REKHA KUMARI, J.
(1.) This appeal is directed against the judgment dated 31-1-2002 passed by Sri Amaresh Kumar Lai, 6th Addl. Sessions Judge, Chapra in S. Tr. No. 312/99 by which he has convicted the appellant under Ss. 304-B and 201,I.P.C. and has sentenced him to undergo imprisonment for 14 years for offence under S. 304-B, I.P.C. and 3 years for the offence under S. 201, I.P.C. with a direction that the sentences would run concurrently.
(2.) The prosecution case, in brief, is that Kanchan Kumari, the daughter of the informant, was married to the appellant- Satyendra Kumar Gupta on 2-7-1997. Co- accused-Baijnath Sah, the maternal grand father of the appellant had adopted the appellant as his son. So, after marriage the girl went to the house of accused-Baijnath Sah at village Repura and started living there. On 20-7 1997 the maternal uncle of the informant came and informed them that on 15-7-1997 Kanchan Kumari was pushed down in river from Katasa bridge as a result of which she was drowned and died. On this, the informant, his son Raja Ram Prasad, went to the house of accused-Baijnath Sah, when the accused informed them that the appellant had taken his wife to his father's house at village Uchaketuka ten days back and he was not aware of his whereabouts since then. The informant along with his son and one Santosh Kumar of Repura then made extensive search of his daughter, and learnt that one dead body was floating in river near Siswani Mathiya. They went there and saw that the dead body was thoroughly eaten up by animals. Only the Sari, Lahthi (bungles) and Saya (petticoat) were there on the body. He identified the dead body to be of his daughter Kanchan Kumari on the basis of clothes as the clothes were given by him. It is further alleged that during marriage the appellant had demanded a T.V. and motorcycle, but as he could n
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ot meet the demand, the appellant was annoyed. The informant, hence, apprehended that for nonfulfillment of demand, the appellant, his maternal grand father Baijnath Sah and Khublal Sah (father of the appellant) committed the murder of his daughter and caused disappearance of the dead body.
(3.) On 22-7-1997 at 18 hours at Bheldi P.S. the Fard Beyan (Ext. 4) of the informant was recorded by the S.I. of Police, B. Ram, On the basis of the Fard Beyan formal F.I.R. (Ext. 3) was drawn up at Amnaur (Bheldi) P.S. The police after investigation submitted charge-sheet.
(4.) The appellant and the accused-Baijnath Sah faced trial. Both were charged under Ss. 304-B/201/120-B, I.P.C. They pleaded not guilty to the charges. Accused Baijnath Sah in his statement under S. 313, Cr. P.C. took the defence that after a few days of marriage, the appellant had taken his wife Kanchan Kumari to his father's house. The appellant in his statement under S. 313, Cr. P.C. stated that he had no knowledge about the whereabouts of Kanchan Kumari. Their further defence, as gathered from the suggestions given to the P.Ws., is that Kanchan Kumari was suffering from mental disease and on account of that she went away somewhere without their knowledge.
(5.) During trial the prosecution examined in all nine witnesses. P.W. 1 Ram Naresh Vishwakarma, P.W. 3 Jhalku Sah are seizure list witnesses. P.W. 2 is Raja Ram Prasad, the brother of the deceased. P.W. 4 is the informant, P.W. 5 Santosh Kumar Sah has stated that he does not know anything about the occurrence. He has been declared hostile. P.W. 6 Krishna Kumar Pandey is a formal witness and has proved the formal F.I.R. (Ext. 3), Fard Beyan (Ext. 4), seizure list (Ext. 5). P.W. 7 Ajay Kumar Rai and P.W.9 Raghu Rai claim to have seen the appellant fleeing after drowning the deceased in river. P.W. 8 Bhageran Sah is a hearsay witness and his evidence is not material for the decision of the case.
(6.) Learned trial Court after considering the evidence on record held that the prosecution has been able to prove the ingredients of S. 304-B against the appellant. He accordingly convicted only the appellant for the offence under Ss. 304-B and 201, I.P.C.and sentenced him as aforesaid.
