IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 58 of 1999 WITH Criminal Appeal (SJ) No. 65 of 1999 ~~~~~~ Against the judgment of conviction dated 16.03.1999 and order of sentence dated 19.03.1999 passed by Sri Rameshwar Tiwary, learned Additional Sessions Judge – 3rd, Madhubani in Sessions Trial No. 102/1996/200/1996. ~~~~~~ 1. Sudhist Narain Jha @ Sudhist Jha, Son of Late Chiranjivi Jha. 2. Devta Devi, W/o. Sudhist Narain Jha. Both resident of village – Sahuria, P. S. – Andharatharahi, Dist. – Madhubani. .... .... Appellants (In Criminal Appeal (SJ) No. 58 of 1999). . Pravin Jha, Son of Sudhist Narain Jha @ Sudhist Jha, resident of village – Sahuria, Police Station – Andharatharahi, District – Madhubani. .... .... Appellant (In Criminal Appeal (SJ) No. 65 of 1999). Versus The State Of Bihar .... .... Respondents (In both the Appeals). ~~~~~~ Appearance : For the Appellants : Mr. Ajay Kumar Thakur, Advocate. Mr. Amit Kumar, Advocate. For the Respondents : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard. 2. These two appeals have been heard together and are being disposed of by this common judgment as both the appeals arise out of judgment of conviction and sentence dated 16.03.1999 and 19.03.1999 respectively passed by Sri Rameshwar Tiwary, learned Additional Sessions Judge – 3rd, Madhubani in Sessions Trial No. 102/1996/200/1996 by which two appellants, namely, Sudhist Narain Jha @ Sudhist Jha and Devta Devi of Cr. Appeal (SJ) No. 58 of 1999 and one appellant, namely, Pravin Jha of Cr. Appeal (SJ) No. 65 of 1999 have been convicted under 2 Sections 304B and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304B of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years for the offence under Section 201 of the Indian Penal Code. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case as alleged by the informant (P. W. 8) Uttim Paswan, Chaukidar is that while he was returning from his village at about 3:00 A.M. on 29.08.1995, he saw the light burning in the orchard of Praveen Jha. He went there and saw Pravin Jha, Sudist Jha, Mohan Jha, Bahadur Jha, Baidyanath Jha and Kashi Nath Jha burning a dead body. He asked them that whose body is being burnt in this night. Then on inquiry Sudist Jha disclosed that his daughter-in-law Arti Devi the wife of Pravin Jha had died in the last night at 11:00 P.M. due to the snake bite and so they are burning a dead body. However, when he came to village Sahuriya then in the morning there was rumor that the wife of Pravin Jha had died due to poisoning as there was quarrel in the family. The fardbeyan (Ext. 4) of the informant Uttim Paswan (P. W. 8) was recorded by P. W. 9 Ram Niwas Chaudhary. On the basis of said fardbeyan the First Information Report (Ext. 5) was lodged and investigation proceeded. The police after investigation submitted charge-sheet for the offence under Section 304B and 201 of the Indian Penal Code on which cognizance was taken and case was committed to the court of Sessions. The trial proceeded after framing of the charge for the offence under Sections 304B and 201 of the Indian Penal Code. 4. During the trial ten witnesses were examined by the prosecution. P. W. 1 is the brother of the victim, P. W. 2 is the uncle, P. W. 3 is the father, P. W. 4 is the Ex-Mukhiya, P. W. 5 is the mother of the victim. They have supported the prosecution case that the marriage of the victim solemnized on 27.01.1989 and after Duragaman in 1991 the victim went to Sasural. P. Ws. 3 and 5 have supported 3 the prosecution case that there was demand of motor-cycle and P. W. 3 has supported the prosecution case about subjecting cruelty for non-fulfillment of the demand. P. W. 8 has stated that the victim was done to death and dead body was disposed off in orchard at wee hour and on inquiry it was disclosed that the victim died out of snake bite but the rumor in the village about death by poisoning lead to lodge the First Information Report on fardbeyan of the informant and the matter informed to the Naihar of the victim and P. W. 2 informed P. Ws. 1 and 3 the brother and father of the victim. Apart from the documentary evidence the defence also adduced six witnesses. 5. The trial court took into consideration the evidence of P. W. 1 the brother of the victim Arti Devi. He has stated that Arti Devi was married with Praveen Jha on 27.01.1989 and after “Duragaman” she went to her husband’s house and thereafter she used to come to her parent’s house. On 29th August, 1995 he was informed by Rudra Kand Jha @ Gopal Jha P.W. 2 that his sister done to death by burning by the hands of the appellants and then rushed to his village. Then he went to the local police station and has stated in his evidence that there was demand of motor-cycle and cash and his sister was subjected to cruelty for non-fulfillment of the said demand. 6. P. W. 2 has supported the prosecution case about the marriage of Arti Devi in the year 1989 with Praveen Jha and has stated that one Uttim Paswan, Chaukidar of Sahuriya village came in his place and gave information that Arti Devi was done to death by the hands of the appellants and then he gave the said information to Vinod Jha (P.W. 1) on telephone. 