CRIMINAL APPEAL No. 327 OF 1993 (S.J.) Against the Judgment of conviction and Order of Sentence dated 3.9.1993 passed by Sri Gopal Jee, IInd Additional Sessions Judge, Banka in Sessions Trial No. 356/91 / T.R. No. 201/93. LAKHAN PRASAD SINGH, SON OF SRI RAGHUBIR PRASAD SINGH, RESIDENT OF PATTI CHAK, P.S. RAJAUN, DISTRICT-BANKA ---------------------------Appellant. Versus THE STATE OF BIHAR --------------------------Respondent For the appellant: - Sri Rajiv Kumar Verma, Sr. Advocate. Sri Rajneesh, Advocate. Sri S. Jaiswal, Advocate. For the State: - Sri. Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The solitary appellant was put on trial along with three others, namely, Babita Devi, Prabhash Kumar Singh, Ghanshyam Prasad Singh for charges under Sections 304B and 201 IPC by the learned Additional Sessions Judge-II, Banka in Sessions Trial No. 356 of 1991 / 201 of 1993 and was found guilty of committing the above noted two offences while the learned Judge was pleased in acquitting the remaining three accused persons named above of the similar charges which were jointly framed against all the four accused persons. The judgment and order of conviction was - 2 - passed by the learned Judge on 3.9.1993 and the solitary appellant Lakhan Prasad Singh preferred the present appeal to question the legality and propriety of the judgment of conviction and order of sentence passed against him. The facts are very short which are contained in written report of P.W. 8 Suresh Prasad Singh who happened to be the father of the deceased Geeta Devi. It is stated that on 6.8.1989, P.W. 8 learnt that his daughter who was married to the present appellant and who was living with the appellant in his house had been murdered. The informant stated that he was residing in Kolkata along with his family members and on receiving the information he reached the village on 8.6.1999 so as to collecting the real facts about the information and came to know that the four accused persons had killed his daughter and had caused the disappearance of the dead body on 27.5.1989 in the night, when it was raining very heavily. It is stated that this appellant Lakhan Prasad used to tell his wife that her father had arranged her marriage to the appellant after paying a dowry amount of Rs. 5,000/- only but now the time had changed and if the appellant could get married somewhere, he could fetch Rs. 15,000/- in dowry. It was alleged that the appellant, as such, asked the lady to ask her father to pay a sum of Rs. 10-15 thousands else the appellant, would kill the lady so as to getting marriage himself to another lady. It was stated that the above facts and the threat held by the appellant to the lady were conveyed to - 3 - the informant by a letter (Ext.1) upon which the informant sent information to his daughter that he would come and settle the matter but in the meantime, she was killed. On the basis of the written report, Rajoun P.S. Case No. 73 of 1989 was registered and the investigation was taken up and after close of the same the four accused persons including the present appellant were sent up for trial, which ended in the judgment and order of sentence as indicated above. The defence of the appellant was of total innocence. It was further pleaded that the lady was pregnant and she developed some pregnancy related complications which caused excessive bleeding to her and while she was being shifted to a hospital in Banka she died in the way. The prosecution examined 12 witnesses out of whom P.Ws. 2, 3, 5, 6, 9, 11 and 12 were tendered for cross-examination. P.W. 12 who was also tendered proved the writings of Police Officer on the F.I.R. and on that basis the document was marked Ext. 3. Other witnesses who stated some facts or the other were P.Ws. 1, 4, 7, 8 (informant) and 10 but none among these five witnesses stated the fact which may constitute an offence under Section 304B of the Penal Code rather all of them except P.W. 8 stated that they had carried the lady who had fallen ill to the hospital when she died in the way and participated in the cremation of the dead body by the side of particular river. The evidence of P.Ws. 1, 4, 7 and 10 is on the same lines. As regards P.W. 8 the informant of the case, he - 4 - appears supporting the prosecution evidence more or less in the same manner and by stating the same facts as he put in his written report except that he had not mentioned the name of any person who could have informed him about the commission of murder of his daughter. In his evidence in Court P.W. 8 named one Doman Das as the man who had informed him that it were the appellant and other accused persons, who caused the death of his daughter. But Doman Das in spite of being named for the first time, in Court by P.W. 8, was not produced for his evidence. The other aspect which was contended in context to the above person Doman Das was that whether he had given any statement before the Investigating Officer could also not be shown to the Court inasmuch as the I.O. was not examined. P.W. 8 while being examined on the first date, i.e., on 12.08.1992 had proved the writings