M.L. Visa, J.@mdashBoth these appeals have been heard together and are being disposed of by this common judgment because they arise out of the same judgment and order dated 5th May, 1993 passed by 9th Additional Sessions Judge, Patna in Sessions Trial No. 310 of 1990 convicting and sentencing Rajeshwar Prasad, the sole appellant in Criminal Appeal No. 310 of 1993 and Nageshwar Prasad alias Nageshwar Pd. Singh, Kaushalia Devi, Ashok Kumar and Ramesh Kumar, the remaining four appellants in Cr. Appeal No. 251 of 1993 to undergo imprisonment for life u/s 302 read with 34 IPC, R. I. for 7 years u/s 304(B) read with Section 34, IPC and R. I. for 7 years u/s 201, IPC. All the appellants have further been found guilty and convicted u/s 498A, IPC but no separate sentence for this offence has been passed. The sentences have, however, been ordered to run concurrently.
2. The case of the prosecution, in short, is that ASI R. S. Pandey (PW 13) along with Hawaldar Satya Narayan Singh (PW 10), Ishwar Dayal Ram (PW 9) and constable Sheo Shankar (not examined) while on patrolling duty on 9-1-90 at about 8 a.m. was crossing the road between Bari Pahari and Chhoti Pahari, he heard rumour that somebody after assaulting a woman had thrown her in a Nala situate South of Bari Pahari. He along with above-named Hawaldar and Constables went to the place situate South of Bari Pahari and found that a woman aged about 25-27 years was lying unconscious there and local villagers had assembled there. He further found that there was a round mark on the neck of that woman and there were burn like injuries on her leg and back. Local villagers could not identify the woman. Shri Pandey then directed the local Chaukidar and Dafadar for informing about the matter to Patna City Hospital and got her admitted there for treatment. He also informed by wireless to CT PIR but on 17-1 -90 CT PIR informed him that the lady died during course of treatment. He then submitted a written Report (Ext. 15) before Officer In charge, Agam Kuan Police Station and a case u/s 302, IPC against unknown was registered. The police photographer took the photographs of the deceased. On 4-2-90 Chandeshwar Prasad (PW 5) went to Agamkuan Police Station and identified the photographs of the deceased to be of his daughter named Indu Kumari. He also filed a report (Ext. 2) at the Police Station stating therein that his daughter Indu Kumari was married to appellant Rajeshwar Prasad in the year 1986 and he had deposited a sum of Rs. 20,000/- in the SBI, Hilsa in Fixed Deposit in joint names of Rajeshwar Prasad and Indu Kumari and he further deposited a sum of Rs. 8,000/- in Nalanda Gramin Bank in Fixed Deposit and at the time of marriage he had given gifts according to his financial capacity. After marriage his daughter went to her Sasural and returned back after 3-4 days and she complained that her husband and his other family members misbehaved with her saying that her father had not. given dowry according to their expectations and they were demanding a further sum of Rs. 35,000/-, Fridge and a colour T. V. and she was threatened that in case of non-fulfillment of their demand she would be killed. At the time of ''Gauna'' (popularly known as 2nd marriage) when the appellant Rajeshwar Prasad along with his friends came to the house of Chandeshwar prasad, he demanded money, Fridge and a colour T. V. but Chandeshwar Prasad expressed his inability. Indu Kumari after ''Gauna'' went with her husband Rajeshwar Prasad and started living in a rented house belonging to Chunnu Bhagat (not examined) in Mehandiganj Mohalla of Patna. After one week when Dharambir Prasad (PW2) the younger brother of Indu Kumari visited her, she again complained about demand of dowry made by the appellants. On 27-1 -90 when Chandeshwar Prasad went to the house of appellants at Mehandiganj, he came to know that they had left the house and appellants were residing in Bari Pahari Village and on 28-1-90 when he went to Bari Pahari Village and inquired about his daughter, the appellants became angry and asked him not to visit them again. Chandeshwar Prasad in his report stated that the appellants after killing his daughter Indu Kumari had disposed of her dead body. The police after investigation submitted charge sheet and the cognizance of the case was taken and the case was committed to the Court of session and charges under Sections 302/34, 304(B)/34 201 and 498A, IPC were framed against all the appellants and after trial the appellants were found guilty and were accordingly convicted and sentenced as indicated above.
