JUDGMENT
R.N. Sahay, J.
1. The facts leading to the present appeal may be stated as follows:
2. The sole appellant in Criminal Appeal No. 112 of 1998 is Prafulla Kumar Mandal. There are two appellants in Criminal Appeal No. 50/1998, namely, Dinbandhu Mandal and Bharat Mandal. All the three appellants are own and full brothers. They are inhabitants of village Narayanpur, P.S. Ranishwar in the District of Dumka. Prafulla Kumar Mandal was married to Saraswati Devi. She was daughter of Sudhir Mandal and sister of Biranchi Pada Mandal. At the time of the marriage, the father of the bride agreed to pay Rs. 42,000/- in dowry, but actually Rs. 28,000/- could be arranged. Appellant Din Bandhu Mandal received Rs. 10,000/- while the appellant Bharat Mandal received Rs. 18,000/- as advance. The marriage was then performed with Saraswati Devi. After the marriage, Prafulla Mandal remained at his Sasural for three months, and only after Panchayati regarding payment of balance dowry amount, he took his wife Saraswati Devi to his house, whenever Saraswati Devi came to Naihar she told her brother that the balance of dowry amount must be given to her husband otherwise her in-laws would kill her. On 6.4.1995 Saraswati Devi died in a mysterious circumstance. No information was given to her parents about her death.
3. Birinchi Pada Mandal gave afardbeyan on 6.4.1995 to the Officer-in-charge, Ranishwar Police Station at Narayanpur on the basis of which a case under Sections 304/34 & 498-A, Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act was registered against these three appellants and Aloka Mandal, wife of Din Bandhu Mandal. The entire prosecution case is contained in the fardbeyan of Birinchi Mandal, which formed the prosecution case. The learned Additional Sessions Judge in paragraph 2 of his judgment has given the version of Biranchi Mandal, as extracted below.
2. The case of the prosecution, in brief, is that one informant Brinchi Pada Mandal, son of Sudhir Kumar Mandal has given his fardbeyan before police on 6.4.95 on Thursday at 10.45 a.m. before the officer-in-charge of Raniswar P.S. in village Narayanpur that his sister Saraswati Mandal has been married to Prafulla Mandal, son of late Hari Pada Mandal in village Narayanpur P.S. Raniswar, District Dumka one year ago according to Hindu custom, The marriage was fixed for Rs. 42,000/- before Dinbandhu Mandal and Bharat Mandal in which Rs. 10,000/- had been given to Dinbandhu Mandal and Rs. 18,000/- had been given to Prafulla Mandal. Accused Dinbandhu Mandal and Bharat Mandal were demanding rupees prior to marriage. After marriage his sister was not taken in Bidagiri due to rest amount which had not been paid by him and Saraswati Mandal & Prafulla Mandal lived in the house of his father for three months. Thereafter Prafulla Mandal went to the house of his father demanding the rest money. Thereafter, there was a Panchayati with respect to Bidagiri of the said lady, thereafter Saraswati Mandal was taken to Bidagiri in the month of Kartik. Whenever Saraswati Mandal came in his house she told that if the rest amount will not be paid, she will be killed. His sister along with Prafulla Mandal came in his house before Holi and at that occasion, she further told about paying the rest amount and further she told that if the rest amount will not be paid, she will not be allowed to alive and she was weeping. Prafulla Mandal was pressing for dowry amount and told that if the amount will not be paid, the consequences will be bad. After his repeated request, his sister and Prafulla Mandal went to village Narayanpur one day before Holi. On 5.4.95 (Wednesday) at about 4 a.m. Prafulla Mandal came to his house and demanded Rs. 3,000/- within three, to four days and further told that after receiving Rs. 3,000/- he will cultivate three Bighas of his land in lieu of non-payment of rest amount. He requested for the same but he went to his house by giving threatening to kill his sister. Having received information, he went to village Narayanpur on 6.4.95 and saw that his sister Saraswati Mandal was lying dead and blood was coming out from her nose and mouth and there was injury over the neck and neck was also swollen. He further found injury over elbow of right hand and also injury near right knee and face was swollen. His sister was pregnant. He claimed that Saraswati Mandal was murdered due to non-payment of dowry by Prafulla Mandal and his brother Dinbandhu, Nandlal, Bharat Mandal. The police has instituted a case and after completing investigation submitted the charge-sheet.
