Criminal Appeal (SJ) No.164 of 1995 With Criminal Appeal (SJ) No. 215 of 1995 **** Against the judgment, dated 08.08.1995, passed by Sri Ram Nath, Additional Sessions Judge, I, Saharsa, in Sessions Case No. 15 of 1991 **** 1. Someshwar Mishra, son of Saktinath Mishra 2. Smt. Gauri Devi, wife of Shri Sommeshwar Mishra, Both residents of village Sihaul, P.S.Bihra, district Saharsa .. Appellants (in Cr. Appeal (SJ) No. 164/95) 3. Pramod Mishra @ Parmod Mishra, son of Somneshwar Mishra, resident of village Sihaul, P.S.Bihra, district Saharsa .. Appellant (in Cr. Appeal (SJ) No. 215/95) Versus The State Of Bihar .. Respondent ( in both the cases) **** For the Appellant .. Mr. Suraj Narayan Sinha, (in both the cases) Sr. Advocate with M/S Rakesh Kumar Sinha & Mira Kumari, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP (in both the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellantd and the State. 2. These two appeals are being heard together and disposed off by this common judgment as both arise out of same 2 judgment passed by Shri Ramnath, Additional Sessions Judge, I, Saharsa, in Sessions Case No. 15 of 1991, by which he has convicted the appellants Someshwar Mishra of Cr. Appeal (S.J.) No. 164 of 1995 and Pramod Mishra of Cr. Appeal (S.J.) No. 215 of 1995 for offence under Sections 3 and 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for six months and, further, convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for two years, further, convicted under Section 201 of the Penal Code and sentenced to undergo rigorous imprisonment for three years and has, further, convicted under Section 304B of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. The appellant, Gauri Devi, of Cr. Appeal (S.J.) No. 164 of 1995 has, further, been convicted under Section 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for six months and has, further, been convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for three years, however, it has been ordered that all the sentences, against the convicts, shall run concurrently. 3. The prosecution case is in three parts. The first part of the prosecution case is that Rani Devi, the deceased, was married with Pramod Kumar, appellant, son of Someshwar Mishra (appellant). After marriage, the deceased was blessed with two children before duragaman. After duragaman there was demand of Rs.51,000/-. The deceased was subjected to cruelty for non-fulfillment of the demand of said Rs.51,000/-. The deceased used to report about the demand to 3 naiher people. About ten days prior to the occurrence victim, Rani Devi (deceased) ran over to naiher from sasural being vexed with the demand and subjecting cruelty. She disclosed about the subjecting cruelty for non-fulfillment of demand to her parents, like abuse and threat to kill for non-fulfillment of the demand. About 4-5 days prior to the occurrence, the victim, Rani Devi (deceased), further, sent to sasural after assurance and persuasion of Gaya Mishra, a sasural people. 4. The second part of the occurrence that on 06.07.1990 at 08.00-09.00 a.m., the co-villagers of the appellant (Pramod Kumar @ Pramod Mishra) saw smoke coming out from the matrimonial house of Pramod Kumar @ Pramod Mishra and the deceased. The villagers found some commotion in the courtyard and they rushed to the matrimonial house of Pramod Mishra and the deceased, Rani Devi. They found the door closed and found Rani Devi in burnt and unconscious stage. The villagers entered the room through roof and they took her out of the room in burnt unconscious stage, after setting off fire. The husband also was in village came there. The villagers arranged jeep. The husband, Pramod Mishra, took the deceased on jeep in pretext of treatment of the deceased. However, the deceased was neither treated nor any public authority was informed nor any intimation was given to the naiher people of the deceased. Her dead body was disposed in ditch by the side of B.S. College. 