3. The case of the appellants before the Court below was complete denial of charges framed against them and their false implication in the present case. According to them, at the time of alleged occurrence the deceased was residing with her father and she had illicit relations with one Shiv Balak Rai. When this fact came to the knowledge of her father Chandeshwar Prasad (PW 5) he with the help of others committed murder of his daughter and when he came to know that an unknown lady in unconscious state was found by police in a ditch, who subsequently died, taking the advantage of this situation he claimed that unidentified lady to be his daughter Indu Kumari and has falsely implicated the appellants in this case. 11 witnesses on behalf of the appellants have been examined.
4. Altogether 13 witnesses- have been examined on behalf of the prosecution to prove its case. Chandeshwar Prasad (PW 5), Rameshwar Parasa (PW 4) and Dharmabir Prasad (PW 2) are father, uncle and brother, respectively, of the deceased. Ramashray Pandey (PW 13), on whose report (Ext. 15) FIR (Ext. 17) was drawn, Ishwar Dayal Ram (PW 9), and Satya Narayan Singh (PW 10) are the witnesses in whose presence the deceased was first found thrown in a ditch in unconscious condition. Dr. Jitendra Nath Shrivastava (PW 8) had examined the deceased on 9-1-90 at 10.30 a.m. when she was alive and found injuries on her person. Shri Chandeshwar Prasad (PW 12) is the doctor who had conducted autopsy on the dead body of the deceased. Ram Prasad Das (PW 6) and Ram Prasad Das (PW 7), employees of different banks are witnesses on the point of deposit of money by Chandeshwar Prasad (PW 5) in the joint names of his deceased daughter and her husband Rajeshwar Prasad. Ganga Mistry (PW 3) and Rameshwar Prasad (PW 4) are witnesses who had seen all the appellants in a jeep in which the deceased was also found in an unwell condition.
5. The appellants have challenged the identity of the deceased. According to them, the deceased was not Indu Kumari, wife of appellant Rajeshwar Prasad and daughter of Chandeshwar Prasad (PW 5), as alleged by prosecution and the photographs (Material Ext. II to II/4) produced by the prosecution are photographs of an unidentified lady and the photographs produced and proved by defence are the real photographs of Indu Kumari. Rama Kant Thakur (DW 1) & Sanjay Kumar (DW 2) have stated that they used to read together with Indu Kumari in School as well as in College. They have said that Material Exts. II to II/4 are not the photographs of Indu Kumari and photographs affixed on the Identity card (Ex. U), Examination Form (Ext. S) and Duplicate admit card (Ext. T) are the real photographs of Indu Kumari. Lakhan Sao (DW 10) has proved the photograph (Ext. R) on the Examination form (Ext. S) of Indu Kumari. Lakshman Prasad (DW 11) has proved the examination Form (Ext. S) said to be in the handwri ting of Indu Kumari. Ram Sanehi Prasad (DW 5) has proved the signature (Ext. A/5) said to be of Indu Kumari on the examination Form (Ext. S) and he has also said that photographs Material Exts. II, 11/4 produced by the prosecution are not the photographs of India Kumari and the photographs on Material E''xts. S, T & U are the real photographs of Indu Kumari.
6. Ext. S is an examination form with a photograph (Ext. R) said to be of Indu Kumari.'' This examination form is for appearing in the Matriculation Examination. Ext. T is a duplicate admit card with a photograph for appearing in Matriculation Examination of the year 1987. Ext. U is the Identity Card dated 7-11-89 with a photograph, showing that Indu Kumari was student of LA. in Sardar Patel College, Hilsa. A comparison of these three photographs shows that photographs on Exts. T and II are same but the photograph on Ext. S is different. Ext. S and Ext. T are examination form and duplicate admit card, respectively, for Matriculation examination. But, as staled above, photographs on these two exts. appear to be different at least not from one negative, whereas in the Ext. U which is identity card for the College, photograph appears to have been developed from same negative which was used for developing the photograph on the admit card. This creates a reasonable doubt that why Indu Kumari at the time of submission of photograph for her matriculation examination will submit two different photographs one for affixing on examination form and another for affixing on admit card when subsequently she submitted same photograph which was from the same negative of one of two photographs submitted by her earlier. Awadhesh Pd. (DW 3) is the photographer who had taken the photographs affixed on the identity card and admit card and has proved the negatives (Ext. F) of these two photographs. In cross-examination he has stated that he had taken the photographs on 13-7-89. If the photographs affixed on identity card (Ext. U) and admit card (Ext. T) were taken on 13-7-89 how it could have been used in the admit card (Ext. T) which is for appearing in the Matriculation Examination of 1987. This circumstance completely demolishes the case of defence that photographs affixed on Exts. T and U are of lndu Kumari. About Ext. S it has been submitted above that the photograph on it which is Ext. R is quite different from the photographs affixed on Ext. T and U.
