IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 81 of 1999 Against the judgment of conviction dated 27.03.1999 and order of sentence dated 01.04.1999 passed by Sri Bipin Dutta Pathak, learned 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 385 of 1997 / 31 of 1997. ~~~~~~ Akhilesh @ Tapeshwar Jado, Son of Shyamdeo Jado, resident of village – Habspur, P. S. – Hespura, District – Aurangabad. .... .... Appellant. Versus 1. The State Of Bihar. 2. Krishna Singh, Son of late Gauri Shankar Singh, resident of village – Sonehathu, P.S. – Hespura, District – Aurangabad. .... .... Respondent. ~~~~~~ For the Appellant : Mrs. Vimala Kumari, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Nobody appears on behalf of the appellant. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the respondents. 3. The appellant has been convicted under Section 304(B) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years. 4. The prosecution case as alleged in the fardbeyan of the informant Krishna Singh, the father of the deceased is that the marriage of the victim was solemnized in the year 1991 according to the Hindu rites and rituals. After two years of the marriage the husband Akhilesh @ Tapeshwar Jado and his mother Dhanpatiya Kuer used to tell the victim Kiran Devi that his father had not given motor-cycle at the time of marriage and so bring motor-cycle and golden chain. The victim informed the informant but the informant could not satisfy the demand due to poverty and for that the victim was subjected to cruelty by assault and she was 2 ousted from the house several times. It is further alleged that whenever the informant and his son Ravinder Kumar used to go to see the victim then they did not get good behavior from the accused persons and were threatened them that till the demand is not fulfilled they will not keep the victim with due dignity. On 04.04.1997 also the victim came to her Naihar from her Sasural and disclosed that her husband and mother-in-law have ousted her after assault for non-fulfillment of the demand. The informant on the same day went to the Sasural of victim at village Haibaspur and made them understand, then on the same day the son-in-law Akhilesh @ Tapeshwar Jado came and took the victim to Sasural. On 17.04.1997 at about 5:00 P.M. while the informant was at Panchrukhya Bazar then he learnt that the victim has been done to death by burnt then he went to Haibaspur and found the victim crying in burnt state. On an inquiry she disclosed that Akhilesh @ Tapeshwar Jado and Punam Devi (Nanad) has set her on fire after sprinkling kerosene thereafter with the help of the force the informant took the victim to Haspura Hospital but the victim died in way. 5. On the fardbeyan, the First Information Report was lodged and after investigation charge-sheet was submitted. During the trial thirteen witnesses were examined on behalf of the prosecution. However, the defence has also examined two witnesses D. W. 1 Deo Narayan Yadav and D. W. 2 Ram Bali Yadav. 6. The defence of the accused persons is that Kiran Devi burnt while cooking food on 17.04.1997 at about 4:00 P.M. and on hulla the witnesses went and set off fire and at that time neither Akhilesh @ Tapeshwar Jado nor his mother Dhanpatiya Kuer was present at the house. Akhilesh @ Tapeshwar Jado had gone for grazing his she-buffalo and his mother Dhanpatiya Kuer had gone to Daudnagar on duty. At the time of taking the victim to hospital Akhilesh @ Tapeshwar Jado also reached there and he also went to the hospital. 3 7. The trial court taking into consideration the evidence of the witnesses found that P. Ws. 1 to 7 have turned hostile though they have come to support the prosecution case about setting off fire while the victim cooking food and have been declared hostile by the prosecution and cross-examined with regard to earlier statement. The first set of witnesses P. Ws. 1 to 7 is the witnesses, who are resident of place of occurrence village Haibaspur, P. S. Haspura. The second set of witnesses are the witnesses of the Naihar people of the victim who are P. W. 8 the son of the informant, P. W. 10 the mother, P. W. 12 the father of the victim who is the informant and P. W. 11 is an independent witness having supported the prosecution case and P. W. 9 is the doctor who has conducted autopsy on the person of the deceased. However, the witnesses P. Ws. 8, 10 and 12 have supported the prosecution case in their evidence about marriage having been solemnized in the year 1991. They have come to depose that there was demand and subjecting cruelty for non-fulfillment of the demand. The victim after subjecting cruelty has rushed to the Naihar and disclosed about the same for non-fulfillment of the demand of motor-cycle and golden chain. P. Ws. 8 and 12 have specifically supported the prosecution case that on 04.04.1997 the victim was ousted after subjecting cruelty and she came to Naihar and disclosed the fact to Naihar people. Thereafter the father visited the Sasural of the victim and made them understand then the husband of the victim came and took her to Sasural and thereafter the occurrence took place on 17.04.1997. 8. The trial court held that the marriage solemnized within seven years. There was demand and subjecting cruelty for non-fulfillment of the demand and the victim died in a suspicious circumstance and hence the prosecution has been able to prove the charges, convicted the appellant for the offence under Section 304B of the Indian Penal Code. However, taking into consideration the evidence of the 4 witnesses is that the mother of the victim was not present at the place of occurrence, acquitted the mother Dhanpatiya Kuer and convicted the appellant and sentenced as mentioned above. 9. Learned amicus curiae, however, contended that the defence of the accused is that the occurrence took place while cooking food and the prosecution case is that the victim disclosed that she was burnt by sprinkling kerosene but in the inquest there is neither mentioned the smell of kerosene nor the doctor in his examination found the smell of kerosene. There is nothing in the evidence that whether the victim was conscious at the time she made the statement and this indicates a false implication as this part of the evidence has not been substantiated by cogent, reliable and unimpeachable evidence. The doctor has also found injury on head and probabilized that the injury might have been sustained due to cause or dashing against wall in burnt condition. 10. Hence, in view of the submissions, the question for consideration is that whether the prosecution has been able to prove the charges. 