Criminal Appeal (SJ) No.416 of 1998 Against the judgment and order of conviction and sentence dated 31. 10. 1998, passed by Shri V. N. Jha, 2nd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 454 of 1995. Shivshankar Mandal, son of Late Kallu Mandal, resident of Village- Rashidpur, P.S. Pirpainty, District- Bhagalpur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant : Mr. Dhirendra Nath Jha, Advocate. Mr. Manoj Kumar Jha, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONBLE 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 304 B of Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted under Section 3 and 4 of Dowry Prohibition Act, but no separate sentence has been awarded for this offence. 3. The prosecution case as alleged by the informant that his sister Phokli Devi was married with Shiv Shankar Mandal about four years back. After marriage, she went to her Sasural then she was subjected cruelty for non-fulfillment of demand of money agreed 2 to pay in Tilak and she even subjected to assault to bring money from the brother. Her sister disclosed about demand and subjecting to cruelty with threat to kill. He has further stated that on 16. 04. 1994, he along with five persons were going to see a girl for his marriage then he thought to take with them the husband of his sister and when they reached the house of his sister then Gotni of his sister disclosed that sister of the informant died four days prior and the when prosecution party asked as to why they did not inform them, then she loose temper and said that news has already been sent. When they enquired about the matter they learnt that his sister has been done to death and dead body has been disposed of. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. After commitment, charge was framed under Sections 304 B, 201, 498 A of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act. 5. During trial, eight witnesses were examined on behalf of the prosecution and three witnesses were examined on behalf of the defence apart from various 3 documents marked as Ext. 1. Considered that P.W. 7 supported the prosecution case that marriage solemnised within four years and P.W. 5 and 6 supported the prosecution case about subjecting cruelty and non- fulfillment of demand of Tilak and not informed. 6. The defence however adduced evidence as D.W. 1 and 2 and taken the plea that victim died due to ailment and proved Ext. A the Death Certificate. 7. The trial court taking into consideration the evidence of witnesses held that ingredient of Section 304 B has been proved by P.W. 5, 6 and 7, though, the accused person taken the plea of illness, but no evidence either of treatment or prescription of the deceased has been produced and death report not contained any stamp or seal and convicted and sentenced the appellant. 8. The learned counsel for the appellant however, challenged the order of conviction and sentence on the ground that witnesses are hearsay and they have not proved the place of occurrence or time of occurrence and I.O. has not been examined to prove the place of occurrence nor testify whether prosecution case that they were going to see a girl for marriage of the 4 informant in village of Dilgori in the house of Ram Swaroop Mandal. 9. Learned counsel for the State however, contends that basic ingredients on which it is relevant to prove offence under Section 304 B has been established by the prosecution and the defect pointed out by the appellant has got no relevance and the contradiction and the deficiency are not as such to disbelieve the prosecution story does not go to the root to the prosecution story to disbelieve the prosecution story. 10. On respective submission and on going to the evidence, I found the witnesses have deposed and prove the fact. P.W. 7 deposed that victim died within seven years of marriage and dead body was disposed of without informing the parents or Naihar people of the victim. Witnesses P.W. 5 and 6 stated about demand of money agreed in Tilak and subjected cruelty, prima facie established three ingredients for offence under Section 304 B. Hence onus primarily shift on the defence to rebut the presumption. However, deficiency pointed that I.O. has not been examined and place of occurrence has not been established or witnesses are hearsay or have not 5 seen the occurrence is not of significance as prosecution has not been shown any prejudiced caused to him and P.O. is not very relevant in case under Section 304 B and the witnesses relied upon are not hearsay on the point in issue. 11. Further, evidence of D.W. 2 that Ram Swaroop Mandal has got no daughter itself does not absolve the case of the prosecution who has established three ingredients and deficiency and contradiction pointed out does not go to the root to the prosecution case to shake sub stratum of the prosecution case. 12. Hence, I find and hold that prosecution has been able to prove the ingredient and defence fail to rebut the presumption and hence I find and hold that prosecution has prove its case beyond reasonable doubt. 13. Hence, I do not find any merit in this appeal to interfere with the order of conviction and sentence recorded by the lower court and hence order of conviction and sentence is hereby affirmed and the appeal is dismissed. Patna High Court, The 29 ..August, 2011. NAFR/m.p. ( Gopal Prasad, J.)