5. The third part of the prosecution case is that the Principal and President of B.S. College were sitting in the college at 4 about 05.30 p.m. While they were in college they noticed that a jeep came and disposed of the dead body wrapped in a quilt in the ditch in the south east corner of B.S. College. They found the dead body in ditch. They informed the police on telephone. The police received the information at 06.10 p.m. on 06.07.1990. The police rushed to B.S. College after making the station diary entry and reached B.S. College at 06.25 p.m. on 06.07.1990. The Sub Inspector of Police (P.W. 9) reached along with Constables Bishwanath Ram and Khakhan. The dead body was found there, which was taken out from the ditch and inquest report was prepared at 06.30 p.m. before the Principal and President of B.S. College. The mother of the deceased also reached there at the time of making the inquest and identified the dead body. 6. The mother of the deceased got rumour about the murder of Rani Devi the co-villagers have relation in the sasural of Rani Devi. She proceeded on rickshaw to enquire. In way she learnt about the dead body at B.S. College. She reached at B.S. College. The police prepared the inquest report, which was signed by the Principal (P.W. 2) and the President, Rajeshwar Yadav (P.W. 7), of B.S. College. 7. The statement of the mother of the deceased was recorded at 07.30 p.m. On the basis of the said written report, the first information report was lodged and investigation proceeded. The post mortem of the dead body of the deceased was conducted by P.W. 6, Dr. Arun Kumar Singh, on 07.07.1990 at 01.20 p.m. The doctor (P.W. 6) found deep burn injury on the person of the deceased on both extremities of lower part, foul smell coming out of the dead body, skin 5 stripped of the extremities and the burn was found to be eighty per cent. The death was due to shock and haemorrhaged by the above injuries. The police, after investigation, submitted the charge sheet and cognizance taken. Subsequently, the charge was framed before the Court of Sessions under Sections 304B and 498A of the Penal Code and 3 and 4 of the Dowry Prohibition Act. 8. During the trial nine witnesses examined on behalf of the prosecution and eleven witnesses examined on behalf of the defence. 9. The defence of the accused persons is that the marriage was solemnized about ten years back to the occurrence and the accused persons have falsely been implicated and there was no demand of Rs.51,000/- as dowry. The said alleged demand is not a demand of dowry, but, a demand for expense for the study for preparation nor was the deceased subjected to cruelty. The relationship between the deceased and the appellant, Pramod Mishra the husband of the deceased, was good. The further defence of the accused person is that one day prior to the occurrence, the father of the deceased went to sasural of the deceased and on his visit the deceased got sentimental and committed suicide. The death is not in suspicious circumstance. The, further, defence is that Someshwar Mishra was married in village Mahesi and has got land from sasural and has also purchased his own land there and used to live at Mahesi along with his wife to look after his old aged mother-in-law. He was separate from accused, Pramod Mishra. He had no concern with Pramod Mishra. Pramod Mishra also 6 at the time of occurrence was not at his home and was in the paddy field and when he came he found his wife unconscious. 10. The trial Court taking into consideration the evidence of P.Ws. 5 and 8, the father and mother of the deceased, who deposed that the marriage was solemnized on 30.05.1985, within six years of the date of occurrence, there was demand of Rs.51,000/- as dowry and victim subjected to cruelty for non-fulfillment of the demand of dowry and found the death in suspicious circumstance to raise the presumption for dowry death and, further, held that appellants could not make out a probable defence to rebut the presumption and, hence, convicted and sentenced the appellants, as mentioned above. 11. The learned counsel for the appellants, however, contends that the ingredients of the offence under Section 304B of the Penal Code has not been established as the marriage was solemnized beyond seven years and subjecting cruelty for demand of dowry has not been established. The demand of Rs.51,000/- was only for study of Pramod Mishra is not a dowry demand. It has, further, been contended that the deceased committed suicide. The inquest report has been prepared at 06.30 p.m. whereas the fardbeyan has been recorded at 07.30 p.m. and the first information report was drawn at 07.30 p.m. Hence, the fardbeyan is hit by Section 161 of the Criminal Procedure Code as the statement of mother of the victim was recorded after the inquest report and, hence, can not be treated as fardbeyan. The first information report was sent to the Magistrate after three days and, hence, there is violation of Section 157 of the Criminal Procedure Code 7 which castes doubt on police investigation and the drawing of first information report was antedated. There is interpolation in the dates in the first information report also indicates that fardbeyan and the first information report is a suspicious