Criminal Appeal (SJ) No.365 of 1998 ****** Against the judgment of conviction dated 29.08.1998 and order of sentence dated 31.08.1998 passed by Sri Devi Dayal Prasad, learned Additional Sessions Judge, Darbhanga in Sessions Trial 269 of 1996. ****** 1. Raghunath Bhagat, Son of Lal Bihari Bhagat. 2. Lal Bihari Bhagat, Son of Late Govind Bhagat, Both residents of village – Nimaithi, Police Station – Baheri, District – Darbhanga. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Anil Jayaswal, Advocate. Mr. Anjana Bhagat, Advocate. For the Respondent : Mr. Sujeet 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 learned counsel for the State. 2. The appellants have been convicted under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted under Section 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and fine of Rs.500/- each and for non-payment of fine to undergo simple imprisonment for fifteen days. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case is that the deceased Bhago Devi @ Bhagiya is the daughter of the informant Ram Bhagat (P. W. 12). The said Bhago Devi was married with Raghunath Bhagat, (appellant no. 1) son of Lal Bihari Bhagat (appellant no. 2) about four months prior to the occurrence. After the marriage there was demand of dowry and victim was subjected to cruelty for non-fulfillment of demand. After the marriage the informant went to Sasural of the victim Bhago Devo 2 for her Bidai. But the appellant refused to sent the victim to Naiher in Bidai till the demand is fulfilled nor even allowed the informant to meet her daughter. It is further alleged that the demand was continuously made and the victim was subjected to cruelty and lastly on 08.09.1995, the appellant no. 1 Raghunath Bhagat came to the house of the informant and stayed in the night and demanded Rs.50,000/- under a threat that he will kill the victim and will remarry, if demand is not fulfilled. The appellant no. 1 went back on 09.09.1995. The informant got the information on 12.09.1995 about the death and then he proceeded to the Sasural of the daughter at village Nimaithi and learnt that the victim done to death and dead body has been disposed of. He also saw Raghunath Bhagat wearing “Utari” and then learnt about the death and it was threatened that he will have to face consequence if he will report to the police. 4. On the fardbeyan the FIR was lodged and after investigation the charge- sheet was submitted and cognizance has been taken. 5. During the trial after framing of the charge 13 witnesses were examined in this case. However, out of the 13 witnesses examined, P. Ws. 4, 5 and 8 were tendered. P. Ws. 2 and 6 did not support the prosecution case. P. Ws. 7, 10, 11 and 12 (informant) turned hostile. P. Ws. 1, 3 and 9 supported the prosecution case. 6. The defence of the accused persons is that the victim died out of the illness by diarrhoea and the father of the informant was informed. He also participated in the funeral but since the father demanded to return the jewellery, this case was lodged and these facts are apparent from the evidence of the cross-examination of the tender witnesses as well as the informant who has deposed in his cross- examination after declaring him hostile. 7. The trial court after taking into consideration the evidence of P. Ws. 1, 3 and 9 to the effect that Raghunath Bhagat had gone to the informant to demand dowry of Rs.50,000/- just one day before the death of the victim and had returned 3 back, convicted the appellant and sentenced as mentioned above. 8. Learned counsel for the appellants, however, contended that there is no cogent, reliable and unimpeachable evidence to prove the ingredients of Sections 498A and 304B of the Indian Penal Code as there is no evidence that the victim was subjected to cruelty. 9. Learned counsel for the State, however, opposed the contentions made by the learned counsel for the appellants and submits that the case has been proved by the evidence of P. Ws. 1, 3 and 9. 10. The appellants have been charged under Sections 304B and 498A of the Indian Penal Code. However, the ingredient to prove the offence under Section 498A of the Indian Penal Code is whether the victim was subjected to cruelty. The ingredients to prove the offence under Section 304B of the Indian Penal Code firstly is whether the marriage of the victim was solemnized within seven years, secondly whether the victim was subjected to cruelty for non-fulfillment of dowry soon before the occurrence and thirdly whether the death of the victim was in suspicious circumstance to draw the presumption under Section 113 B about Dowry death. . 11. Prosecution case as alleged in the fardbeyan that the marriage of the victim was solemnized about four months prior to the occurrence. There was demand of Rs.50,000/- and the victim was subjected to cruelty for non-fulfillment of the demand. It has further been alleged that the victim was done to death and no intimation was given about the death. He learnt about the death on 12.09.1998 and then went to the village and inquired and then learnt about the occurrence and the death and dead body disposed of and saw Raghunath Bhagat in “Utari”. 12. However, the informant is P. W. 12 has stated in his evidence that the marriage was solemnized within ten years before the occurrence with the appellant no. 1. He had only one marriage. She died out of diarrhoea. He was declared hostile and on cross-examination by prosecution he said that the marriage solemnized 4 within four months but information about demand of Rs.50,000/- and subjecting cruelty for non-fulfillment of demand was given to police. He has stated that he got the information of death of Bhago Devi and had participated in the funeral. 13. P. W. 12 in para 13 of his cross-examination has stated that on getting the information about the illness of Bhagiya Devi he went there and even participate in the funeral and asked his Shamadhi to return jewellery of Bhagiya Devi but he was not ready to return and so he filed the petition, which was read over to him. Hence, P. W. 12 has not supported the prosecution case. 14. So far as, the evidence of P. W. 1 is concerned, he has only stated that the marriage was solemnized on 12.06.1995 and on 08.09.1995 Raghunath Bhagat came to his Sasural and demanded Rs.50,000/-. The evidence of P.W. 1 is only to the effect that the marriage was solemnized within seven years and there was demand but there is no evidence that the victim was subjected to cruelty for non-fulfillment of demand and there is no evidence that the death of the victim was in suspicious circumstance. 15. P. W. 3 in his evidence has stated that he heard that Raghunath Bhagat had come to demand dowry, which was not paid. He also heard from the two persons about the death of the victim. However, the evidence of P. W. 2 about death of victim is hit by hearsay as he has not disclosed from whom he learnt. 16. P. W. 9 is a co-villager though she claims to be Nanad of the victim but in her evidence has stated that she belongs to Koiri caste, whereas the victim belongs to carpenter. Hence, apparently she is not the relative but co-villagers of the informant and her evidence is only to the effect that Raghunath Bhagat had come to demand Rs.50,000/- and has stated that she learnt that Ram Bhagat went to see the dead body and found that the dead body had already been disposed of. 17. However, P. W. 13 has not supported the prosecution case regarding the fact that the dead body was disposed of in his absence and hence the evidence of P. 5 W. 9 that she learnt from Ram Bhagat about disposal of the dead body and is not admissible and significance. 18. However, the evidence of the I.O. is not of much relevance and hence taking into consideration the entire evidence the informant did not support the prosecution about demand and subjecting cruelty. The evidence of P. Ws. 1, 3 and 9 is only to the effect that there was demand of Rs.50,000/-. There is no evidence at all that the victim was subjected to cruelty for non-fulfillment of the demand and hence since the ingredients of subjecting cruelty has not been established and the charge under Section 498A of the Indian Penal Code is failed. Further since there is no evidence that the victim was subjected to cruelty for non-fulfillment of the demand and there is no reliable evidence that the victim was cremated without giving information to Naihar people and hence the ingredients for offence under Section 304 B of the Indian Penal Code has not been established to raise a presumption under Section 113B of the Indian Penal Code to fasten the appellant for the criminal liability for dowry death. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and hence I acquit the appellants from the charges levelled against them and the order of conviction and sentence recorded by the learned lower court is hereby set aside. This appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 14th September, 2011. N.A.F.R./Kundan.