Ashwani Kumar Singh, J.@mdashSince both the appeals arise out of the judgment and order dated 19.12.2012 passed by learned Additional Sessions Judge-II, Madhubani in Sessions Trial No. 267/2010/4 of 2012 whereby and whereunder the appellants have been convicted under Sections 304-B read with 34 and 201 of the Indian Penal Code, they have been heard together and this judgment will dispose of them. The appellants have been sentenced to undergo R.I. for ten years u/s 304-B of the Indian Penal Code, R.I. for three years u/s 201 of the Indian Penal Code and to pay a fine of Rs. 5,000/- each and in default to undergo S.I. for three months. However, both the sentences have been ordered to run concurrently. P.W. 9, Abhiram Singh, submitted his fardbeyan on 9.9.2009 alleging therein that his daughter Puja Devi, aged about 20 years, was married to the appellant Sajjan Singh on 7.5.2008. At the time of marriage, cash, ornaments, clothes and other articles were given to Sajjan Singh and his family members in the form of gift. After marriage, his daughter was taken to her matrimonial home where her husband Sajjan Singh, Sister-in-law (Jethani), Mintu Devi, father-in-law, Ram Awtar Singh and brother-in-law (Bhaisur), Bijay Singh subjected her to torture for bringing insufficient dowry. After about four months, when the informant went to his daughter''s matrimonial home, she narrated her plight to him. She told him that the accused persons were demanding colour T.V. and Rs. 50,000/- in cash for business purposes. The informant requested the accused persons not to torture his daughter. He conceded to give a cow and a colour T.V. as dowry to them. The informant, however, expressed his inability and helplessness in paying Rs. 50,000/- in cash. The informant further alleged that on 27.8.2009, at about 7.30 a.m., his son-in-law Sajjan Singh told him on telephone that he had to go to Ahmedabad with Puja and, as such, requested him to come and take Puja to her Naihar so that before going to Ahmedabad she may meet with other family members. The informant told his son-in-law that he was sending a vehicle so that his daughter may come. However, at about 2 p.m., his Samadhi, Ram Awtar Singh, gave a call on his cellular phone and told him that as there was marriage in the family, he should come to take his daughter after Durga Puja. On 28.8.2009, at about 10 a.m., his Samdhi, Ram Awtar Singh, called him again on his phone and told him to come immediately. When the informant reached the matrimonial home of his daughter at village Chachraha at Patna High Court about 12.30 p.m., he was told by his Samdhi that his daughter had gone somewhere at about 1 a.m. in the previous night and since then she could not be located. He requested the informant to make a search for her so that she may be traced out. Thereafter, on 5.9.2009, the informant lodged a case of kidnapping of his daughter in court at Madhubani against the accused persons.
2. The informant has further alleged that on 8.9.2009, at about 6 p.m., the sister-in-law (Jethani) of his daughter, namely, Babita Devi alias Mintu Devi, told him on telephone that his daughter was killed by her husband Sajjan Singh and father-in-law, Ram Awtar Singh, for non-fulfillment of demand of dowry and her dead body after being packed in a gunny bag was thrown into the Jiwach river. The informant stated that on receipt of such information, he along with co-villagers Surya Narayan Singh, Ramesh Singh, Sanjay Singh and Nagendra Singh rushed towards the Jiwach river. When they reached there, they found a severed head of a lady packed in a gunny bag. The informant identified the same as the head of his daughter Puja Devi. The informant and others tried to search the headless body of Puja Devi but, the same could be not located. On the basis of such information, Kaluahi P.S. Case No. 83 of 2009, was registered under Sections 302, 304-B read with 34 and 201 of the Indian Penal Code and investigation was taken up. On conclusion of investigation, the police submitted charge-sheet against Sajjan Singh and Babita Devi alias Mintu Devi and kept the investigation open as against the other accused persons.
3. The learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the Court of Session for trial. The trial court framed charges under Sections 304B read with 34 and 201 of the Indian Penal Code against the appellants to which, they pleaded not guilty and claimed to be tried. In course of trial, the prosecution examined 13 witnesses in order to prove the charges.
4. The defence of the appellants is that no occurrence as alleged had ever taken place. According to defence, Puja Devi is alive and is living at some other place out of her own sweet will. The statement of the appellants were recorded u/s 313 of the Code of Criminal Procedure.
5. P.W. 1, Rajendra Paswan, P.W. 2 Dinesh Paswan, P.W. 6 Ramesh Singh and P.W. 12 Umesh Paswan have been declared hostile by the prosecution. Their evidence is of no help to the prosecution. P.W. 10 Suraj Paswan and P.W. 11 Ram Awatar Paswan are formal witnesses. They have proved their signature on the seizure list which have been marked as Ext. 2 and Ext. 2/2 respectively. In cross-examination, they have admitted that they had not seen anything from their own eyes. They further admitted that they had put their signature on a blank sheet of paper.
6. P.W. 13, Deo Narayan Lal Suman, an advocate clerk, has proved pages 1-26 of the case diary which has been marked as Ext. 3. He has also proved formal FIR in writing of Mr. S.N. Sarang, the then Sub-Inspector of Kaluahi Police-Station, which has been marked as Ext. 4. He has stated that the FIR and the case diary were in writing of Mr. S.N. Sarang, the then Sub-Inspector of Police posted at Kaluahi Police Station. However, in cross-examination, he admitted that he had not seen Mr. Sarang writing the FIR or the case diary. He has also admitted that he had no personal knowledge about the occurrence.