document. It has, further, been contended that the inquest report neither mentions the name of the accused nor mentions the name of the witnesses nor the details of the occurrence. Hence, the first information report lodged on the basis of the fardbeyan is a development in the prosecution case and is not required to be relied upon and the first information report can not be treated as first information report of the case. It has, further, been contended that if the ingredients of the offence under Section 304B of the Penal Code has not been established then presumption under Section113B of the Penal Code can not be drawn for the guilt of the accused persons. The appellants have established the defence about their absence from the place of occurrence is fit to be accepted. 12. The learned counsel for the State, however, contends that there is ample evidence against the appellants. The prosecution has proved that the marriage was solemnized within seven years of the occurrence. The deceased was subjected to cruelty for non-fulfillment of the dam and the death has been established to be in suspicious circumstance. It has also been established from the evidence of P.Ws. as well as D.Ws. that the deceased was burnt in the matrimonial house of the victim. Pramod Mishra took her on jeep for treatment, but, no evidence of the defence about her treatment or even about reporting the matter to the Public Authorities and disposal off the dead body on the 8 same day by throwing it in a ditch, itself, indicates the involvement of the husband and the death was in suspicious circumstance. The accused persons did the occurrence for concealing the evidence to protect the offender and, hence, the prosecution has proved it’s case beyond reasonable doubt. 13. However, parties are at variance on fact on point of date of marriage and demand of dowry and subjecting cruelty for non- fulfillment of demand of Rs.51,000/- as dowry as well as death in suspicious circumstance. P.W. 5 is the father of the deceased and has deposed that the marriage was solemnized within seven years. He has stated that he solemnized the marriage of the deceased, Rani Devi, with Pramod Mishra, the son of Someshwar Mishra, on 30th May, 1985, on ekadasi, on Monday. He in his cross examination has stated that duragaman was held after four and half years. P.W. 8, the mother of the deceased, stated that the marriage was solemnized about 5-6 years prior to the occurrence. The victim was murdered about three years prior to date of deposition on 15.06.1993 and Rani had two issues. In her cross examination she has stated that the first issue of Rani was after one and half years of the marriage and second issue was after one and half years of the first issue. At the time of death of Rani the first issue was aged about four and half years and, hence, the appellant stood the test of cross examination that the marriage of the deceased was six years prior to the occurrence. 14. However to the contrary the appellant relied upon the evidence of P.W. 1, who has stated in his cross examination that 9 marriage was solemnized about 10-12 years back and, further, the evidence of D.W. 4, who claims to be a Pandit having solemnized the marriage of the deceased with Pramod Mishra and deposed that the marriage performed on 21st May, 1981. However, this witness stated in his cross examination that his statement was not recorded by police. To a Court’s question he has stated that he can not say when his gauna was performed. He has, further, said that he can not say on which date his son, Purshotam Mishra got married. He has, further, stated that he can not say when and in which year the daughter-in-law of Someshwar Mishra died. Hence, the evidence of D.W. 4 does not inspire confidence as has not stood the test of cross examination nor he clams to be purrohit of appellant. However, taking into consideration, the evidence of P.Ws. 4 and 8, who have stood the test of cross examination and who were the father and mother of the deceased and, hence, their evidence can not be discarded or disbelieved in contrast to the evidence of P.W. 1 and D.W. 4 and, hence, it can well be inferred that the marriage was solemnized on 30th May, 1985,within seven years from 06.07.1990, the date of occurrence. 