IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment and order dated 27th August, 1996 passed by Sri Devi Dayal Prasad, First Additional Sessions Judge, Ara in Sessions Trial No. 40 of 1995. Criminal Appeal (SJ) No.226 of 1996 1. Wakil Tiwary, Son of Baliram Tiwary, resident of village – Chaurai, P.S. – Udbant Nagar, District – Bhojpur. 2. Sri Nath Ojha, Son of Late Laxman Ojha, resident of village – Chakwath, P.S. – Bihea, District – Bhojpur. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s With Criminal Appeal (SJ) No. 268 of 1996 Satendra Ojha, Son of Shri Nath Ojha, resident of Village – Chakawat, P.S. – Bihea, District – Bhojpur. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s --------- For the Appellant/s : Mr. Ravi Kumar, Advocate. Mr. Sanjeev Kumar, Advocate. For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. ---------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The above two appeals, namely, Cr. Appeal No. 226 of 1996 and 268 of 1996 have been heard together and disposed of by the common judgment as both the appeals arise out of the common judgment and order dated 27th 2 August, 1996 in Sessions Trial No. 40 of 1995 passed by Sri Devi Dayal Prasad, Ist Additional Sessions Judge, Ara by which he has convicted the three appellants, namely, Wakil Tiwary, Sri Nath Ojha and Satendra Ojha for offence under Section 304 (B) read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further four years for offence under Section 201 of the Indian Penal Code to all the three appellants. Both the sentences shall run concurrently. 3. However, two sets of appeal were filed, one by Satendra Ojha and the other by Wakil Tiwary and Sri Nath Ojha. Sri Nath Ojha is the father-in-law of the victim and Wakil Tiwary is the cousin of Satendra Ojha i.e. son of the maternal uncle. 4. The prosecution case as alleged in the written report of the informant, the brother of the victim is that on 02.05.1993 the marriage of the sister of the informant was solemnized with Satyendra Ojha. It is alleged that after marriage Satyendra Ojha demanded a Vespa scooter and golden chain worth two Bhar, the informant requested that he being peon in a Gramin Bank is unable to fulfill his demand on which Satyendra Ojha and Sri Nath Ojha impressed to pay the same at the time of Gauna and thereafter his sister was sent to Nayhar by Sakuntala Devi. Rinku Devi, the sister of the informant, remained at Nayhar for about one and half months and thereafter it is alleged that the three appellants came and asked to send the victim Rinku Devi and also asked to arrange for Vespa scooter and golden chain. The prosecution is 3 case further is that on 20.05.1994 the date was fixed for Vidai and his sister went to Sasural, when on 24.05.1994 the informant went to Chakwath Gram then his sister disclosed about subjecting to cruelty for non-fulfillment of the demand and asked to fulfill the demand, even after he came and disclosed the fact of his parents and on 09.06.1994 at about 4:00 P.M he learnt that his sister has been done to death and getting the information, the informant went and found his brother-in-law, their parents and Wakil Tiwary were absconding and also learnt from the people that the death of his sister has already been taken place on 07.06.1994. 5. On the fardbeyan of the informant, the F.I.R. was lodged and after investigation the charge-sheet was submitted against three accused persons who are the appellants. After submission of the charge-sheet, cognizance was taken and the case was committed to the court of sessions where the charge was framed and after framing of the charge the trial proceeded. After the trial, six witnesses were examined on the prosecution side along with documentary evidence and thereafter the case was closed. Statements of the accused persons were recorded and the case was procedeed for defence evidence. 6. The defence also adduced oral and documentary evidence and 14 witnesses were examined on behalf of the defence. The documentary evidence adduced are Exts. A and C, the letter of the victim. 7. After considering the oral and documentary evidence the order of 4 conviction was recorded as stated above. However, altogether three persons faced the trial. The two appeals have been filed, one by Satyendra Ojha the husband of the victim and another by Sri Nath Ojha who is the father-in-law of the victim and Wakil Tiwary is cousin (Mamera Bhai) of husband. 8. Learned counsel for the appellants, however, contended that there is allegation of demand of Vespa Scooter and golden chain, however, both the parties were not in a position to give or receive Vespa Scooter and golden chain and there is no allegation of demand and the allegation is that Vespa Scooter and golden chain were demanded at the time of feast during Donga (or second marriage) and the evidence regarding the demand is neither supported by recording the evidence and it has been asserted that the victim was suffering from abdominal pain and appendicitis and the death was due to appendicitis even when a great care was taken by the appellants and she was examined by the two doctors D.W. 12 and D.W. 11 and was being taken to the hospital for treatment but she died while taking to hospital on jeep and further Maikya people were informed and they attended the cremation. The defence has further developed story after the death of the victim, the husband of the deceased demanded the Vespa Scoter and golden chain and when it was refused then the false case was lodged and further strengthened his argument that the letter written by the victim Ext. A and C do not indicate the strain relation or subjecting cruelty as there was no reference to subjecting cruelty. 