4. The learned trial Court by his judgment and order dated 21st January, 1998 in Sessions Case No. 244/95/208/96 acquitted Aloka Mandal for lack of evidence against her. The three brothers were convicted. The learned Judge recorded his finding in paragraph-15 of his judgment, as extracted below:
15. Since I have already held that the prosecution is able to, prove its case beyond all reasonable doubts against the accused persons. The marriage was fixed for Rs. 42,000/- out of which Rs. 10,000/- was paid to Dinbandhu Mandai and Rs. 18,000/- has been paid to Prafulla Mandal and rest amount of Rs. 14,000/- was not paid due to which Saraswati Mandal was subjected to torture and harassment and lastly, she was killed by the accused persons. Therefore, I hold accused Prafulla Mandal, Dinbandhu Mandal and Bharat Mandal are found guilty of the charges under Sections 304 and 498-A I.P.C. and they are further held guilty of the charges under Section 3 read with Section 4 of the Dowry Prohibition Act and accordingly, these three accused persons are convicted thereunder.
5. The appellants have been sentenced to ten years’ R.I. under Section 304-B I.P.C. and 5 years under Sections 3 & 4 of Dowry Prohibition Act. No separate sentence under Section 498, I.P.C. was passed. Birinchi Mandal, the brother of the deceased was the main witness in the case. His evidence reveals that he received news of death of his sister on 6.4.1995. He believed his sister had been murdered by the appellants as well as by the acquitted accused Aloka Mandal. He went to the police station and after some time saw the dead body of his sister being brought to the police station. He noticed blood cozying out of her nose and black spot on her neck. He has stated that Rs. 28,000/- was paid as advance dowry which was received by Din Bandhu Mandal and Bharat Mandal. They, however, were demanding the balance amount of Rs. 14,000/- which remained unpaid. The marriage was performed at Bakeshwar Temple according to the Hindu custom by Baidyanath Thakur, the priest of the temple. Several witnesses/persons had attended the marriage. After the marriage Saraswati Devi was taken to her Naihar and Prafulla Mandal also stayed with her for three months due to non-payment of the balance amount of dowry. Thereafter, a Panchayati was held and only then on promise that the balance amount would be paid within three months, the appellants Prafulla Mandal took his wife to his house. Then, they were frequently visiting her ‘Naihar’ and whenever Saraswati Devi came, she made complaints against her in laws and requested her father to pay the rest of the amount as she had been regularly tortured. She was also threatened with dire consequences if the amount would not be paid. In Holi Prafulla Mandal came and demanded Rs. 3,000/- and wanted 3 bighas of land in lieu of the balance amount of the dowry. When Biranchi Mandal reached the police station, he was informed about a murder in Narayanpur, where a police party had gone. Din Bandhu Mandal was seen coming behind Bullockcart carrying the dead body of his sister.
6. The evidence of Deepak Kumar Mandal (P.W. 1) as it appears has created confusion. He is brother of the deceased. According to the F.I.R. the fardbeyan was recorded in village Narayanpur on 6.4.1995 at 10.45 p.m. But according to Deepak Kumar Mandal, the F.I.R. was lodged in police station and not in village Narayanpur. The inquest report was prepared at village Narayanpur, and Deepak Kumar Mandal is a witness on the inquest report, but he has stated that the same was prepared at police station. Other two witnesses on the inquest report have not been examined. All the witnesses are of village Jhoramath. There is no witness from village Narayanpur. The case is based entirely on circumstantial evidence. There is no eye-witness. The death had taken place only after one year of the marriage of the deceased. She died an unnatural death for which there is no explanation coming from the accused persons. There is strong evidence that there was difference and unpleasantness between father and brother of the deceased on one hand and the accused persons on the other hand over demand of dowry. Part of dowry was paid; part of the dowry could not be managed, and her father had to sell land for fulfilment of the demand of dowry. He offered the land to Prafulla Kumar Mandal.
