CRIMINAL APPEAL No.762 OF 2007 With CRIMINAL APPEAL NO. 649 OF 2007 Against the judgment and order, dated 18.6.2007 and 19.6.2007 passed by Shri Indu Bhushan Prasad, Addl. Sessions Judge, F.T.C. 3, Madhepura in S.T. No. 116 of 2005. Cr. Appeal No. 762 of 2007 : Pappu Kumar, son of Chandeshwari Yadav, Cr. Appeal No. 649 of 2007: 1. Amrika Devi, wife of Chandeshwari Yadav, 2. Chandeshwari Yadav, son of Late Moti Prasad Yadav, all three residents of Murliganj Ward No.11, Middle Chowk, PS Murliganj, Dist. Madhepura .. Appellants. Vs. The State of Bihar. For the appellants : Mr. Kanhaiya Prasad Singh, Sr. Advocate, Mr. Uday Chand Prasad, Mr. Manoj Kumar and Mr. Binod Kumar Singh, Advocates. For the State : Mr. Rajendra Nath Jha, Addl. P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. Both these appeals arise out of the same judgment and hence they have been heard together and are being disposed of by this common judgment. The appeals relates to an offence under sections 304B, 498A, 494 and 201 of the Penal Code for which the appellants have been convicted to undergo R.I. for 10 years each under Section 304 of the Indian Penal Code, 3 years with Rs. 3000/- fine under Section 498 A of the Indian Penal Code and R.I. for 2 years with fine of Rs. 2000/- each under Section 494 of the Indian Penal Code. This is one of those cases where the informant who is father of the victim lady Shyama Devi has resiled from his earlier 2 statements made in the F.I.R. and given a complete go by to his own case. In the circumstances this court will now discuss the evidence which have come on record. Out of nine prosecution witnesses in this case, six witnesses i.e. PWs 1, 2, 4, and 5 cousin brothers of the informant, and PW 6 have been declared hostile. This court now has to consider the evidence of PW 3, PW 7, and the Investigating Officer of the case, PW 8, the doctor who has proved the signature on the post mortem report (Ext. 4). PW 3 Madan Murari Yadav father of victim lady states that in the evening before the occurrence he was informed on telephone by his son-in-law Pappu Yadav that his daughter has died. He further states that his daughter was married to Pappu Yadav ten years back. It is further stated that this witness says that when he went to the house of his son-in-law, he found that his daughter was lying dead and immediately thereafter the police arrived at the spot and arrested the father-in-law and the mother-in-law. According to him the F.I.R. was not read out to him and he was made to sign on a document which was already prepared and written by the Investigating Officer. In the cross examination PW 3 states that his daughter had good relation with her husband and in-laws and that there was never any demand of dowry or money from the in-laws or the husband of the victim lady. In view of the aforesaid statements PW 3, not much can be said with respect to the manner of the occurrence. The I.O. was examined as PW 7 who supports the case that he had recorded in the 3 case diary and also supports the F.I.R. This witness also states that he got the victim’s body sent for the purpose of performing post mortem. Ext. 4 indicates that the victim lady died of strangulation. Although the doctor who had performed the post mortem has not been examined nevertheless the report has been formally proved. Learned counsel appearing on behalf of the appellants submits that in view of the statements of the informant in court that the marriage took place ten years back and that there was no demand of dowry, that he was informed regarding the death of his daughter and that his daughter was never tortured or subjected to harassment by her husband and in-laws. Thus the ingredients of section 304B and 498A are not made out against the appellants. It appears from the evidence of PW 3 for some reason or the other he has resiled from his statement in the F.I.R. The trial court has convicted the appellants on the basis of the F.I.R. which, in my view, the court could not have done in view of the settled law that the F.I.R. is not a substantive piece of evidence. The F.I.R. can be used only for two purposes, either to corroborate the prosecution case or to point out contradictions in the case set up by the informant. Section 498A of the Indian Penal Code specifically provides that a husband or a relative of the husband of a woman subjects such woman to cruelty shall be punished for imprisonment for a term which may extend to 3 years or with find. Cruelty has also been defined in the said Section as any wilful conduct which would drive a woman to commit suicide and harassment of a woman with a view to 4 coercing her or any relation of such person to meet the unlawful demand for any property or valuable security. In this case the informant resiled from the statement and has led no evidence to show that there was cruelty, harassment or any demand made by the husband or the relatives of the husband. Having failed to lead evidence to show that the victim was subjected to cruelty or harassment, the question that would then arise is whether the ingredients of Section 304B of the Indian Penal Code have been satisfied in the facts of this case. The main features of the evidence before the Court is that the marriage took place 10 years earlier to the occurrence. There was no demand of dowry and that the informant informed of his daughter death. In order to attract application of Section 304B, the essential ingredients are as follows: 1. An unnatural death of a woman within 7 years of marriage. 2. That soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. 3. Such cruelty or harassment should be in connection with any demand for dowry. 4. It has also been held by some Courts that even when circumstances are created by the husband or by the in-laws of the deceased compel her to choose death as the only way out the provisions 5 The facts reveal that in fact in this case the ingredients of Section 304 B are not attracted. After perusal of the evidence and the provisions of law as pointed out by the counsel, there is still one aspect of the matter which cannot be ignored by the court and that is that the victim lady died an unnatural death. The post mortem report indicates that she died due to strangulation. True it is that the witnesses have not come up with a case which may lead to this court to hold that the death was due to dowry. However, they have not been able to show or to indicate that the death was natural one. Learned counsel submits that the doctor has not been examined in Court and so the appellant could not get an opportunity to cross examine him with respect to injury/post mortem report and as such the Court cannot conclude that the death was an unnatural one. Therefore, this court finds that although a case is not made out under section 304B of the Penal Code, may be cognizable offence was committed. Learned counsel for the appellants submits that the appellants cannot be convicted for any offence for which charge has not been framed and as such it would not be proper for this court to convict them for any offence without following the procedure as laid down in the Code of Criminal Procedure. I agree with the submissions made on behalf of the appellants. It would be open for the State to take steps in this direction and restart the trial by framing charges under Section 302 of the Indian Penal Code, although I do feel that it will not meet with much success in view of the nature of the evidence and the attitude of 6 the witnesses in this case. For the reasons discussed above, the judgment and order dated 18.6.2007 passed in Sessions Trial No. 116 of 2005 arising out of Murliganj P.S. Case No. 44 of 2004, GR Case No. 351 of 2004 are set aside and appellants Pappu Yadav and Chandeshwari Yadav who are in custody are directed to be set at liberty forthwith if not wanted in any other criminal case. Amrika Devi who was on bail during the pendency of her appeal is discharged from the liabilities of her bail bonds. In the result, these appeals are allowed. Patna High Court, April 2, 2009, NAFR / haque (Sheema Ali Khan, J.)