7. The identity of the deceased has further been challenged on the point of her age. According to the defence, at the time of alleged occurrence Indu Kumari was aged about 20 years but in the written report (Ext. 15) it is stated that the age of the lady which was found thrown in an unconscious state was bout 25-27 years. In the inquest report (Ext. 18) the age of the deceased has been mentioned as 38 years, which falsifies the case of the prosecution that deceased was Indu Kumari, daughter of Chandeshwar Prasad and wife of appellant Rajeshwar Prasad. On the point of age of Indu Kumari the defence has produced documentary evidence. Raghwendra Nath Tiwary (DW 7) a Law Officer of Bihar School Examination Board, has proved an entry (Ext. 8) in a tabulation register and Lakhan Sao (DW 10) has proved an entry in admission register (Ext. O) and in School Leaving Certificate (Ext. P) in respect of Indu Kumari and in these entries the age of Indu Kumari has been shown as 15-10-170. From the side of prosecution, Chandeshwar Prasad (PW 5), the father of Indu Kumari, has stated that Indu Kumari was married to Rajeshwar Prasad on 20-6-87 and at that time her age was more than 22 years but below 23 years. He has denied the suggestion of defence that Indu Kumari was 16-17 years at the time of her marriage. If the age of Indu Kumari as given by Chandeshwar Prasad is taken into consideration it comes that at the time of alleged occurrence she must have been aged about 26 years. Dr. Jitendra Nath Shrivastava (PW 8) who examined the deceased when she was alive has, in his evidence, said that on 9-1-90 he examined a lady aged about 28 years brought by Mobile Force No. 13 in fully unconscious state. In the bed head ticket (Ext. B) and in the death register the age of deceased has been given as 28 years. It is true that in the inquest report age has been mentioned as 38 years but then we find that the Court below has rightly observed that inquest report was prepared by a police officer who cannot be said to be an expert in assessing the age and when post-mortem examination was conducted on the basis of inquest report, the same age 38 years appeared in post-mortem examination report (Ext. 13) too. There is another circumstance which supports the evidence of Chandeshwar Prasad (PW 5) on the point of age of his daughter Indu Kumari. Dharambir Prasad (PW 2) who is admittedly the son of Chandeshwar Prasad (PW 5) and younger brogher of Indu Kumari was examined by the Court below on 12-12-90 and on that day his age was assessed by the Court below as about 22 years. In this evidence, he has said that Indu Kumari was elder to him by 3-4 years. This evidence has not been challenged by the defence even by giving any suggestion to this witness. This also supports the case of the prosecution that at the time of alleged occurrence Indu Kumari must have been aged about 26 years. Chandeshwar Prasad (PW 5), father of Indu Kumari after seeing the photographs (Ext. II to II/4) taken by Police photographer Raj Kumar Jaiswal (PW 11) identified that these photographs were of his daughter Indu Kumari. Dharambir Prasad (PW 2) brother of Indu Kumari and Rameshwar Prasad (PW 4) uncle of Indu Kumari on seeing the photographs (Ext. II, 11/4) have stated that these photographs are of Indu Kumari. Ramashray Pandey (PW 13) the I.O. in his evidence has stated that on 22-1-90 he got the photographs (Ext. II to 11/ 4) of the deceased taken by Zonal Photo Unit and on 3-2-90 he sent the photographs for publication to C.I., D.I.B. and on 4-2-90 Chandeshwar Pd. (PW 5) came to him and after seeing those photographs identified to be of his daughter Indu Kumari. Now the question arises why the father, brother and uncle of Indu Kumari will speak lie that the photographs (Ext. II to II/4) are of Indu Kumari. According to the defence the answer to this question is that it was Chandeshwar Prasad (PW 5), the father of Indu Kumari himself who along with others committed murder of Indu Kumari because he had seen her daughter in compromising position with one Shiv Balak Rai in the night between 27th and 28th January, 1990 and a complaint (Ext. 22) was filed against him and others and in order to screen himself from that offence he has falsely implicated the appellants in this case and he is now identifying the photographs of an unknown and unidentified lady to be of Indu Kumari and has come up with a new story for falsely implicating the appellants. No doubt the complaint petition (Ext. 22) was filed by appellant Nageshwar Pd. Singh against PWs 5, 4 and 2 who are father, uncle and brother, respectively, of Indu Kumari and Ganga Mistri (PW 3), Sahjanand Sharma (PW 1) and others but it was filed on 28-7-90 for an occurrence which was alleged to have been taken place on 28-1-90. Admittedly, this complaint petition was filed after delay of 7 months. This complaint petition was sent to police