15. The next question is regarding the subjecting cruelty on deceased for non-fulfillment of demand of Rs.51,000/- as dowry. P.Ws. 5 and 8 have stated that there were demand of Rs.51,000/- and deceased was subjected to cruelty for non-fulfillment of the said demand. It is true that the demand said to have been made after duragaman. P.W. 5 has stated that after 4-5 years of the marriage there was duragaman. Prior to duragaman there was no demand. After 10 twenty days of duragaman the demand of Rs.51,000/- was raised. However, with regard to demand the deceased had to run several times to naiher. However, this witness has denied the duragaman and deposed that this is not a fact that Pramod mishra was preparing for I.A.S. It is argued on behalf of the defence and submitted that since the demand was for study so it was not a demand of dowry. However, mere suggestion there is nothing to show or brought in evidence that the demand was really made for the study or Pramod Mishra for preparing for I.A.S. nor there is evidence that Pramod was ere preparing for I.A.S. or ever appeared in I.A.S. The demand was only after duragaman, apparently in relation to marriage. However, the dowry has been defined under the Dowry Prohibition Act which describes that any demand at about or even after the marriage in relation to marriage is a dowry demand. However, a demand was made after duragaman apparently is a demand in relation to marriage, however, defence raised by way of suggestion that it was for study. However, P.Ws. 4 and 5, in their evidence, have stated that the said demand of Rs.51,000/- was made and the deceased reported several time and was compelled to run to naiher in relation to pressing demand. Lastly about 9-10 days prior to the occurrence she was, again, compelled to run to the naiher and reported about the subjecting cruelty for non-fulfillment of demand, she was apprehensive of being burnt to death. However, the informant unable to foresee the evil design, send the deceased persuading her to go to sasural and, hence, the prosecution has been able to prove subjecting cruelty for non-fulfillment of the 11 demand as dowry just before the occurrence. 16. The third point is that P.W. 1 as well as D.Ws. 3, 5, 6 and 10 has specifically stated that they saw the smoke coming out from the house of Pramod Mishra and there was hulla and hearing some commotion in the courtyard of Pramod Mishra went to the house of Pramod Mishra. They found the deceased in a room which was burning and then they entered into the room through the roof and found the deceased in burnt stage and then she was taken out. Pramod Mishra was not though seen there at the time when witnesses reached, but, immediately reached there and, hence, he was there in the village and then it was decided to save her. From the evidence of D.Ws. 5 and 6, it is apparent that a jeep was called for taking the deceased for treatment to save her and then Pramod Mishra took the deceased in the pretext of treatment for hospital on 06.07.1990 in the morning. Hence, there is clear evidence that the deceased found in burnt stage in a room of Pramod Mishra and the villagers found her in burnt unconscious stage and Pramod Mishra took her for treatment, but, the defence has not brought any evidence that she was ever treated by any of the doctor or in any of the hospital nor it has been brought in evidence or record that the matter was reported to a Public Authority regarding her treatment or recording the accident rather it has come in evidence that the dead body was thrown in a ditch near B.S. College, Simraha, hence, it can well be inferred the hand of Pramod Mishra death is in suspicious circumstance. There is no rebuttal regarding these circumstances. There is no explanation from Pramod Mishra why he has not treated 12 the deceased or reported the matter to the Public Authority. 17. P.W. 2 is the Principal of B.S. College. He has deposed that on 06.07.1990 at 05.30 p.m. he was sitting in the verandah of the College along with the President, Rajeshwar Yadav, P.W. 7. A jeep with two persons came from the side of Saharsa and three away a dead body wrapped in quilt in the south east corner of B.S. College. They saw the dead body and informed the police on telephone. The police came, inquest report was prepared and proved his signature on the inquest report. The President of the College, Rajeshwar Yadav, has been examined as P.W. 7 and was tendered. P.W. 9, Gaya Ram Hansda, has stated that on 06.07.1990 he received information on telephone about the dead body lying at B.S. College. He proceeded for B.S. College after recording sanha and reached at B.S. College at 06.25 p.m. He took out the dead body from the ditch and prepared the inquest. The mother of the deceased reached there and identified the dead body. He recorded her statement and treated it as a fardbeyan. He has proved the fardbeyan in his writing and the signature of Devta Devi, which has been