(7.) Learned counsel for the appellant submitted that the prosecution has failed to prove the ingredients of S. 304-B and also the offence under S. 201, I.P.C. The Fard Beyan (Ext. 4) is not actually the first information of the case and the prosecution has intentionally suppressed the actual F.I.R. to suit its purpose. The dead body has not been properly identified. The I.O. has not been examined in the case causing prejudice to the appellant.
(8.) In order to appreciate the submissions of the learned counsel I have gone through the entire evidence.
(9.) In order to seek a conviction under S. 304-B the prosecution is obliged to prove the following circumstances :
(i) The death of a woman had occurred within seven years of her marriage. (ii) Such death was caused by burn or bodily injury or had occurred otherwise than under normal circumstances. (iii) Soon before her death, she was subjected to cruelty or harassment by her husband or by any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with any demand for dowry.
(10.) As and when the above circumstances are established, a presumption of dowry death shall be drawn against the accused under S. 113-B of the Evidence Act.
(11.) Now, P. W. 4 (informant), the father of the girl, has stated that his daughter was married to the appellant on 2-7-1997. P. W. 2, the brother of the girl, has also stated that Kanchan Kumari was married to the appellant on 2-7-1997. It was of course not put to the appellant during his statement under Section 313 Cr. P. C. that he was married to the deceased on 2-7-1997, but he has admitted that he was married to Kanchan Kumari. Thus, it is admitted that Kanchan Kumari was married to the appellant and in view of evidence of P. Ws. 2 and 4, it is clear that the marriage had taken place on 2-7-1997. The prosecution case is that the death of Kanchan Kumari took place on 15-7-1997. So, it is proved that the death of Kanchan Kumari had taken place within seven years of her marriage with the appellant.
(12.) As regards the second circumstance, the evidence of the informant is that after receiving information of death of the daughter, they went to the house of accused Baljnath Sah, the maternal grand father of the appellant, at 5.30 P. M., but no male member was present there. Thereafter they went to Repura market where they learnt that on 15-7-1997 the appellant had left for his father's place at Uchaketuka. They went to Uchaketuka but they could not get any information about the appellant and his wife. Then, after some enquiry from the villagers they went to village Katsa where the villagers told them that on 15-7-1997 a man was seen taking his newly married wife on cycle at 12 in the night, and when there was no movement of people on the road, the man pushed the woman in the river and on the sound of falling, the villagers went to the river, but as the night was dark the body could not be seen. He has further stated that they further learnt that in the morning of 16-7-1997 the villagers had seen a dead body floating with red sari and blouse on her body. On this they started searching the dead body. On 22-7-1997 they found the dead body at Siswani Mathiya. The dead body was in a mutilated condition and on seeing the Sari, Blause and Lahthi (bangles) they identified the dead body to be of his daughter. He has stated that by keeping two persons there to guard the dead body, he went to Chapra where his Fard Beyan was recorded. In cross-examination he has stated that seeing the chest they knew that the body was of a female.
(13.) P. W. 2, who was with the informant, has also deposed to the same effect. He has also stated that when they reached the house of Baijnath Sah, he (accused) informed them that the appellant had taken his wife to Uchaketuka ten days before. He has stated that the dead body was not identifiable. The hands and legs of the dead body was not there; there was no skin or flesh on the body. There was only scull and chest bone. He has also stated that they identified the dead body by Sari, Lahthi. His evidence further is that they went to the bank of river with S. I., where places of Sari, Saya, Blause, Lahthi were seized.
(14.) P. W. 3 has stated that in his presence pieces of dead body, Sari, Blause, Saya, Lahthi were seized by the I. O. from the bank of river Shiswani. He has identified his signature (Ext. 1/C) on the seizure list. P. W. 1 another seizure list witness has stated that nothing was seized in his presence and his signature (Ext. 1) was obtained on a blank paper. He has been declared hostile.
(15.) The seizure list (Ext. 5) shows that the I. O. had seized the clothes, bangles from the bank of river Shiswani.