for instituting a case and investigation and after investigation it was found false which is apparent from final report (Ext. 21) and it further appears that police recommended for prosecution of complainant and his witnesses under Sections 182 and 211, IPC. The case of the defence is that a protest petition against this report of police was filed and the Court ordered for examination of complainant on S. A., which is apparent from Exts. 20 and 20/1, which are the order-sheets of Court of SDJM, Hilsa. The defence has not been able to disclose what was the result of protest petition filed on its behalf. If no inference is taken from the nondisclosure of the result of the protest petition filed by Nageshwar Prasad against the police report declaring his complaint against the father, brother and uncle of, Indu Kumari false, it is evident that complaint was filed after 7 months of an alleged occurrence. Not only this, in the complaint petition, nowhere it has been mentioned that Indu Kumari was having any relationship with Shiv Balak Rai. It is simply stated that on 28-1-90 the lather, brother and uncle and others were found taking Indu Kumari in a taxi towards Patwah when they did not return till 4-2-90 to Hilsa, the appellant Nageshwar Prasad on 8-2-90 went to Hilsa where he found the house of Chandeshwar Prasad closed and on 9-2-90 he went to village Milki Doradih where he inquired from Chandeshwar Prasad and other persons about Indu Kumari on which he was assaulted and was handed over to police who implicated him in a false case and sent him to jail. So, it appears that on 4-2-90 when Chandeshwar Prasad after seeing the photographs (Exts. II to II/4) of deceased identified that those photographs were of his daughter Indu Kumari, the complaint case filed by Nageshwar Prasad was not in existence. Under these circumstances, there was no occasion for him to wrongly identify the photographs of an unknown deceased shown to him by I.O. to be of his daughter Indu Kumari. Besides this, it looks very peculiar that at one hand the defence is saying that deceased of this case was not Indu Kumari but on the other hand it says that Indu Kumari is not alive and she has been killed by her own father, uncle, brother and others. About the time of death of Indu Kumari the defence is also giving the same time which is the time of recovery of a lady in unconscious condition because in the complaint petition (Ext. 22) the date of occurrence is between 28-1-90 and 4-2-90. Considering these facts we find that prosecution has proved that the lady which was found by police on 9-1 -90 thrown in a ditch in unconscious condition and who subsequently died was Indu Kumari, the daughter of Chandeshwar Prasad (PW 5) and wife of appellant Rajeshwar Prasad.
8. All the appellants in this case have been charged under Sections 302/34 and 201, IPC besides 304/34 and 498A, IPC. On the point of charges under Sections 302/34 and 201, IPC we find that there is no direct evidence against appellants for committing the murder of Indu Kumari or disposing of her dead body. The Court below on the basis of some circumstances held the appellants guilty under these heads. Sahja Nand Sharma (PW 1), in his evidence, has stated that on 8-1-90 at about 8 - 10.30 a.m. he went to the house of appellant Nageshwar Pd. Singh situate at Mehandiganj where he found a jeep parked at the gate of his house and all the appellants were standing there and wife of appellant Rajeshwar Prasad was lying in an unconscious state. When he asked appellant Nageshwar Prasad what was the matter he did not get any reply and thereafter all the appellants put the wife of Rajeshwar Prasad in the jeep and appellant Kaushalya Devi put a lock on the house" and all the appellants went on jeep. On the next day, he went to his sister to Neema and after about 18-19 days he went to Hilsa where at the bus stand he came to know from the shopkeepers that appellant Rajeshwar Prasad after killing his wife had thrown her dead body and he also came to know there that wife of appellant Rajeshwar Prasad was daughter of Chandeshwar Prasad of village Chaukiya Hurari. He then went to the shop of Chandeshwar Prasad situated at Hilsa and found his shop closed. He again then went to Hilsa on 15-2-90 and at that time he found the shop of Chandeshwar Prasad open and he told him about the aforesaid facts and thereafter on 15-2-90 he was taken to Agamkuan Police Station by Chandeshwar Mahto where photographs of deceased were shown to him. He identified those photographs to be the daughter of Chandeshwar Prasad and police recorded his statements. Ganga Mistry (PW 3), a carpenter has said that from 8-12-89 to 22-12-89 he had worked as carpenter in the house of Nageshwar Prasad Singh at Mehandiganj and for this reason he knew his family members. He has further stated that appellants were not behaving properly with Indu Kumari