marked as Exhibit 6. He has also proved the first information report, marked as Exhibit 7. He sent the dead body for post mortem examination to Saharsa Hospital. The mother of the deceased, P.W. 8, has deposed that she heard the rumour about the death, proceeded on rickshaw to enquire and in way she learnt about the dead body and reached and identified the dead body and there the inquest report prepared and the statement was recorded. The mother of the deceased, P.W. 8, has, further, supported the prosecution case about 13 the marriage within six years of the occurrence and subjecting cruelty for non-fulfillment of the demand and P.W. 5, the father also supported the prosecution case that the marriage solemnized on 30th May, 1985, and the deceased was subjected to cruelty for non-fulfillment of the demand. 18. Hence, taking into consideration the entire evidence, there is clear evidence that the marriage solemnized within seven years, there was demand of Rs.51,000/- as dowry in relation to marriage, the deceased was subjected to cruelty for non-fulfillment of the demand and Pramod Kumar @ Pramod Mishra on 06.07.1990 as found in the village whereas the deceased was found in burnt state in the matrimonial house and the villagers taken out the deceased from the room, arranged the jeep. P.W. 1 has supported the prosecution case about the smoke coming out and he reached the matrimonial house where the deceased was found in burnt unconscious stated and the defence witness have also supported the prosecution case about the deceased found in burnt state and D.Ws. 5 and 6 have supported the prosecution case that the deceased was found burnt in the matrimonial house and they arranged the jeep and the deceased was taken on jeep and neither any public authority was informed nor any treatment was given to the deceased nor the parents were informed and the dead body was found disposed in a ditch near B.S. College and, further, the post mortem examination suggest that deceased was done to death due to burn injury. This evidence, itself, sufficient to hold that the death of the deceased caused in suspicious circumstance and the husband is 14 primarily responsible for the offence as well as for offence under Sections 304B and 498A of the Penal Code and 3 and 4 of the Dowry Prohibition Act. 19. However, the criticism has been raised by the learned counsel for the appellants that first information report was lodged on 07.07.1990, but, the same was received by the Magistrate on 09.07.1990 and, hence, there is delay in sending the first information report to the Chief Judicial Magistrate and, hence, there is violation of Section 157 of the Criminal Procedure Code and there is interpolation in the first information report about the date and time of lodging of the first information report. Hence, the argument developed by the learned counsel for the appellants that the interpolation and belated dispatch of the first information report to show that the investigation was not just fair, therefore, the prosecution case be looked with great suspicion, however, the argument is not acceptable. Section 157 of the Criminal Procedure Code requires that the first information report be sent forthwith by the Police Officer to the concerned Magistrate empowering to take cognizance. This provision has been made to keep the Magistrate inform of the investigation of the cognizable offence to enable the Magistrate to control the investigation and give appropriate direction under Section 159 of the Criminal Procedure Code. However, under the facts and circumstances, the police informed about the dead body having been disposed off. The police reached the place of occurrence at 06.25 p.m. on 06.07.1990, prepared the inquest report at 06.30 p.m. regarding the dead body of the deceased. The dead body 15 was immediately sent for post mortem examination along with the inquest report with Constables Bishwanath Ram and Khakhan,. The post mortem was done on 07.07.1990 at 01.20 p.m. The fardbeyan was recorded at 07.30 p.m. on 06.07.1990 and the first information report was immediately lodged at 12.30 a.m. on 07.07.1990 and the investigation proceeded. The burnt remains of the house were searched and seizure list prepared on 08.07.1990. Hence, merely because the first information report not received by the Chief Judicial Magistrate forthwith is no ground to reject the prosecution case and to denounce and discard the cogent, reliable and trust worthy evidence on technical grounds. However, the first information report lodged on 07.07.1990 and the said was received by the Chief Judicial Magistrate on