Criminal Appeal (SJ) No.441 of 1998 **** Against the judgment, dated 17.12.1998, passed by Sri Binay Kumar Sinha, Additional Sessions Judge, II, Arrah, in S. Tr. No. 244 of 1994 **** 1. Haridwar Prasad, son of late Bajari Sao 2. Chameli Devi, wife of Haridwar Prasad 3. Raju Prasad @ Surendra, son of Haridwar Prasad 4. Ajay Kumar, son of Haridwar Prasad, all residents of village Hassan Bazar, P.S. Piro in the district of Bhojpur .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Naresh Kumar Malhotra, Sr. Adv. with Mr. Binod Kumar Sinha, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellants have been convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for ten years and have, further, been convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for one year and have, further, been convicted under Section 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for one year. 2 3. The prosecution case, as alleged in the fardbeyan that Meena Kumari, the daughter of the informant, aged 24 years was married with Ajay Kumar, son of Haridwar Prasad, about four years back on 22.05.1989. At the time of married the informant gave money and articles to the couple as dowry. After the marriage, Ajay Kumar and his father demanded a Bajaj scooter or Rs.20,000/-. The informant disclosed his inability to fulfill the said demand, but, assured that if he will improve his financial position then he will satisfy the demand. It has, further, been alleged that in between Ajay Kumar, his father, mother and younger brother continued the demand and the victim was subjected to cruelty for non-fulfillment of the demand. In the meantime, Meena Kumari blessed with two daughters and whenever she used to come to her naiher then she used to disclose about the demand and subjecting cruelty and impress to fulfill the demand otherwise her life would be in danger. It has further alleged that about ten days prior to the occurrence the informant went to sasural of her daughter then her daughter showed the sign of the assault and she disclosed about the cruelty subjected on her and on 20.06.1993 the informant got information that the his daughter has been done to death by her in-laws. On receiving the information the informant went to the sasural and there he did not find the accused persons. From the neighbours it was reported that her daughter was done to death by poisoning and they have taken her to Arrah and on enquiry it was learnt that they have disposed off the dead body by burning. 4. On the fardbeyan the first information report was 3 lodged and after the investigation the charge sheet submitted. 5. During the trial seven witnesses were examined on behalf of the prosecution and four were examined on behalf of the defence, part from the documentary evidence adduced. 6. The witnesses examined on behalf of the prosecution supported the prosecution case that the marriage was solemnized on 22.05.1989 and after some days of the marriage sasural people used to demand scooter or Rs.20,000/- and they used to subject the deceased to cruelty for non-fulfillment of the demand. After the marriage the victim came to naiher for several times. She used to request to arrange for the scooter as her life is in danger. She disclosed about subjecting cruelty for non-fulfillment of demand of scooter. The witnesses saw the sign of assault on victim. The witnesses went to the sasural. They impressed the accused not to assault or supect the victim to cruelty then the accused persons in one voice promised that they will not subject her to cruelty. The victim was done to death by poisoning. The parents or naiher people of the victim were not informed about the death and when they got information they proceeded to sasural of the victim, but, found the house locked and the accused persons fleeing away. It was learnt that they have proceeded to burning ghat. At burning ghat prosecution party got information that the dead body of a female has been cremated. Then the informant went to the Police Station for lodging the first information report at about 03.00 p.m. and, against, he went to Police Station on 21.06.1992, but, daroga did not record the case, thereafter, he visited Piro Police Station on 22.06.1993 and on 23.06.1993 he met with the Deputy Superintendent 4 of Police in the morning to whom he gave his typed written copy of the allegation and the case was recorded on the endorsement of the Deputy Superintendent of Police. He has proved the said typed report with his signature marked as Exhibit 11. 7. The defence has also adduced oral and documentary evidence and the case of the defence is that the victim was admitted in Malti Hospital, Arrah, on 18.06.1993 and died on 20.06.1993 at about 01.00 a.m. and was under the treatment of Dr. Gauri Shanker Prasad and she was suffering from hysteria and metal depression and was treated for the same before her marriage and she used to take medicine regularly and got ill due to taking of the over dose of the medicine for which she was taken to Malti Hospital, Arrah, where she succumbed to injury and regarding which the information was given to the prosecution party. Since, the informant and the prosecution party after the death of the victim were demanding the return of her jewellery for which there was verbal altercation and then the prosecution party has on due deliberation lodged the police case falsely implicating the accused persons and no occurrence, as alleged, occurred. 8. The defence has also adduced D.Ws. 1, 2, 3 and 4 and also proved Exhibit “A” series, prescription regarding the treatment of Meena Devi, Exhibit “B” the affidavit filed by Md. Ismail, Exhibit “C” the discharge slip of Malti Hospital and Exhibit “D” series are the letters said to have been written by the victim Meena Devi. 9. The trial Court, taking into consideration the evidence, both, oral and documentary, held that the marriage was solemnized 5 within seven years of the occurrence and the victim was subjected to cruelty for non-fulfillment of the demand. It was, further, held that the defence version that the deceased had taken over dose of the sleeping pills is not substantiated as there is no cogent evidence to accept the defence. The discharge certificate of Malti Hospital Exhibit “B” only mentions that she was suffering from any frantic shock, but, the doctor, who treated her, has not been produced to prove the fact that the victim died due to over dose of the sleeping pills. The trial Court, further, held that merely because the accused persons have taken the victim to hospital does not absolve them of their responsibility to explain or exonerate them from the prosecution of unnatural death, under the facts and circumstances, hence, held that since maike people not informed and dead body disposed in very haste and, hence, the three ingredients having established to raise a presumption under Section 113B of the Evidence