of the letter said to be written by his daughter but during the course of his cross-examination on a subsequent date, the witness stated that his daughter did not know writing and he was simply able to put down her signature. P.W. 8 further stated that his daughter had not written any letter ever to him and that Ext.1 was handed over to him by some unknown persons in the village on the date of occurrence whose name he could not disclose in his statement. P.W. 8’s evidence further indicated that the relationship of the deceased with other family members was cordial and she had never been pestered with any demand of additional dowry or any dowry. His statement further indicated that - 5 - she was married 10 years prior to the date of occurrence. The learned Additional Sessions Judge while reading and considering the evidence of P.W. 8 appears utilizing the statement made in the F.I.R./written report that the lady was aged about 20 years at the time of her death and as per the informant she had been married 7 years prior to the incident and that she had a daughter of about 15 months. The learned trial Judge went on to read the provisions of Section 304B I.P.C. as also Section 113(B) of the Indian Evidence Act to draw a conclusion that the death was well within the statutory period of 7 years and the death being unnatural, as per the presumption to be drawn, it could the accused who could have committed the offence. The Court feels that the learned Judge was completely at error in drawing the presumption of committing dowry death against the appellant. I could simply refer a series of decisions holding that even in a case in which there is a statutory presumption to be drawn by virtue of any provision of law, the necessary ingredients or the facts which constitute that offence, have, firstly to be established by the prosecution. I could simply refer to one of the most celebrated decisions of the Supreme Court in Case of Rabindra Kumar Dey Versus State of Orissa reported in A.I.R. 1977 SC 170. That was a case of misappropriating Government money and in that case also the trial court had fallen in similar error of drawing a presumption of entrustment and no discharge of the entrustment properly by the appellant before the Supreme Court, namely, - 6 - Rabindra Kumar Dey who was the Additional Collector In-Charge of Land Acquisition. It was held by making reference to a number of decisions that in such an offence only an accused could be called upon to discharge the burden thrust upon him by statute and could be asked to discharge the same only when the prosecution has been able in establishing every of the ingredients of a particular offence. Likewise, in a case of the present nature the prosecution could not take a plea that by virtue of the death of a lady within 7 years under circumstances not natural the statutory presumption has simply to be drawn against an accused in order to shifting the burden upon the accused to discharge the same. The prosecution in a case under Section 304B IPC shall have to establish by acceptable concrete facts that the death had been caused:- (I) Within seven years of marriage, (II) Under circumstances not natural, (III) That soon before her death, she was subjected to cruelty or harassment by the husband or any relative of her husband for or in connection with any demand for dowry. These are most ingredients of the offence and onus always lies for establishing each of the above ingredients on the prosecution. The statutory presumption under Section 113B of the Indian Evidence Act would come over to the accused only when the prosecution had succeeded in establishing all of the above noted ingredients of the offence. If the prosecution has not succeeded - 7 - or, in other words, if the prosecution has failed in establishing the necessary ingredients of the offence under Section 304B of the Indian Penal Code, then no accused is to be asked to discharge his burden under Section 113B of the Indian Evidence Act for, the offence was not constituted or had not been committed by the accused, so to say and as such the onus which always lies upon the prosecution could not be said to be discharged by it. Simply put, even in a case of statutory presumption the onus of establishing the offence always lies upon the prosecution; it never shifts and the question of turning to the accused to seek his explanation so as to discharging his burden does not arise. In case the prosecution succeeds in discharging its onus, the accused could show circumstances appearing from the evidence on record introduced by the cross-examination of witness by adducing his evidence indicating the discharge of his burden. The defence has not discharged its burden with the same standard of “Proof to the hilt” by if he, by cross-examination of the P.Ws. introduces circumstances in his favour, he shakes the foundation of the prosecution charges and thereby gets acquitted by creating a doubt in the prosecution case. The fallacy in the finding arrived at by the learned Additional Judge is that he used the F.I.R. as a piece of evidence for forming an opinion that