7. P. W. 3 is the father of the deceased and supported the prosecution case about the marriage of the victim Arti Devi with Praveen Jha in January, 1989 and “Duragaman” in the year 1991 and has supported the prosecution case about demand of motor-cycle and he expressed his inability to fulfill the demand. He has 4 also supported the prosecution case about subjecting cruelty for non-fulfillment of the said demand and on receiving information of subjecting cruelty, he rushed and asked the accused persons to behave properly with Arti Devi. 8. P. W. 4 the Ex-Mukhiya as well as the evidence of P. W. 5 the mother of the deceased supported the prosecution case about the marriage of Arti Devi in the year 1989 and the victim was subjected to cruelty for non-fulfillment of the demand. 9. The trial court also taking into consideration the evidence of P. Ws. 6 Chandra Kumar Mishra and P. W. 7 Upendra Jha claimed themselves to be the eye- witnesses of the occurrence of burning of the victim who are resident of village Bihnagar. 10. However, the learned trial court disbelieved the evidence of P. Ws. 6 and 7 doubting their presence at the place of occurrence because they are resident of far off place. However, the trial court further taking into consideration the evidence of P. W. 8 Utim Paswan who saw the burning of dead body in the orchard and has come to support the prosecution case in the fardbeyan and has supported the prosecution case as stated in the fardbeyan. 11. P. W. 9 is the I.O. Ram Niwas Chaudhary who found the remains of burnt in the house of the accused Sudhist Naraian Jha situated in the village Sahuriya and found the positive sign of burning. He also found the rooms freshly besmeared with soil, roof portion built of bamboo, burn blackening due to fire and smoke and at the time of explanation he found burnt remains of the dead body and some burnt pieces of the wood and fresh sign of cutting of the branches of the mango trees which was used for cremation of the dead body of the deceased and has proved the seizure list of the burn wood and remaining of the dead body which has been marked as Exts. 6 and 6/1 and further taking into consideration the evidence of the defence witness D. Ws. 1 to 5 who are resident of village Sahuriya and the defence also adduced 5 Exts. A, B and C series. Ext. A is the photo copy of the letter and the defence set up that the marriage was solemnized more than seven years ago and the case has been lodged for a dispute with regard to the return of the articles given by the parents of the deceased on the occasion of marriage as well as on the occasion of second marriage and hence taking into consideration the evidence the trial court held that the offence under Sections 304B and 201 of the Indian Penal Code is made out as the death of the victim was within seven years and the victim was subjected to cruelty for non-fulfillment of the demand and the death is in suspicious circumstance and hence convicted the appellants for the offence under Sections 304B and 201 of the Indian Penal Code. 12. Learned counsel for the appellants, however, contended that the appellants have challenged the marriage having performed within seven years of the occurrence. The I.O. collected burnt remains of the body of the victim and the other articles have not been sent for chemical examination. 13. The learned counsel for the appellants contended that the ingredients of offence under Section 304B of the Indian Penal Code has not been established and the appellants have challenged that the marriage solemnized more than seven years of the occurrence. The burnt remains were not sent for chemical examination nor there is evidence regarding subjecting cruelty for non fulfillment of demand of dowry soon before her death, unless it is established that the victim was subjected to cruelty soon before her death, presumption under Section 113B of the Evidence Act cannot be drawn. 14. Hence, learned counsel for the appellants contended that the prosecution has not been able to prove the charges beyond reasonable doubt. It has further been contended that out of the three appellants the one is the husband and other two are the old father-in-law and mother-in-law of the victim and in-laws may not be indicted unless there is specific overt acts regarding subjecting cruelty is 6 established and pray for a lenient view be taken under the facts and circumstances of the case. 15. Learned counsel for the State, however, contended that the three ingredients for the offence under Section 304B of the Indian Penal Code having been established by the cogent and reliable evidence and hence is required to be sustained under the facts and circumstances of the case. 16. In view of the respective submissions of the parties, the question for consideration is whether the prosecution has been able to prove the charges beyond reasonable doubts. However, it is well settled that for the offence under Section 304B of the Indian Penal Code, the prosecution is required to prove the three ingredients (i) that the marriage of the victim was solemnized within seven years of the occurrence (ii) that the victim has been subjected to cruelty by her husband or any relatives in connection with the demand of dowry soon before her death and, (iii) that the death is other wise than under normal circumstance i.e. the death has been in suspicious circumstances. If the three ingredients are proved with evidence that victim was subjected to cruelty for non-fulfilment of demand of dowry soon before the occurrence then the presumption under Section 113B of the Evidence Act attracts and at the same time if the accused proved a probable defence making out his explanation to be reasonable and consistent with the innocence then he may be absolved in the liability. 