7. So far as oral evidence is concerned, Deepak Mandal (P.W. 1), the brother of the deceased, learnt about the murder of his sister in the morning. He also found that his brother-in-law was responsible for the murder of his sister. On hearing the sad news he proceeded to the Sasural of his sister. On the way at Raghunathpur, he came across the bullock-cart on which dead body of his sister was being taken to the police station. This witness was accompanied by Dukhaharan Mandal, his brother Biranchi Mandal and some other villagers. All of them followed the bullock-cart to the police station. He saw the dead body of his sister. He saw blood coming out from nose. There were marks on the neck and the entire dead body. It appeared that burn marks were present on the entire dead body. She was pregnant at the time of her death. This witness has stated that Rs. 42,000/- was agreed to be paid in dowry but only Rs. 28,000/- could be arranged. They promised to pay the balance Rs. 14,000/- later. After marriage Prafulla remained at the Sasural for two months and was not taking ‘Bidagari’. The reason was that the balance of dowry amount could not be arranged. So it was promised and it was arranged that in lieu of money some land would be given to Prafulla. Then only his sister was taken to her Sasural. She was looked after well for some time by the Sasural people. But later they started torturing her for non-payment of the balance money. Prafulla Mandal once came and threatened them because the land was not given to him, nor the money was paid and he also threatened to kill her. It happened in presence of Saraswati Devi. Then, she was taken away by force by her Sasural by Prafulla. This witness further stated that all the three brothers lived in the same house jointly and at the same time he admitted that he had visited their house only once.
8. Dukh Haran Mandal (P.W. 3) has supported the case of prosecution in regard to the demand of dowry by the appellant. He heard Saraswati Devi saying that there was danger to her life if the entire dowry was not paid. This witness stated contrary to what is stated by P.W. 1 Deepak Mandal that all the three brothers were living separately. Gopal Krishna Mandal (P.W. 4) also supported about the demand of dowry but he has stated that only Prafulla Mandal used to vex his father-in-law for dowry. This witness had gone to the police station and had seen the dead body.
9. Sunil Pal (P.W. 8) was present in the marriage of Prafulla with Saraswati, which was performed at Bakeshwar Mandir. He has supported other witnesses in respect of demand of dowry and torture.
10. Amrit Lal Mandal (P.W. 9) is another witness on the point of demand of dowry. He stated that it was not a arranged rather a love marriage. This witness is related to the deceased. He has stated that Rs. 28,000/- was paid in dowry out of the agreed amount of Rs. 42,000/ -. Prafulla with his wife stayed for three months in his Sasural. There was Panchayati and then only the girl was taken away. He has deposed that the girl was being tortured for the balance amount of the dowry. The talk of dowry was done with the three appellants. This happened in presence of this witness.
11. Sudhir Mandal (P.W. 10) aged 70 years who is father of Saraswati is another important witness. He has spoken about demand of dowry in detail. Prafulla remained there for three months. There was Panchayati and only then Prafulla took his wife. He had paid Rs. 10,000/- to Din Bandhu Mandal at the first instance and later Rs. 18,000/- was paid to Prafulla. Prafulla came and told him that Dinbandhu had sent him for the remaining amount. Prafulla also told him that if the amount was not paid, marriage would take place in Bakeshwar Temple. The appellant accused persons also threatened Saraswati. Whenever she came, she wept and complained that she had been married in such a family that she would not survive. At the time of Holi, Prafulla came and demanded Rs. 3,000/-. He had learnt about death of his daughter from Dukh Haran Mandal. He was not given information of the death before the dead body was taken to the police station. When he reached along with other to the police station, then he learnt that his daughter was murdered at Narayanpur and police party had gone there. He denied the suggestion that actually that there was no marriage.
12. Birinchi Pada Mandal (P.W. 11) is the son of Sudhir Mandal and brother of the deceased. He learnt about the death of his sister in the night of 6.4.1995 that his sister had been murdered. He went to the police station and after some time dead body of Saraswati was brought on bullock cart to the police station. Blood was coming out of nose and there was black mark on the neck. He had also said that Rs. 10,000/-was paid to Dinbandhu Mandal and Rs. 18,000/- to Prafulla Mandal. Prafulla lived in his Sasural for three months. There was a village Panchayati, in which Din Bandhu and Prafulla were present. It was promised that the money would be paid in three months. They agreed to take the girl. This witness also stated that Prafulla had said that if the money was not paid consequence would be bad. It was agreed that if the money was not paid, land should be given.
13. Subodh Kumar Mandal (P.W. 12) was posted at Ranishwar Police Station. He recorded the fardbeyan of Birinchi Mandal at 10.45 p.m. at Narayanpur on 6.4.95 He registered a case. After preparing inquest report, the dead body was sent for post-mortem. He inspected the room where the dead body of the deceased was lying. The dead body was on a mat.