(16.) Thus, from the evidence of the above witnesses, it is proved that on 22-2-1997 a dead body with Sari, Blause and bangles was found near the bank of river, Shiswani. The evidence of P. W. 4 also proves that the dead body was of a female. The evidence also shows that P. Ws. 2, 4 claim to have identified the dead body by the sari, bangles etc.
(17.) But the evidence is clear that the dead body was wholly unidentifiable. Some bones were only there. P. W. 4 has also admitted that such Sari, Lahthi are available in market and there was no special mark of identification in the Sari, Lahthi. In the Fard Beyan P. W. 4 has stated that he had given the clothes, but there is nothing in the evidence of these witnesses that the clothes, bangles were purchased by the P. Ws. for the deceased or they had given clothes, bangles to the deceased. Hence, there appears substance in the submission of the learned counsel for the appellant that the identification of the dead body by P. Ws. 2, 4 cannot be relied upon and said that it was actually of Kanchan Kumari, daughter of the informant. The learned trial Court has referred to the decision of the Supreme Court in the case of Gade Lakshmi Mangaraja v. State of A. P. , reported in 2001(2) PCCR (S.C.) 158 : (2001) 6 SCC 205 : (2001 Cri LJ 3317), wherein the identification of stolen ornaments by the sons was upheld. But that decision would not be applicable in this case. Male members of a family also often see the ornaments worn by the female members of the family. So, they can identify such ornaments. But in this case there is no evidence that P. Ws. 2, 4 had ever before seen the clothes, bangles which were on the body.
(18.) So, on the basis of evidence of P. Ws. 2, 4 it cannot be said that the clothes, bangles were of deceased Kanchan Kumari.
(19.) But though on the basis of clothes, bangles etc. it was difficult to establish that the body was of the daughter of the informant, corpus delicti in some cases may not be possible to be traced out or recovered. Yet the fact of death may be proved like any other fact. In this case the evidence of the informant is that after marriage his daughter went to Repura with the appellant in the house of Baijnath Sah. The evidence of P.W. 2 shows that when after the information of death of his sister, only after a few days of marriage, they went to Repura, the sister was not there. The evidence of P. W. 2 also is that Ramjanam Singh had informed them on 20-7-1997 i.e. after five days of death about the death of girl, and this implies that no information regarding the death of the girl was given by the appellant or the co-accused to the informant. There is nothing till now to show that the girl was seen after 15-7-1997. No explanation has been given by the appellant as to what happened to the girl. On the other hand, his statement under Section 313 Cr. P. C. is that he had no knowledge about her whereabouts. Therefore, a reasonable inference can be drawn that the daughter of the informant is dead and in the circumstances of the case, the death was an unnatural one.
(20.) It has been suggested to the informant (P. W. 4) that on account of some mental disease the girl left the house. But the informant has denied the suggestion. The appellant in his statement under Section 313 has also not taken such defence. If the girl would have been traceless in that manner, then the appellant must have searched and given information regarding it to the informant, but as already mentioned, the information regarding the death was given after several days by Ramjatan Sah (maternal uncle of the informant). There is also no suggestion that the girl was searched by the appellant. So, his defence is not at all probable.
(21.) It, therefore, appears that though there is no satisfactory evidence that the dead body found on the bank of the river was of Kanchan Kumari, the circumstances prove, beyond doubt, that she is dead and the death had occurred otherwise than under normal circumstances.
(22.) So far the circumstances No. 3 and 4, the evidence of P. W. 4 the informant is that at the time of settlement of marriage there was a demand of a T. V. and motorcycle, but at the time of marriage the demand could not be fulfilled. P. W. 2 the son of the informant has stated that after marriage there was demand of motorcycle, which his father could not fulfil. The cross-examination of this witness shows that at the time of the function, when food including rice is served to the members of Barat, the above demand was made.