and sometimes appellant Rajeshwar Babu and Nageshwar Pd Singh used to assault her. He has further stated that on 8-1-90 he had gone to Bari Pahari from where he was returning and at about 9 p.m. when he reached turning of Bari Pahari he found a jeep standing there and appellants except Kaushalya Devi standing behind the jeep. When he went near the jeep he found appellant Kaushalya Devi sitting in the jeep and wife of appellant Rajeshwar Prasad lying on the seat in unwell condition. He asked appellant Nageshwar Prasad Singh for giving some work on which appellant Nageshwar Pd. Singh told him to come later on as he was in hurry. On 25-3-90 when he went to the house of Nageshwar Prasad his house was closed. When he inquired from the land lady of the house about Nageshwar Prasad he was told that he is in jail and a criminal case had been lodged against him and his family members and his Samdhi Chandeshwar Prasad knows the details. He then went to Chandeshwar Prasad who was not known to him from before and told him about the jeep, appellants and Indu Kumari on 8-1 -90 near Bari Pahari. He was taken to police station where his statements were recorded on 27-1-90. Except these two witnesses there is no other witness on behalf of prosecution who has deposed on the point of murder of Indu Kumari and throwing her dead body. From the evidence of the aforesaid two witnesses it appears that both are chance witnesses. Sahja Nand Sharma (PW 1) has clearly stated that he was not knowing the name of deceased and only about 18-19 days after 8-1 -90 he came to know by shopkeepers of Hilsa Bus Stand that deceased was daughter of Chandeshwar Prasad of Village Chauriya Hurari. Besides this, he came to know from them that appellant after killing Indu Kumari had thrown her dead body. He has not given the name of any shopkeeper. It is also not believable that how after coming to know that wife of appellant Rajeshwar Prasad was the daughter of Chandeshwar Prasad of village Chauriya Hurari he straightaway went to the shop of Chandeshwar Mahto. Not only this, on that day he found the shop closed and he then again on 15-2-90 went to Hilsa to inform Chandeshwar Prasad. It does not come to reason that why none of the shopkeepers of Hilsa Bus Stand went to the shop of Chandeshwar Prasad at Hilsa to inform him about the occurrence because according to the evidence of this witness the shopkeepers not only were knowing that daughter of Chandeshwar Prasad was married to appellant Rajeshwar Prasad but they were also knowing that appellants after committing murder of Indu Kumari had thrown her dead body. A suggestion to this witness was given that he had not stated earlier that on 15-2-90 he had gone to Hilsa where he found the shop of Chandeshwar Prasad open and he narrated him the fact. Although he has denied the suggestion but PW 13 in his evidence has stated that this witness had not stated this fact before him. Similarly the evidence of Ganga Mistry (PW 3) does not appear to be convincing. He says that on 25-3-90 when he went to the house of appellant Nageshwar Prasad he found the house locked and the land lady of the house told him that a criminal case had been filed against appellants the details of which were known to Chandeshwar Prasad (PW 5). His evidence suggests that on 25-3-90 he had gone to house of Nageshwar Prasad for demanding some work because on 8-1-90 when he had asked for work he was told by appellant Nageshwar Prasad to come later on. He is a carpenter and on 25-3-90 after hearing for the first time the name of Chandeshwar Mahto (PW 5) from the land lady of the house of appellant Nageshwar Prasad, he searched for Chandeshwar Mahto in order to tell him what was seen by him on 8-1 -90. This seems quite unnatural. A suggestion was given to this witness that in his earlier statement he had not: stated that appellant Nageshwar Pd. Singh on 8-1 90 had told him to see him later on when he asked for work and at that time appellant Nageshwar Prasad was in hurry which he has denied but the I.O. (PW 13) in his evidence has said that this witness had not stated these facts before him. Admittedly PW 1 and PW 3 have been examined at a belated stage and they both met Chandeshwar Prasad who had taken them to I.O. for recording their statements. If the facts that: these witnesses are chance witnesses, there are material contradictions in their evidence and earlier statements and their evidence does not inspire confidence are kept aside, even then their evidence taken on its face value does not prove the charge of murder of Indu Kumari and disposing of her dead body against the appellants. Besides this, Dr. Chandeshwar Prasad. (PW 12) who conducted autopsy on the dead body of deceased has not given the exact cause of death. In view of this fact the charges under Sections 302/34 and 201, IPC are not proved against the appellants and accordingly fail.
