clear that Babita Devi died on 18.8.1989, the fact which has also been admitted by the accused persons (appellants) in their statement recorded under Section 313 of the Cr. P.C. to this effect that Babita died of burn injuries. 10. PW6, the informant, has deposed that his daughter Babita Devi was married to accused Umesh Kumar Malakar on 15.5.1989. He, further, says that on 17.8.1989, he came to know from one Vidyanath Bhagat and Girja Nath Bhagat, that her daughter Babita had been burnt to death. So, it is an admitted fact that Babita died after about 3-4 months of her marriage in her sasural. Babita was young girl, who died within seven years of such marriage. Babita started living in her Sasural after her marriage and as per version of the informant, Umesh Malakar used to demand one gold ring and an electric fan by way of further dowry. 11. The informant had gone to the sasural of his daughter after about two months of such marriage where Babita informed him regarding demand of a gold ring and a fan. Mother-in- law of Babita also used to pass taunting remarks on her for such non-fulfilment of demand. Further, father of the deceased went to see her daughter in her sasural but he could not meet any family members and from villagers, he learnt that his daughter was burnt to death by accused Umesh Kumar Malakar and that he could not get opportunity to see the dead body of his daughter. He has stated that he then filed written report (exbt. 1) at the police station. This - 6 - written report corroborates the evidence of the witnesses in material particulars. The accused facing trial during cross-examination of this witness, has also not anywhere given any suggestion that they had sent any information to the informant regarding sustaining of any burn injury or death of Babita. Although, Vidyanath Bhagat and Girja Nath Bhagat who happen to be the relatives of the informant, have not been examined on behalf of the prosecution from whom the informant claims to have gathered information regarding death of his daughter Babita but accused persons have not denied that Vidyanath Bhagat has not given information to the informant. The accused persons nowhere has stated that they have sent information to the informant regarding death of his daughter. So, non-sending of any information regarding death of Babita also speaks a volume against the conduct of the accused persons. DW1 in his evidence has stated that accused persons had telephonically informed the informant about the occurrence but no suggestion was given to the informant to that effect nor the accused persons have stated in their statement under Section 313 Cr. P.C. that they had sent information on telephone to the informant. Thus, the evidence of DW1 could be said to be an after thought and on the evidence of DW1, it cannot be said that the information regarding death of Babita was sent to the informant by the accused persons. 12. The learned trial court has dealt with delay in institution of the case and especially, in respect of date when informant claims to have gone to see his daughter. As per his version, it was17.8.1989 he had gone to see his daughter but actually, it was 20.8.1989 when he went to the village of the - 7 - accused persons, therefore, for all practical purposes, it should be deemed that it was 20.8.1989, not 17.8.1989, when he learnt about death of his daughter and on account of lapse of memory, he stated the same to be 17.8.1989 regarding receipt of such information of the death of his daughter. 13. In the aforesaid circumstances, presumption would be that Babita who died in her Sasural within seven years of her marriage, was subjected to cruelty by accused persons in connection with the demand of dowry under Section 113 B of the Evidence Act. 14. The evidence of the I.O. (P.W.8) also shows that actually no stove was found there. The learned court below while holding them guilty has relied upon the evidence of P.W.6, which shows that the deceased was burnt to death for non-fulfilment of dowry demand by the accused persons. On meticulous examination of the entire evidences adduced on behalf of the prosecution as also defence and by discussing the evidence of the I.O. (P.W.8) it was held that there was no space in the room for the purpose of cooking and explosion of stove. The reason for disbelieving of such story has also been discussed in paragraph 36 of the judgment of the learned trial court, which appears to be convincing. 15. From the aforesaid discussion, it is clear that appellant Shanti Devi being mother-in-law of the deceased was at least 60 years old at the time of occurrence and the informant Ram Bachan Bhagat (P.W.6) in paragraph-1 of his evidence has clearly stated that it was Umesh, husband of the deceased, who had demanded a gold ring and a ceiling fan. Such demand was also repeated by Umesh as stated in paragraph-2 of the examination-in- - 8 - chief. Of course, his mother used to pass such sarcastic remarks in respect of demand. So, in the aforesaid context of the matter by scanning evidence of the informant, it could be deduced that it was Umesh, husband of the deceased, who used to demand gold ring and a ceiling fan likely to be for his use and for that quantum of allegation against Umesh can be distinguished from that of his mother Shanti Devi. 16. In the facts and circumstances, it could be presumed that appellant Shanti Devi who was an old village lady had no important role to play in respect of fulfillment of further dowry demand. Moreover, considering her age of about 60 years even on the date of occurrence, presumption could be that she was not in a position to exert a physical dominance over the victim so as to cause any burn injury herself. Non-examination of Vidyanand Bhagat, who happens to be relation of the informant, as would be revealed from paragraphs 10 and 11 of evidence of P.W.6 it could be inferred that there is absence of any witness to say that they have seen the occurrence. The plea of absence of Shanti Devi on the relevant date because of having gone out of the village in connection with treatment of her broken hand also bears force. 17. Evidence of D.W.1 Parmanand Dubey in paragraph-2 goes to show that the appellant Shanti Devi had gone to Sadisopur a day earlier. 18. In the aforesaid facts and circumstances and evidences, charge against Shanti Devi for which she has been held guilty and, accordingly, sentenced, does not appear to have been substantiated beyond all reasonable shadow of doubts. There is no evidence to say that Shanti Devi was present on that day. So, the - 9 - conviction and thereby imposition of sentence with regard to Shanti Devi is not sustainable and hence stands set aside. 19. So far appellant Umesh Kumar Malakar is concerned, for the reasons stated above and considering facts, evidence, circumstances, probabilities as discussed in the impugned judgment does not require any interference. So the order of conviction and imposition of sentence stands confirmed and the appeal in respect of appellant Umesh Kumar Malakar stands dismissed. (Subash Chandra Jha, J.) Patna High Court The 30th day of July, 2008 S.Ali/N.A.F.R.