17. However, taking into consideration the evidence of P. Ws. 1, 3 and 5 who have specifically stated in their evidence that the marriage of the victim Arti Devi was solemnized on 27.01.1989 and there is nothing in their evidence in cross- examination to disbelieve them though asserted that the marriage beyond seven years. However, defence witnesses examined on behalf of the defence though have specifically stated that the marriage was solemnized beyond ten years before the occurrence. However, no specific date has been given. It is pertinent to mention 7 that the marriage has not been denied whatever bring in dispute is the date of the marriage. However, P. W. 3 is the father of the deceased, P. W. 5 is the mother and P. W. 1 is the brother of the victim and they have specifically stated that the date of marriage was 27.01.1989. P. W. 2 the uncle of the victim has also supported the prosecution case about the marriage having been solemnized in the year 1989. They are competent witnesses of marriage and their evidence is reliable and trustworthy. Hence it can well be inferred that prosecution has proved the fact that many marriages solemnized in the year 1989. The occurrence took place in the year 1995 and hence the occurrence took place within seven years of the marriage and hence I find and hold that the marriage of the victim took place within seven years of the occurrence. 18. P.W. 8 in his evidence stated that in between the night of 28th/29th, August 1995 he saw dead body of the victim was being burnt. The death of the victim has not been disputed. However, the case of the appellants is that the death was due to the snake bite. The defence of the appellants is that the death of the victim is by poison. However, after the occurrence no intimation was given by the appellants and the dead body disposed off without intimation to the parents or even the public authorities like police or doctor casts a doubt that death is in suspicious circumstance i.e. otherwise than in normal circumstance. 19. Learned counsel for the appellants, contended that the intimation was given to the female members in the village Navatoli of the deceased and the family inmates were aware whereas the father and brother of the deceased were living in Kolkata at far off place. However, P. W. 1 has specifically stated that he learnt on telephone from P. W. 2 the uncle of the victim about the death. P. W. 2 the uncle of the victim has deposed that he learnt from the Chaukidar Uttim Paswan P. W. 8 of village Sahuriya. P. W. 8 in his evidence has stated that on the same day on the direction of the Daroga he went at village Gangduar and informed the Naihar 8 people of the victim and then father and brother of the victim who were in Kolkata were informed through telephone. 20. Hence, from the evidence of P. Ws. 1, 2 and 8 it is apparent that intimation to Naihar people of the victim were not given prior to the disposal of the dead body but intimation was given by prosecution after revealing of the fact that the victim was done to death by poisoning or in suspicious circumstance without intimating the public authorities. 21. P. W. 9 is the I.O. and in his evidence supported the prosecution case. P. W. 8 has further stated that he saw the dead body was being burnt at the orchard in the night at about 3:00 A.M. and the I.O. P. W. 9 has also found the remains of burnt and burning of the house as well as orchard where the dead body was disposed of and hence it is apparent that after the death of the victim the parents were not informed and the dead body was disposed of in heavy haste without informing the public authorities like the police or the doctor when the death was unnatural death even as per the defence version that the death was due to snake bite. It can well be inferred that the death of the victim was in suspicious circumstance or otherwise than in normal circumstance and the conduct of the appellants itself indicates that the dead body was being disposed of in heavy haste and hence I find and hold that the prosecution has been able to establish that the death of the victim was otherwise than in normal circumstance i.e. in suspicious circumstance. 