9. On the point of charges under Sections 304B/34 and 498A, IPC against the appellants it is the case of prosecution that deceased Indu Kumari was being tortured on demand of dowry by the appellants. Even before the marriage of Indu Kumari with appellant Rajeshwar Prasad there was demand of dowry which fact has been brought on record by adducing evidence. Chandeshwar Prasad PW 5 has stated that his daughter Indu Kumari was married to Rajeshwar Prasad on 20-1-86 nad before it on 12-1-86 and 16-1-86 he had deposited a total sum of Rs. 28000/- in two banks in Fixed Deposits in the joint names of Indu Kumari and appellant Rajeshwar Prasad and besides this, he had given clothes and articles woth Rs. 12,000/- as gift to appellant, Rajeshwar Prasad. His evidence has been supported by his brother Rameshwar Prasad (PW 4). Ram Prasad Das (PW 5) and Prakash Narayan Singh (PW 6) who are Cashiers of State Bank of India, Hilsa and Branch Manager, Nalanda Gramin Bank, Hilsa, respectively, have proved the Special Term Deposit Pay-in-Slip (Ext. 3), form of opening Special Term Deposit Scheme (Ext. 4), counter foil of Fixed Deposits (Ext. 6), account opening form (Ext. 7) and photo copy of bank ledger (Ext. 8). From these documents it appears that on 12-6-86 a sum of Rs. 20,000/- was deposited in the joint names of appellant Rajeshwar Prasad and Indu Kumari in Special Term Deposit in SBI, Hilsa Branch and on 16-6-86 a sum of Rs. 8,000/- was deposited in their joint names in Nalanda Gramin Bank in Fixed Deposit. Chandeshwar Prasad (PW 5) and his brother Rameshwar Prasad (PW 4) have stated that Indu Kumari was married to appellant Rajeshwar Prasad on 20-6-86. Against it the case of the defence is that marriage had taken place on 20-5-86. The defence is not denying the deposit of Rs. 28,000/- on 12-6-86 and 16-6-86 in the joint names of Rajeshwr Prasad and Indu Kumari in two banks but according to it, as the marriage had already taken place on 20-5-86 this amount was deposited after the marriage and appellants got the amount deposited. The defence has not adduced any evidence on the date of marriage except the suggestion given to P.W. 5 that marriage was solemnized on 20-5-86. Ext. 6 which is pay-in-slip for a sum of Rs. 8,000/- bears the signature of Chandeshwar Prasad on its back as depositor of the amount. If the marriage has taken place before 16-6-86 when this amount was deposited the question of depositing money by Chandeshwar Prasad on behalf of appellant Rajeshwar Prasad and his daughter would not have arisen because they themselves could have easily deposited the money. But because this amount as alleged by the prosecution was deposited before the marriage, therefore, the amount was deposited by Chandeshwar Prasad on behalf of this daughter as well as on behalf of his would be son-in-law as dowry. Here the question of deposit of amount by Chandeshwar Prasad in the joint names of Indu Kumari and appellant Rajeshwar Prasad before or after the marriage does not require much consideration. Equally it is also of not very much importance for the purpose of deciding the charges under Sections 304B and 498A, IPC against the appellants that who actually deposited this amount whether Chandeshwar Prasad, PW 5 or the appellants. It is the question that after marriage Indu Kumari was tortured and harassed on account of dowry which requires consideration. By adducing evidence that even prior to the marriage father of the deceased had deposited amount in the name of appellant Rajeshwar Prasad and his daughter the prosecution has brought on record a circumstance to show that demand of dowry had started even before the marriage. Now coming on the evidence that after marriage of Indu Kumari demand of dowry continued, Dharambir Prasad (PW 2) has stated that his sister Indu Kumari after her marriage on 20-6-86 went to her ''Sasural'' and thereafter he went there for bringing her when she told him that appellants, namely, Rajeshwar Prasad, Nageshwar Prasad, Ashok Kumar and Kaushalya Devi were demanding a sum of Rs. 35,000/-, a colour T. V. and a fridge. He then brought his sister to his house. In the month of Aaghan of 1989. After Roksadi, his sister went with her husband. One week thereafter he went to Mehandiganj to his sister. Then also she told that all the appellants were demanding a sum of Rs. 35,000/- a colour TV and a fridge and had told her that in case of non-fulfillment of their demand they would not allow her to remain in peace and they were abusing her and not allowing her to write letters. Then he returned to his house and told about it to his father, mother, uncle etc. Rameshwar Prasad (PW 4) the uncle of deceased, supporting the evidence of PW 2 has stated that P"W 2 had told him about demand of appellants for dowry. He has said that he had also gone to Mehandiganj and