5 9. Learned counsel for the State, however, supported the judgment of conviction and sentence and asserted that the marriage was solemnized on 02.05.1993 and the Bidai of the victim was performed on 20.05.1994, just within a year and the victim was done to death on 07.06.1994 for non- fulfillment of the demand of dowry. There are sufficient evidence regarding the demand and subjecting cruelty for non-fulfillment of demand right from the date of marriage or feast of Donga. The death is in suspicious circumstance. Hence ingredient of Section 304 B of the Indian Penal Code is fulfilled. It is alleged that the victim was suffering from abdominal pain as per the defence claim. She was being taken to hospital on jeep and they claimed that the victim died in way. But it does not stand to reason why the victim was not examined by any doctor to confirm her death or to know about the cause of her death. The circumstances itself suggest that the accused persons has bring in evidence that she was taken to the hospital and in way she died but no step was taken to examine her by any doctor for confirming her death or regarding ascertaining the cause of her death. Hence the death can well be inferred to be in suspicious circumstances and hence it shifts the onus and that shall sustain under Section 304 B of the Indian Penal Code that the death of the victim is a dowry death and hence submits that the prosecution has been able to establish the charges leveled against the accused persons. 10. Hence, on respective submissions of the parties, the question for 6 consideration is whether the prosecution has been able to establish the charges against the appellants. 11. However, the prosecution case as alleged in the fardbeyan is that the marriage was solemnized on 02.05.1993, there was allegation of demand and subjecting cruelty and the death in suspicious circumstance. 12. However, P. W. 1 in his evidence has stated that at the time of feast of Gauna the husband was not taking meal and was making a demand for Scooter and a golden chain. 13. P. Ws. 2, 3 and 4 have also supported the prosecution case about the demand of dowry of a scooter and golden chain by the husband as he was not taking meal, though P. W. 2 has stated that Wakil Tiwary was abating. However, only allegation made was that he was abating but no specific allegation about what act really was done by Wakil Tiwary has been mentioned and hence the allegation about the abatement is vague. 14. However, P. W. 5 is the informant has stated that when he went to meet his sister then the sister disclosed about the assault, demand and subjecting cruelty. 15. However, the defence has also adduced 14 witnesses and their case is that the victim was suffering from the abdominal disease and was treated in Shapur and she died out of the abdominal pain and her last rites were performed and they have adduced evidence that while she reported about the abdominal pain she was treated on 24.05.1994 at Sahpur. 7 16. D. W. 12 has stated that he had treated the deceased on 24.04.1994 and D.W. 11 who was Medical Officer at Shahpur Referral Hospital, also stated that he treated the deceased on 04.06.1994 and again on 07.06.1994 and the deceased was referred to Sadar Hospital Ara. But the victim was never taken to Ara Hospital. A plea has been taken that she died in way but no doctor was examined her after her death to confirm the death or cause of death and no reason why she was not taken to Ara Court even when she died in way to confirm her death or cause of death. 17. However, taking into consideration the entire evidence there is evidence of demand by Satyendra Ojha, subjecting cruelty and taking the victim to Sadar Hospital by the husband. However, there is no evidence against Sri Nath Ojha and Wakil Tiwary of demand or for subjecting cruelty, except the evidence which is not corroborated and there is evidence about subjecting cruelty and the death of the victim after her coming to Sasural, on 07.06.1994 when the Bidai of the victim was done on 20.05.1994 and there is allegation of demand and subjecting cruelty by the husband and the death of the victim is in suspicious circumstance. 18. However, having regard to the fact that only evidence about the demand or subjecting cruelty is about Satendra Ojha and the evidence against Sri Nath Ojha and Wakil Tiwary regarding the demand of dowry or subjecting cruelty is lacking and hence I find and hold that the offence under Section 304 B of the Indian Penal Code established against Satyendra Ojha. 8 But so far as the appellants Sri Nath Ojha and Wakil Tiwary is concerned, there is no cogent and unimpeachable evidence about the demand or subjecting cruelty against Sri Nath Ojha and Wakil Tiwary and hence I find and hold that the learned lower court misdirected itself in convicting and sentencing Sri Nath Ojha and Wakil Tiwary for offence under Section 304 B of the Indian Penal Code hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt against Sri Nath Ojha and Wakil Tiwary, hence the order of conviction and sentence against Sri Nath Ojha and Wakil Tiwary is hereby set aside. Cr. Appeal No. 226 of 1996 is allowed and the two appellants, namely, Sri Nath Ojha and Wakil Tiwary are acquitted of the conviction and sentence recorded against them. 19. So far, Cr. Appeal No. 268 of 1996, Satendra Ojha, is concerned, I do not find any merit in this appeal and it is hereby dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 28th June, 2011. N.A.F.R./Kundan.