the death was caused within 7 years of her marriage. The learned trial Judge will probably himself recall the - 8 - law that F.I.R. is never a substantive peace of evidence, it would be a document which can be used only to corroborate or contradict the contents of the document under Section 162 Cr.P.C. The other reason on which the learned Judge appears to have gone away from recording the correct finding is that the learned Judge did not read the evidence of P.W. 8 in its totality and took up one line to raise the inference. This approach of the learned Judge, in the opinion of this Court, is completely wrong in not reading the evidence of witnesses as a whole. He acted in an erroneous manner in drawing an inference against an accused or any party to the proceeding. If P.W. 8 was telling the Court in his examination-in-chief that his daughter was married within seven years from the date of her death, in cross-examination he was telling it that she was married 10 years prior to the incident. Not only that, even in examination- in-chief the witnesses stated that the lady could have been married some nine years prior to the occurrence. Thus, the evidence of the witnesses in examination-in-chief as also in his cross-examination could not raise an inference that the lady could have been married to the appellant within seven years of the occurrence. Thus, the most important ingredient of the offence that the death could have occurred within seven years of the marriage of lady appears not established. The witnesses like P.Ws. 1, 4, 7 and have all stated that the lady developed pregnancy related complications and on that - 9 - account she was bleeding excessively. She was put on a Khatiya and was being taken to a hospital in Banka but she died in the way and thereafter the dead body was cremated by the side of a particular river. As regards the evidence of P.W. 8 as to how he could know this fact, it appears presenting an anomalous situation. In one part of his evidence, i.e., in examination-in-chief the witness says that his daughter had been killed but again he does not name the source from which or the name of a person from whom he could have learnt this fact. In his cross-examination he has given a complete go by to the above statement and also that he could learn that his daughter had been murdered rather he stated that she development some pregnancy related complications and died on that account. Where the statement of the witness in two parts of his evidence contradicts each other, it was hardly enough to raise any inference so as to holding that a particular aspect of the offence was established. Thus the learned Judge appears to be completely at error when he held the appellant guilty of committing the offence punishable under Section 304B of the Indian Penal Code. One particular aspect which has struck me could have also struck the learned Judge while holding the letter Ext.1 admissible under Section 32(1) of the Indian Evidence Act. This hardly requires a reiteration that a statement made by a person either orally or in writing in the case of his death is admissible under Section 32(1) of the Indian Evidence Act. It has been held in the - 10 - Case of Sharad Birdhichand Sarada V. State of Maharashtra reported in A.I.R. 1984 SC 1622 that death includes suicide also and if a letter gave rise to an inference that the author of the same may also have committed suicide, then it would be equally admissible under section 32(1) of the Indian Evidence Act. But, one has to be very careful in reading the law and the facts of the case for fulfilling the requirements of admissibility and its relevance under Section 32(1) of the Evidence Act. The foremost criterion could be whether the letter was really written by the deceased. It is true that P.W. 8 had stated in his evidence, i.e., in examination-in-chief that Ext.1 the letter was written by his deceased daughter Geeta Devi but while being cross-examined the witnesses stated that his daughter Geeta Devi did not know writing or reading and could be only able to put down her signature and that too anyhow. He further stated that he did not really know as to who had given letter to him and who indeed had written it, but he got it at the village while being at the place of occurrence. When there was a doubt on account of the statement of P.W. 8 on the very writing of Ext.1 then it was error on the part of the learned Judge to hold that it would be admissible or relevant under Section 32(1) of the Evidence Act. On being taken through the evidence available on the record of the trial court and on considering findings recorded by - 11 - Patna High Court Dated the 28th February, 2009 AFR/S.Sb (Dharnidhar Jha, J.) learned Additional Sessions Judge, I find that the prosecution had miserably failed in establishing the charges against the appellant. In fact the charges had not at all been proved. In the result the appeal is allowed. The judgment of conviction and order of sentence are hereby set aside. The appellant is acquitted of his charges. He is on bail. He shall stand discharged from the liability of his bond.