met all the appellants and at that time also all the appellants demanded a sum of Rs. 35,000/-, a colour TV and fridge. Chandeshwar Prasad, PW 5, has also said about demand of dowry. The case of the appellants is that there was no occasion for them to make any demand of a sum of Rs. 35,000/-, a colour TV and fridge and evidence of prosecution witnesses that after marriage Indu Kumari started living with them at Mehandiganj Mohalla at Patna is false and even after marriage she used to reside with her father in the year 1989-90 because she was continuing her studies. Her father Chandeshwar Prasad by his letter dated 30-12-89 (Ext. E/4) addressed to appellant Nagheshwar Prasad had written that ''Roksadi'' of Indu Kumari would be in the month of April - May after her I A examination. Rama Kant Thakur (DW 1) and Sanjay Kumar (DW 2} have stated that they both were reading with Indu Kumari in College but they have not given the period when they were so reading. Maheshwari Pd. (DW 4) has proved an application form for admission of Indu Kumari in Sardar Patel College, Hilsa which is marked Ext. G. and he has also proved some entries in Combination Registers which are for attendance of students and marked as Ext. Z series. Ext. H is entry for Roll No. 137 which, according to the defence, was the Roll No. of Indu Kumari and it is in respect of attendance in the year 1989-90 for 1st Year of Session 1988-90. Ext. H/7 is entry for attendance of same roll number 137 for the year 1989 in 2nd year. This clearly shows that entries are quite contradictory and from these entries it can-not be said that Indu Kumari was attending classes in a College at Hilsa. About letter (Ext. E/4) said to be written by Chandeshwar Prasad (PW 5} on 30-12-89 that Roksadi of Indu Kumari would be in the month of April, May after her I. A. examination, Chandeshwar Prasad has denied to have written this letter. The Court below has rightly observed that in absence of any evidence by a hand writing expert it cannot be said that this letter was written by Chandeshwar Prasad (PW 5). On the other hand, it is the specific evidence of father, brother and uncle of the deceased that after marriage Indu Kumari was residing in her Sasural. So there cannot be any doubt about the evidence adduced by the prosecution on this point. Now coming to the demand of dowry by all appellants, here we find that Dharambir Prasad, PW 2, the brother of deceased Indu Kumari has stated that when he had first gone to the Sasural of his sister, she told him that appellants, namely, Rajeshwar Prasad, Nageshwar Prasad, Ashok Kumar and Kaushalya Devi were making demand of Rs. 35,000/-, a colour TV and fridge. He has not included the name of appellant Ramesh Kumar. Rameshwar Prasad (PW 4) the uncle of deceased has stated that when he had gone to meet the appellants, all the appellants had made demand of money, fridge and T. V. He has further stated that his nephew Dharambir Prasad (PW 2) after coming from the Sasural of his sister, the deceased, had told him that appellants were demanding a sum of Rs. 35,000/-, a colour TV and fridge they were not allowing her to write letters and also assaulting her. A suggestion to this witness was given that he did not state this fact in his earlier statements which has been denied by this witness but then the I.O., PW 13 has stated that these facts were not stated by him earlier. Similarly Chandeshwar Prasad, PW 5 has stated that at the time of ''Roksadi'' all the appellants along with friends of Rajeshwar Prasad had come to his house but the I.O P.W. 13 has stated that he had not stated before him that all the appellants had come at the time of Roksadi and earlier he had simply stated that only Rajeshwar Prasad and his friends had come to his house at the time of Roksadi. All these facts taken together show that the prosecution witnesses have made an attempt to rope all the appellants in this case on the point of demand of dowry and torturing the deceased on this score. Besides this, it is the case of defence that appellant Nageshwar Prasad Singh was posted at Hazaribagh. Dinesh Prasad (DW 6) has proved entries (Exts. J. & K.) in the casual leave register and staff attendance register in order to show that in the year 1990 Nageshwar Prasad had not taken any leave and he had checked the attendance of staff in the month of January & February, 1990. Manoj Pandit (DW 8) has stated that appellant Nageshwar Pd. Singh used to reside in his house at Mehandiganj since 1989 on a monthly rental of Rs. 350/-and on 6 or 7th February, 1990 he has left Hazaribagh for going to native home from where he returned after 5-6 months. Balmiki Prasad (DW 9) has said that appellant Ashok Kumar was his class fellow in M.Sc. in A. N College, Patna and in the year 1989 they both were residing in Krishnapuri at Patna.