Act. 10. The learned counsel for the appellants, however, contended that the appellants have taken the care of taking the victim to the hospital and has taken the stand that the parents were informed and has submitted that the taking the victim to the hospital, itself, shows the bonafide of the prosecution party. It has, further, been contended that in the complaint petition though there is allegation that a demand was made regarding the scooter or Rs.20,000/- in cash by the husband and father-in-law of the victim at the time of marriage, but, in the evidence the allegation of demand subsequent to the marriage has been alleged against the appellants as omni bus and general in nature and the allegation regarding the subjecting cruelty 6 against the accused persons are also general and omni bus, hence, the evidence regarding the demand and subjecting cruelty for non- fulfillment of the demand against the family members has not been substantiated with specific allegation and, hence, the evidence against other family members other than husband has neither been specified nor specifically stated and the appellants have explained their bonafide by the treatment of the victim in hospital. 11. The learned counsel for the State, however, contended that the prosecution has specifically alleged and proved the case of the prosecution and the three ingredients having been established the prosecution under Section113B of the Penal Code comes to play the role of being guilty of the appellants and there is nothing to interfere with the order of conviction recorded by the lower Court. 12. However, taking into consideration the respective submissions I proceed to consider the evidence. 13. However, the conviction has been recorded under Sections 498A and 304B of the Penal Code and 4 of the Dowry Prohibition Act, however, so far the marriage is concerned, it is admitted fact that the marriage was solemnized on 22.05.1989 and it has not been challenged and the occurrence is or the year 1993 and, hence, the allegation made within seven years from the date of marriage. However, so far the death of the victim is concerned, it has not been established that whether the death was by poisoning or by intake of excessive medicine. However, from the nature of the evidence it is established that the death was while the victim was at 7 sasural under the control of the husband and the husband is required to explain the cause of death. The case of the defence that the victim was admitted to the hospital on 18.06.1993 and died on 20.06.1993 how it has been asserted that the prosecution party learnt about the death on 20th June, 1993, by some other sources and then they proceeded to the sasural, but, found the accused persons absconding and then proceeded to make out a search and even went to the burning ghat, but, did not find and it was learnt that a dead body of a female has been cremated and learnt that she has been done to death by poisoning. However, the prosecution evidence about the fact that they learnt about the poisoning has not been established. But, the circumstance emerges that the victim died. The case of defence is that she was treated at hospital were she died and she was cremated, but, neither the post mortem examination was done nor the public authority were informed about the death. The treatment was stated to have been at Malti Hospital and though the discharge slip and the prescription has been proved, but, the doctor, who treated the victim has not been examined. The parents of the victim were not informed though a plea has been taken by the defence that the appellants were informed and they attended the funeral and the police case has been instituted for return of the jewelleries of the victim. However, this fact is brought on record by way of suggestion, but, no evidence has been adduced to the effect regarding the attending of funeral by the parents of the victim whereas the prosecution party specifically asserted though the defence has adduced D.Ws. 1 and 3, the Compounder of Malti Hospital and has proved the discharged ticket 8 and the prescription, but, it has not mentioned the cause of death. More over a cause of death or opinion of the doctor can not be proved by a formal witness, but, the opinion of the doctor is required to be proved by the oral evidence of the doctor, itself, and, hence, the defence has surged it’s responsibility in establishing regarding the death of the victim in the hospital and, hence, having regard to the facts and circumstances it can will be inferred that the death of the victim was in suspicious circumstance and for which no valid explanation or evidence has been brought by the defence and the prosecution has been able to establish that the death is in suspicious circumstance. 14. However, with regard to the allegation about the demand of dowry or subjecting cruelty for non-fulfillment of the demand concerned, the dowry has been defined as any demand even at the time of marriage or after the marriage and here the allegation is that a demand was made at the time of marriage, itself, and it continued even after the marriage though there is allegation of subjecting cruelty and for the non-fulfillment of the demand though the witnesses, P.Ws. 3, 4 and 6 have alleged that there was demand and subjecting cruelty for non-fulfillment of the demand and it has also been asserted that the victim whenever used to come to naiher used to disclose about the subjecting cruelty for non-fulfillment of the demand. However, so far the demand and subjecting cruelty is concerned, it is omni bus and general. However, no specific assertion in the evidence about subjecting cruelty is specific against father-in- law, mother-in-law and the brother-in-law. However, with respect to 9 the husband who has the separate liability and responsibility and, hence, having regard to the fact that the father-in-law, mother-in-law and brother-in-law and husband of the victim are concerned, since, there is no specific allegation or evidence about the demand and subjecting cruelty and, hence, they are required to be given the benefit of doubt and, hence, I find and hold that the prosecution has not been able to prove the charges under Sections 498A and 304B of the Penal Code and 4 of the Dowry Prohibition Act against appellants 1, 2 and 3, hence, are ordered to be acquitted. However, so far the husband is concerned, who is appellant no. 4, the prosecution has been able to prove the charges beyond reasonable doubts as three ingredients of Section 304B of the Penal Code have been prove and no acceptable explanation has been given and, hence, the prosecution under Section 113B of the Penal Code is attracted against the husband and, hence, the order of conviction and sentence recorded against appellant no. 4 is confirmed. 15. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 17th day of November, 2011, N.A.F.R., S.A.