11. However, the evidence adduced and 13 witnesses were examined and there are two sets of witnesses. Witness nos. 1 to 7 who are resident of the place of occurrence i.e. the resident of the Sasural of the victim and they have come to support the prosecution case that the fire took place while she was cooking food and died while she was taken to hospital by his father. However, so far the fardbeyan is concerned, there is two parts that the marriage was solemnized in the year 1991 and there was demand and subjecting cruelty and she died out of the burn injury and it is alleged that when the informant reached there the victim was lying on the bed with cover of the mosquito net with a quilt over her and when the quilt was removed her mouth was opened which was tiled with the mosquito net then she demanded water and disclosed the fact that she has been done to death by 5 in-laws. 12. P. W. 12 is the informant and in his evidence has stated that he along with Saryug Singh went to the Sasural of Kiran Devi, the accused persons were not there and the house was closed. The same was opened by Saryug Singh and entered into the house and they found the burnt cloth in the courtyard which belonged to Kiran Devi and they went over the roof and found Kiran Devi lying there in burnt condition and her face was covered with mosquito net and quilt. He asked Saryug Singh to remove the mosquito net and when the net was removed then Kiran Devi demanded water and on inquiry disclosed that her husband and Punam Devi have burnt her by sprinkling kerosene. Thereafter Saryug Yadav came to the Panchrukiya Police Picket and disclosed about the occurrence and then the In- Charge of Panchrukiya Police Picket came with force to the place of occurrence and brought her to Haspura Government Hospital but her daughter died in way at Salampur and then she was taken to Referral Hospital Haspura along with the police and there the Officer-In-Charge came at Haspura where he gave his statement and has proved his statement marked as Ext. 4. 13. P. W. 13 is the I.O. and has stated that on 17.04.1997 he was posted at Haspura Police Station. On that date he heard a rumor at about 4:30 P.M. about burning of a female and recorded the Sanha 306 and proceeded to Referral Hospital. He recorded the statement of Krishna Singh and thereafter lodged the First Information Report bearing Haspura P. S. Case No. 28 of 1997 and proved the inquest report marked as Ext. 3 and sent for post-mortem. 14. However, the evidence of P. W. 12 the informant, he went to the Sasural of the victim where he found his daughter in burnt state kept in the house on Chauki and the daughter disclosed about the setting on fire and then he along with Saryug Singh went to Panchrukhya Police Picket and disclosed about the 6 occurrence and came to the place of occurrence with the help of force and then took the victim in injured state for treatment at Haspura Government Hospital by a Magadh Bus but the victim died in way at Salampur and she was brought to the same condition to Haspura Referral Hospital. However, the I.O. P. W. 13 in his cross-examination has stated that when he reached near the dead body then the police of Panchrukhya Police Picket was not there. He did not record the statement of the police of Panchrukhya Police Picket and has stated that he cannot say that the police of Panchrukhya Picket had gone to the place of occurrence or not and has denied the suggestion that the statement recorded by Pachrukhya Police has been suppressed and it has been asserted that since the statement recorded by the Panchrukhya Police did not implicate the appellant and so the same has been suppressed. However, it is true that the case of the prosecution that when the informant reached to the Sasural on information about burning of the victim and when he went there he found the victim injured kept wrapped in mosquito net and covered with the quilt and none of the family members were there at her Sasural and the victim disclosed that her husband and Nanad had burnt her by sprinkling kerosene and then the informant went to Panchrukhya Police Picket and police of Panchrukhya Police Picket reached at the place of occurrence, took the victim to the Referral Hospital Haspura when the victim died in way. This part of the evidence of the informant is not corroborated by any other evidence. The I.O. also has stated that he did not record the statement of Panchrukhya Police Picket and hence the statement of the victim about the disclosure of the occurrence does not inspire confidence as there is no evidence that whether the victim was at the time in a fit state of mind to depose and hence that part of the evidence does not inspire confidence. However, the fact that the victim died by burn injury has been established by the doctor P. W. 9 who conducted the autopsy on her person. 7 15. The defence of the accused person is that she died while cooking food. However, it is admitted that the victim died out of the burn injury hence under the facts and circumstances it can well infer that the victim died in a suspicious circumstance and when the informant reached there at Sasural the inmates of the house were not there. The victim was found wrapped in mosquito net and the doctor has opined that she died out of the burn injury to the extent of 100 per cent and hence it can well be inferred that the victim died in a suspicious circumstance or otherwise than in normal circumstance. Hence, even the statement made by the victim to the informant disbelieved even then it is apparent from the evidence that the victim was died in suspicious circumstance otherwise than in normal circumstance. This followed with the evidence of the witnesses that the marriage solemnized within seven years and further the evidence that there was demand and subjecting cruelty just before the occurrence as per the evidence of the victim and hence the three ingredients of the offence under Section 304B of the Indian Penal Code and the condition for taking the presumption under Section 113B of the Evidence Act has been complied as to raise a presumption as it has been established that soon before the death the victim was subjected to cruelty for non- fulfillment of demand of dowry. I find and hold that the prosecution has been able to prove the charges and hence I do not find any merit in this appeal and hence this appeal is dismissed. 16. Mrs. Vimala Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 19th December, 2011. N.A.F.R./Kundan.