10. The Apex Court in the case of
11. In the present case so far the question of appellant Rajeshwar Prasad, the husband of deceased Indu Kumari is concerned, there is evidence against him for demand of dowry causing torture and harassment to his wife. This is evident from his three letters, Ext. 1 series. Ext. 1 dated 18-5-87 and Ext. 1/2 dated 11-11-89 are addressed to Chandeshwar Prasad whereas Ext. 1/1 dated 31-5-87 is addressed to his wife Indu Kumari. In letter (Ext. 1) he has demanded money from his father-in-law Chandeshwar Prasad. Within a month, in letter (Ext. 1/1) addressed to his wife he has complained that her father was not giving any reply on his demand of money and perhaps he (father of deceased) was trying to play some game but he will not succeed because he (appellant Rajeshwar Prasad) also knows some game. According to defence, this demand was in respect of money which Chandeshwar Prasad (PW 5) had borrowed from Ram Sanehi Prasad (DW 5) and when he could not return this amount to Ram Sanehi Prasad, it was the appellant Rajeshwar Prasad who had returned money to Ram Sanehi Prasad and this was the money which was demanded by Rajeshwar Prasad by his letters. Ram Sanehi Prasad (DW 5) in his evidence, has stated that he had given loan of Rs. 10,000/- to Chandeshwar Prasad before marriage of deceased and this money was returned to him by appellant Rajeshwar Prasad. In cross examination he has admitted that appellant Nageshwar Prasad is his cousin. No doubt daughter of his sister has been married to son of Chandeshwar Prasad which has been admitted by Rameshwer Prasad (PW 4) but then he is more closely related to appellant Rajeshwer Prasad. Besides this, in the letter (Ext. 1) nowhere appellant Rajeshwar Prasad has stated that he was demanding back the money which he had given to this witness. Of course, in subsequent letter (Ext. 1/2) written after about 2 1/2 years from the first letter he has stated that he was demanding his own money but even then this fact does not prove that he was demanding money which he had given to Ram Sanehi Prasad against loan taken by Chandeshwar Prasad. So we find that against Rajeshwar Prasad there is evidence that he made demand of dowry and letter (Ext. 1/1) written to his wife leaves no room for any doubt that this demand of money by him from his father-in-law Chandeshwar Prasad caused harassment and torture to Indu Kumari. Indu Kumari was found by police thrown in a ditch in unconscious stale and evidence of Dr. Jitendra Nath Shrivastava (PW 8) shows that she had burn injuries on her left breast, upper abdomen, right forearm, left thigh and leg and abrasion and eccymosis around neck (sign of strangulation by rope). She subsequently died. These facts prove that Indu Kumari died in circumstances which were not natural. In this view of the matter, when Chandeshwar Prasad, his brother and son found that Indu Kumari had died in the aforesaid circumstances it is quite natural that they might have been aggrieved and the possibility of making attempt by them to implicate all the appellants in this case cannot be ruled out. The prosecution case against the appellants except appellant Rajeshwar Prasad, husband of deceased, appears doubtful. But so far the case of appellant Rajeshwar Prasad is concerned we find that the prosecution has, by bringing on record the demand of dowry, the evidence of close relations of deceased that on the demand of dowry she was being subjected to cruelty and her death in circumstances not normal, proved charges u/s 304(B)/498A, IPC against him beyond all reasonable doubts. We therefore find that conviction of appellants, namely, Nageshwar Prasad, Ashok Kumar, Ramesh Kumari and Kaushalya Devi under Sections 302/34 201 304(B)/34 and 498A, IPC and sentences passed against them cannot be sustained. But so far appellant Rajeshwar Prasad is concerned charges under Sections 304(B)/ 498A, IPC are proved against him. He is however not found guilty under Sections 302/34 & 201, IPC.
12. In the result, Criminal Appeal No. 251 of 1993 is allowed and order of conviction and sentence passed against the appellants, namely, Nageshwar Prasad alias Nageshwar Pd. Singh, Kaushalia Devi, Ashok Kumar and Ramesh Kumar alias Ramesh Prasad is Set aside and the appellants, who are on bail, are discharged from the liability of their bail bonds. So far as Criminal Appeal No. 310 of 1993 is concerned in which appellant Rajeshwar Prasad is the sole appellant, this appeal is allowed in part and the conviction and sentence of appellant Rajeshwar Prasad under Sections 302/34 and 201, IPC is hereby set aside but his conviction under Sections 304(B) and 498A and sentence u/s 304(b) are hereby confirmed.
D.P.S. Choudhary, J.
13. I agree.