7. P.W. 3, Satya Narayan Paswan, has stated in his examination-in-chief that when he came from outside he came to know that a dead body of a lady was thrown in Kamla Dhar by killing her. In cross-examination, he admitted that he had no personal knowledge about the occurrence.
8. P.W. 4, Munna Paswan, has also stated that when he came to the village, he learnt that in the river of village Chachraha a dead body of an unknown female was found. In cross-examination, he admitted that in his presence the dead body was not recovered. He further admitted that his statement was never recorded before the police.
9. P.W. 6, Ramesh Singh, has stated the daughter of the informant, namely, Puja Devi, was married in village-Chachraha and he came to know that she died in her sasural. In cross-examination, he admitted that he had no knowledge about the occurrence and he never talked to the informant regarding the occurrence.
10. P.W. 7, Sanjay Kumar Singh, has also stated that daughter of the informant was married in village-Chachraha. However, he came to know that she died in her sasural. In cross-examination, he also admitted that he had no personal knowledge about the occurrence and he never visited village-Chachraha.
11. P.W. 8, Nagendra Singh, has stated that the occurrence took place 2-1/2 years ago. According to him, the case was instituted by the informant Abhiram Singh. In cross-examination, he admitted that Abhiram Singh is his co-villager but, he is not on visiting terms with him.
12. P.W. 9, Abhiram Singh, is the informant of the case. He is father of the victim. In examination-in-chief, he stated that his son-in-law was working outside and his daughter had not gone along with him. He further stated that when he went for ''Bidai'' of his daughter, the accused persons stated that since it was an inauspicious month of Bhado, Bidai would not be possible. He further stated that on 28.8.2009, his Samdhi asked him to come immediately. He, thereafter, went to Chachraha. His Samdhi Ram Awtar Singh inquired from him as to whether or not his daughter Puja had gone to her maternal home. The informant stated that his daughter had not come to his house. Then, he was told that she had left her matrimonial home and had gone to some unknown destination. He started searching for his daughter. After 12-13 days, he learnt that near Narar Kothi in the Jiwach river, a dead body was found and, thereafter, he went there and identified the severed head of Puja. He thereafter lodged the case at Kaluahi Police Station.
13. In cross-examination, he has stated that he cannot say who killed his daughter. He further admitted that he had seen only the hair of the severed head in the gunny bag from a distance of about 10 yards. He further admitted that he had instituted the case merely on suspicion. He admitted that he came to know that his daughter is living at Janakpur. He also admitted that his daughter had never complained him about any cruelty meted out to her for non-fulfillment of demand of dowry either by the husband or by her in-laws. He also admitted that his daughter was kept well in her matrimonial home and he had no complain whatsoever against his son-in-law. He further admitted that the accused persons never demanded for any dowry from him and whatever was spent in the marriage of his daughter was spent by him willfully.
14. P.W. 5, Surya Narain Singh, a co-villager of the informant, has corroborated the prosecution case as narrated in the FIR. He has stated that the police sent the severed head of the lady so recovered from the Jivach river for post-mortem examination. In cross-examination, he admitted that he had never visited village-Chachraha where informant''s daughter was married. He also admitted that he had no relation in that village. According to him though the gunny bag, in which the severed head of the deceased was found, was recovered in his presence but, he had not signed on any paper. He could not say about the time when his statement was recorded by the police. He denied the defence suggestion that he had not seen anything and had deposed falsely.
15. It is relevant to note here that the investigating officer of the case has not been examined. There is no explanation on behalf of the prosecution for his non-examination. The material exhibits have also not been produced in the court.
16. P.W. 5 has stated that post-mortem examination of the severed head of a female recovered from the gunny bag was held but, neither any doctor has been examined nor the post-mortem report has been brought on record.
17. The informant has himself stated in the court that his daughter was never subjected to cruelty for non-fulfillment of demand of dowry. He has stated that he has come to know that his daughter is living at village-Janakpur. He admitted in cross-examination that he did not see the so-called severed head said to have been recovered from a gunny bag from the river.
18. So far as P.W. 5 is concerned, he has clearly stated that he never visited the matrimonial home of the daughter of the informant. The seizure list witnesses have stated nothing about the articles seized. They have admitted that nothing was recovered in their presence and their signature was obtained on blank sheet of paper.
19. In order to prove a charge u/s 304-B of the Indian Penal Code, the following essentials must be satisfied:--
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand for dowry; and
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
20. In the present case, even the death of the deceased has not been proved. The father of the deceased, who is informant of the case has stated that he came to know that his daughter is living in village-Janakpur. There is no other evidence on the basis of which the death of the deceased can be established. If the factum of death of the daughter of the informant itself has not been proved, it is not possible by any stretch of imagination to uphold the conviction. Apart from that, there is no legal evidence that the daughter of the informant was ever subjected to cruelty for non-fulfillment of demand of dowry.
21. Thus, I find that the ingredients of the offence as defined u/s 304-B of the Indian Penal Code are completely missing in the facts and circumstances of the present case. The prosecution has failed to establish either demand for dowry or consequent harassment for non-fulfillment thereof. The death of the deceased and the death under unnatural circumstances within seven years of marriage have also not been proved. Such being the quality of evidence, it is difficult to uphold the impugned judgment of conviction and consequent order of sentence recorded by the trial court. Accordingly, the impugned judgment and order dated 19.12.2012, passed by the learned Additional Sessions Judge-II, Madhubani in Sessions Trial No. 267/2010/4 of 2012, are hereby set aside. The appellant Babita Devi alias Mintu Devi is on bail and as such, she is discharged from the liabilities of the bail bond. The appellant, Sajjan Singh, who is in custody, is directed to be released forthwith, if not required in any other case.
The appeals stand allowed.