(23.) Therefore, from the evidence of the above two witnesses, it appears that during marriage T. V. and motorcycle were damanded by the appellant which, however, could not be fulfilled. But there is no evidence that the appellant was aggrieved for non-fulfilment of demand. There is also no evidence that the deceased was ever harassed or tortured much less for or in connection with demand of dowry. P. W. 4 has stated that Ramjanam Singh informed that as T. V. and motorcycle were not given, the family members of Baijnath Sah had committed the murder by pushing him down in the river from Katasa bridge. But the said Ramjanam Singh has not been examined to say as to how he could know all these. Then, as the death took place within a few days from the marriage it was, of course, not possible for the prosecution to collect the evidence of torture, but at the same time it cannot be presumed that the girl was actually tortured and that too for dowry.
(24.) The learned trial Court has relied on the evidence of P. Ws. 7, 9 of village Katasa in coming to the conclusion that the appellant had pushed the deceased from the bridge to the river as a result of which she died. Even if pushing down from the bridge to the river is treated as an act of cruelty soon before death, and for non-fulfilment of dowry, the evidence of these two witnesses show that they cannot be relied upon.
(25.) P. W. 7 has stated that on 15-7-1997 they were patrolling on behalf of the Panchayat, when at about 12 in the night they saw Satyendra Sah preparing Khaini and there was a married girl with him. He has further stated that they moved ahead and then heard something falling in the river. They returned but did not find the girl and saw the appellant running away. P. W. 9 has also stated that on that night at 12 he was on patrolling duty, when he saw the grand son of Baljnath Sah preparing Khaini on the bridge with his wife and when they moved southward, they heard a big sound and he turned back and saw that the appellant pushed his wife from the bridge and fled away.
(26.) Though they have stated that the appellant pushed down the girl from the bridge, P. W. 7 has admitted that no information regarding this was given to the Mukhiya or the Police Station. They were patrolling the village on behalf of the Panchayat. So, if they had seen such an occurrence and had identified the appellant fleeing it was most natural that they would have reported the matter at least to the Mukhiya. Then, P. W. 9 has admitted that he did not know the appellant from before nor had he seen him before. No Test Identification Parade has been held in this case. In Court he has, of course, identified the appellant but such identification without T. I. P. is a weak kind of evidence. Therefore, it looks doubtful that the witness had identified the appellant fleeing. His evidence also is that there were 12-50 persons on the bridge at that time. So, it is also unlikely that in their presence the appellant would push the girl from the bridge. To crown all, the witnesses have been cross-examined regarding their statements before the I. O. to contradict them that they did not give the above statements before the I. O.. But the I. O. has not been examined. So, a serious prejudice has been caused to the appellant and this alone is sufficient to reject the evidence of these witnesses.
(27.) So, the evidence of these witnesses is not sufficient to prove that actually the appellant had pushed down the deceased from the bridge to the river causing her death. Hence, even if the alleged pushing down is treated as cruelty soon before the death, the same is not established much less for or in connection with demand of dowry.
(28.) The evidence of P. W. 4 (informant) also is that at first he went to the S. P. and gave a written petition there and the S. P. sent that petition to the Bheldi P. S. That petition, hence, was actually the first version of the case. But that petition has not been brought on record. This also creates a doubt about the prosecution case.
(29.) Thus, considering all the facts, circumstances and the evidence on record, it appears that though the prosecution has been able to prove that the death of Kanchan Kumari, the daughter of the informant, had occurred within seven years of her marriage with the appellant and the death had occurred otherwise than under normal circumstances, the prosecution has failed to establish that soon before death she was subjected to cruelty or harassment by the appellant, or any of his relatives for or in connection with any demand of dowry.
(30.) Therefore, the appellant cannot be held guilty for dowry death punishable under Section 304 B. I. P. C. and the learned trial Court was not justified in convicting him thereunder. There is also no evidence that anybody had seen the appellant causing disappearance of the dead body. He hence could also not be held guilty under Section 201 I. P. C.
(31.) In the result, the appeal is allowed. The appellant is acquitted. The trial Court is directed to release the appellant, who is in custody, forthwith, if not required in any other case. Appeal allowed