22. However, the three ingredients is regarding the demand and subjecting cruelty. However, P. Ws. 1, 3 and 5 have supported the prosecution case regarding the demand of motor-cycle and cash. P. W. 3 is the father of the victim shows inability to fulfill the demand. However, P. W. 1 has stated that his sister used to write letters and has proved the two letters sent by his sister by post which has been marked as Exts. 1 and 1/1 which are on record. However, in the said two letters there are no specific assertions about the demand and subjecting cruelty except that 9 the victim is addressed as “Banjh” by the in-laws. However, this witness sent Rs.500/- on demand which was received by Sudhist Narayan Jha and the said receipt has been marked as Ext. 2. However, in cross-examination he has stated that the victim was assaulted by the accused persons before him. Hence, from the evidence of P. W. 1 it is apparent that though there is demand of motor-cycle but has not established about the assault or subjecting cruelty before him. P. W. 5 is the mother of the victim, she in her evidence supported the prosecution case that at the time of marriage there was demand of motor-cycle by the accused and they were not in a position to meet the demand and has stated that his daughter was subjected to cruelty for non-fulfillment of the demand and the victim was assaulted and was not allowed by husband and in-laws to wear the clothes given by her. In her cross- examination she has stated that Praveen Jha has never assaulted the victim at her house. Hence, though P. W. 5 has supported the prosecution case regarding demand and subjecting cruelty but stated that the victim was not assaulted in the house of P. Ws. 3 and 5. P. W. 3 is the father who has supported the prosecution case regarding subjecting cruelty for non-fulfillment of the demand of motor-cycle and has stated that when he got information about subjecting cruelty to his daughter, he went to the house of his daughter and get information about assault from the daughter itself. He thereafter asked the son-in-law that why they are subjecting cruelty. He got a shop opened for mending the telephone. He has further stated that in 1995 at the occasion of “Baishakh Sankranti” they came and quarreled for motor-cycle and threatened to face consequence soon. P. W. 5 in her evidence stated that the victim was subjected to cruelty for non-fulfillment of the demand. However, this witness in his evidence has stated that the victim was never subjected to cruelty before him. However, this witness in his cross-examination has specifically stated that Arti Devi herself stated in para 13 about subjecting cruelty and further stated in cross-examination at para 30-31 that even after disclosing 10 about the fact of subjecting cruelty the victim used to go to Sasural hence from the evidence of P. Ws. 3 and 5 it is apparent that the victim was subjected to cruelty and the evidence of P. W. 3 that the victim herself disclosed about the subjecting cruelty itself is a legal and valid piece of evidence hence taking into consideration the entire evidence the prosecution has been able to prove that the victim was subjected to cruelty for non-fulfillment of demand within seven years of the occurrence and death of the victim was in suspicious circumstance. Hence, prosecution has been able to prove the charge for the offence under Section 304B of the Indian Penal Code. 23. The criticism advanced by the learned counsel for the appellants that the witnesses though have supported the prosecution case about subjecting cruelty but the witnesses themselves in their evidence have accepted in their cross-examination that the victim was not subjected to cruelty by them. However, having regard to the fact that there is no evidence about the demand and subjecting cruelty and the witnesses in examination-in-chief as well as in cross-examination have stated that they inquired from the victim and the victim herself disclosed that she was subjected to cruelty for non-fulfillment of the demand hence is a valid and legal piece of evidence which can well be relied upon as admissible evidence under Section 32 of the Evidence Act. 24. Hence, it can well be inferred that the prosecution has been able to prove that the victim was subjected to cruelty soon before her death for non-fulfillment of demand of dowry and presumption under Section 113B of the Evidence Act can well be taken to hold that the offence under Section 304B of the Indian Penal Code is made out. 25. However, having regard to the fact that the appellants Sudhist Narain Jha @ Sudhist Jha and Devta Devi the wife of the appellant are concerned, there is no specific evidence regarding the specific overt act against them and further there is 11 no evidence that Devta Devi participated in any act of commission and omission regarding the disposal of the dead body and hence the evidence regarding the disposal of the dead body against Devta Devi and Sudhist Narain Jha @ Sudhist Jha also appears to be doubtful and they are entitled for the benefit of doubt in view of the fact that there is no specific evidence regarding subjecting cruelty and hence I give the appellants Devta Devi and Sudhist Narain Jha @ Sudhist Jha the benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt against them and hence Cr. Appeal No. 58 of 1999 is allowed. 26. However, I find and hold that the prosecution has been able to prove the case against the appellant Pravin Jha in Cr. Appeal No. 65 of 1999, who is husband of the victim and hence Cr. Appeal No. 65 of 1999 is hereby dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 09th December, 2011. N.A.F.R./Kundan.