14. Shyam Prasad Dutta (P.W. 13) has proved the, sanction order of the D.C. Md. Ahsan (P.W. 14) is the Advocate’s clerk who proved the post-mortem report written by Dr. Sharad Kumar Singh. The doctor was not examined.
15. Learned trial Judge has discussed the evidence of witnesses in para-5 of his judgment. He summed up his findings in para-7 of the judgment, as extracted below:
7. It is an admitted fact that Saraswati Mandal is resident of village Joramath and accused persons are resident of village Narayanpur in the same Ranishwar P.S. District-Dumka. It is also admitted fact that the deceased died whose inquest report was prepared vide Ext-4 and his post-mortem examination was conducted vide Ext. 8 and Ext. 5 is challan handed over to Birendra Singh for post-mortem examination. It is argued on behalf of the prosecution that the prosecution is able to prove its case beyond all reasonable doubts against the accused persons on the strength of material available on the record like, oral and documentary evidence both. There is consistent evidence of P.W. 11 informant and P.W. 1 who are brother of the deceased and P.W. 10 who is father of the deceased, as well as other independent witnesses of village Joramath that the marriage was fixed for Rs. 42,000/- out of which Rs. 10,000/- was paid to Dinbandhu Mandal eldest brother of Prafulla Mandal and Rs. 18,000/- was paid to Prafulla Mandal and rest amount of Rs. 14,000/- was to be paid which was not paid by them. P.W. 10, the father of the deceased has specifically stated that when the rest amount of Rs. 14,000/- was not paid then marriage took place and solemnized in the Bakeshwar Temple. Witnesses have stated that after marriage Saraswati Mandal and Prafulla Mandal both lived in the house of father of the deceased for three months and thereafter Prafulla Mandal went to his house and no Bidagiri took place. Thereafter Panchayati took place between them in presence of villagers of both sides. Thereafter Saraswati Mandal was taken back to her Sasural, but her husband and his family members were torturing her for the rest amount of Rs. 14,000/- and lastly they have killed Saraswati Mandal. The informant has proved photograph of Prafulla and deceased which is marked Ext.-I. Thus, the marriage between them is proved by cogent evidence against the accused persons beyond all reasonable doubts.
16. Learned trial Judge has also referred the post-mortem report (Ext.-8), although the doctor who had conducted post-mortem examination was not examined. The learned Judge could not have relied upon the post-mortem report, which is not admissible.
17. It was argued on behalf of the accused that admittedly, the marriage between Prafulla and Saraswati was not arranged marriage but a love marriage ad the evidence of the prosecution that heavy dowry was demanded does not hold much weight and ought to have been rejected.
18. Now on consideration of entire evidence, there is no doubt that the deceased died unnatural death within one. year of her marriage with Prafulla Mandal. There is strong evidence that Saraswati was used to be tortured for not paying that balance amount of dowry. Most striking circumstance is that no explanation has been offered by the defence regarding the death of Saraswati. No information was sent to the informant’s family also. The evidence against appellants is of strong nature and there is no reason to doubt the testimony of the witnesses on the point. But in my opinion Dinbandhu and Bharat Mandal, brothers of Prafulla cannot be held liable under Section 304-B, I.P.C. There is clear evidence that the two appellants demanded dowry. According to the available evidence, full dowry was not paid to them before or after marriage and they were demanding balance amount. Their conviction under the Dowry Prohibition Act is amply justified but their conviction under Section 304-B I.P.C. is not proved. Prafulla Mandal the husband of the deceased was liable for the death of his wife. His conviction under Sections 304-B and 498-A I.P.C. and Sections 3 & 4, Dowry Prohibition Act stands proved.
19. In the result, conviction of appellants namely Din Bandhu Mandal and Bharat Mandal in Criminal Appeal No. 50 of 1998 under Section 304-B I.P.C. is set aside. Their conviction under Sections 3 and 4, Dowry Prohibition Act is confirmed. So for the question of sentence is concerned, their sentence is reduced to the period already undergone by them. Criminal Appeal No. 112 of 1998 is dismissed and conviction of appellant Prafulla Mandal is affirmed, but sentence is reduced to 5 years’ imprisonment under Section 304, I.P.C. but no separate sentence is passed under Section 3 and 4 Dowry Prohibition Act.