CRIMINAL APPEAL No.367 OF 2004(SJ) *** Against the judgment dated 17.05.2004 and order dated 22.5.2004 passed by the Additional Sessions Judge, FTC No.5, Saharsa, in S.C. No. 79 of 1994 *** 1. Md. Mokhtar Hussain @ Muktar S/o Bajul 2. Md. Sajjad Hussain @ Sajjad S/o Bajul 3. Md. Sajul S/o late Nazim (Dead) All residents of village- Palrahi, P.S. Sonbarsa, District- Saharsa ….Appellants Versus STATE OF BIHAR ...Respondents *** For the appellants : Mr. Jawahar Pd. Singh, Advocate For the State : Mr. Jharkhandi Upadhyaya, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The present appeal has been filed by the appellants for having been convicted under section 304-B and 201 of the Indian Penal code and sentenced to rigorous imprisonment for ten years and two years respectively by the Additional Sessions Judge, Fast Track Court No.5, Saharsa, in Sessions Case no.79 of 1994. 2. During the pendency of the present appeal, appellant no.3 Md. Sajul S/o Late Nazim died and the appeal as against him abated by order dated 3.7.2009. 3. The present appellants i.e. appellant nos. 1 and 2 happen to be the Dewar of the deceased and by the same judgment the husband Md. Mujahid had been convicted, who filed appeal numbered as Criminal Appeal No.440 of 2004 which was heard by another Bench of this court and the appeal was allowed on 13.4.2009. 4. The prosecution case as per Md. Abdul Mozeeb is that his datuther Sajda Khatoon was married to Md. Mojahid and thereafter he learnt that she had done to death by her in-laws and cremated without any information to them. In 2 the first information report, there was no allegation of any demand of dowry etc. but subsequently, a protest petition was filed, wherein, it was stated that the marriage had taken place about three years ago and the accused persons were demanding cow, buffalo and motorcycle and on account of non-fulfillment of the same the deceased was subjected to cruelty and even earlier she had tried to commit suicide on account of such cruelty. 5. During trial, initially charge was framed for the offence under sections 302/34 and 201 of the Indian Penal Code but later on charge was amended and section 304-B of the Indian Penal Code was added. 6. The prosecution in all examined five witnesses, out of whom, PW 1 is Md. Khaja, P.W.2 is Sk. Neyamat Ali, P.W.3 is Karamat Ali Mian, P.W.4 is Abdul Quddus, and P.W. 5 is Abdul Mojid, the informant. P.W. 1 Md. Khawaja was the uncle of the deceased and was suggested that the marriage had, in fact, taken place ten years ago but he admitted that the deceased had a son. P.W.2 Sk. Niyamat Ali has stated that he did not know the exact date and year of the marriage. P.W.3 Karamat Ali Mian and P.W.4 Abdul Quddus have also merely stated about the non-fulfillment of the demand of dowry and the deceased having been subjected to cruelty on account of non-fulfillment for the same. 7. The trial court after full assessment of the prosecution case concluded that the prosecution has failed to substantiate its charge under section 302 of the Indian Penal code and acquitted the accused persons of the said charges. Evidently, the Investigating Officer has not been examined in the present case nor is there any medical corroboration about the manner of death of the deceased. 8. Admittedly, in the first information report, the informant had not alleged anything about the demand of dowry having been made by the accused persons and it is only later on when the protest petition was filed on 13.10.1992 after eleven days of the occurrence the case demand of dowry and cruelty on 3 account of non-fulfillment for the same was alleged. This apparently is an afterthought to make the case fall within the purview of section 304-B of the Indian Penal Code and lighten the burden of proof upon the prosecution. The consistent suggestion to the prosecution witnesses is that the marriage of the deceased had taken place more than ten years ago and none of the prosecution witnesses have given the exact date or year of the marriage, thus have failed to discharge its initial duty to prove that death had taken place within seven years of the marriage. In absence of the same, the entire edifice of the prosecution case that the case was punishable under section 304-B of the Indian Penal Code fails in view of the fact that the essential ingredients of section 304-B of the Indian Penal Code is that the unnatural death should have occurred within 7 years of the marriage. 9. While considering the case of the husband of the deceased, this court has come to the conclusion that the prosecution not having been able to prove its case beyond all reasonable doubt he deserves to be given benefit of doubt. The case of the present appellants, who are the Dewars of the deceased, is on better footing in the sense that apart from there being no specific allegation against them and by relation if the presumption drawn against the husband was not enough to convict him, the appellants way of relationship deserve to be acquitted likewise. 10. In the result, the appeal is allowed and the conviction and sentence of the appellants are set aside. Since appellant no.1 Md. Mokhtar Hussain @ Muktar and no.2 Md. Sajjad Hussain @ Sajjad are on bail, they are discharged from the liabilities of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 30th October, 2009 NAFR/ JA/-