JUDGMENT
D.P. Singh, J.
1. Both the appellants have preferred this appeal against the judgment of conviction dated 31.7.2002 and sentence dated 1.8.2002 passed in Sessions Trial No. 291 of 1995 by Additional Sessions Judge, Daltonganj whereby and whereunder both the appellants stand convicted under Section 304B/201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and three years each respectively and both the sentences to run concurrently.
2. Brief facts leading to this appeal are that the appellant No. 1 Was married with one Surti Devi in the year 1990. It is further asserted that one month before this incident and appellant No. 1 came to his in-laws and asked them to send the girl with him otherwise he would remarry with another girl. The appellant No. 1 was suggested by his in-laws that they will send the girl after consulting his father. However the appellants again came on 13.3.1994 and took away the victim on 14.3.1994. According to prosecution case, P.W. 1 Bhim Mahto brother of the deceased went to village Kolhura on 16,4.1994 to know about the welfare of the girl when he was asked by the appellants to bring Rs. 15,000 cash and one motorcycle before his sister would be sent with him.
3. Further stated on 21.4.1994 P.W. 4 Lallu Mahto informed them that Surti Devi has died and her last rites have been performed by the appellants. The informant hearing this rushed to the village Kolhura to find the appellants absconding. The villagers informed him that Surti Devi has died and her last rites have been performed. Thereafter he lodged a written report to Hariharganj police on 24.4.1994 against both the appellants on the basis of which Hariharganj P.S. case No. 27 of 1994 have been registered under Section 304B of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The police started investigation and finally submitted charge-sheet against these appellants under Section 304B/201 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The trial of the appellants was committed to the Court of sessions where they were charged on 2.9.1997 for the aforesaid offences to which they pleaded not guilty. However the learned trial Court found and held them guilty for both the offences and sentenced them to serve R.I. for seven years and three years respectively under Section 304B/201 of the Indian Penal Code.
4. The present appeal has been preferred mainly on the grounds that the learned trial Court has not considered the contradictions in the evidence of prosecution witnesses. It has further been asserted that the story of dowry demands and torture for non-fulfillment of the same has not been proved by the prosecution. It was pointed out that the deceased died due to diarrhea, which has been brought on record by D.Ws. 1 to 3. Therefore the presumption that she died for non-fulfillment of dowry demands is misplaced and misconceived. The non-examination of the I.O. has also been highlighted. Accordingly, the learned Counsel for the appellants Mr. T.R. Bajaj submitted that the appellants deserve to be acquitted of the charges.
5. I have gone through the materials on record and the impugned order minutely. The prosecution has examined altogether five witnesses in this case out of which P.W. 1 is Bhim Mahto brother of the deceased, P.W. 2 Lakhpati Mahto is informant, P.W. 3 Krishna Gopal Mahto is related with the informant, P.W. 4 is another relation, P.W. 5 is formal witness who has proved the FIR in the writing of Jakariya Khan vide Ext. 2. As against this, three witnesses were examined by the defence of village Kolhura who asserted that the wife of appellant No, 1 died due to diarrhea and when the informant side did not reach the village, her dead body was burnt in presence of villagers.
6. P.W. 2, the informant has supported his written fardbeyan in his examination-in-chief. During cross-examination he admitted that the deceased was his niece, daughter of Shivandan Mahto who was alive. He further admitted that said Shivandan Mahto has got two sons and two daughters out of which only one as P.W. 1 has been examined. He admitted that he could not met Ramanand Mahto who has informed regarding death of Surti Devi. P.W. 3 Krishna Gopal Mahto, P.W. 4 Lal Mahto have supported the informant in this context that one month prior of the occurrence there was a demand from appellants of one motorcycle and Rs. 15,000/- cash. He admitted vide para 2 in cross-examination that he could learn this fact from P.W. 1. According to him the victim has remained in her sasural for four days, one month and sixteen days only prior to her death. Similarly P.W. 4 admitted that he has not stated before police that the girl was sent without second marriage. He also admits vide para 7 that the relation of the appellants and the deceased was not good.
7. P.W. 1 has asserted in his examination-in-chief that he was informed by his mother and uncle that Surti Devi was killed. According to him, his sister died because of non-fulfillment of dowry demands. During cross-examination this witness has admitted that the victim has remained in her sasural only for a month. He further admitted that appellant No. 1 used to quarrel with the victim for non-fulfillment of his demands. He also admitted that the FIR was lodged after six days and he has visited her on 15.4.1994. He admitted that he has not seen any assault in his presence. From the evidence of these witnesses it is apparent that the parents of the deceased were alive and the appellant took away the girl as per prosecution case only a month prior to this occurrence. It has further come on record that prior to March 1994 the deceased used to live with her parents. There is no allegation that prior to 13.3.1994 any demand was made for payment of Rs. 15,000/- and motorcycle except that when appellant No. 1 came to his sasural he asked for vidai of the victim or he would marry again. The facts thus remain that the victim was married in the year 1990 and for nearly four years he has not visited her sasural. It has also come on record that, when he for the first time came and asked for vidai there was no demand. However when on 14.3.1994 second marriage was performed, P.W. 1 went to ascertain welfare of the deceased after a month and there he was demanded Rs. 15,000/- and the motorcycle. As such, the demand of dowry Rs. 15,000/- and motorcycle by way of dowry surfaced for the first time on 16.4.1994. It is asserted that Surti Devi died on 19.4.1994 and the matter came to the knowledge of P.W. 2 on 21.4.1994. However this FIR was lodged on 24.4.1994. In this background the defence witnesses have asserted specifically that Surti Devi died due to diarrhea and when the informant side did not reach, her dead body was cremated in their presence. The prosecution has not been able to bring on record any positive evidence for dowry demands, which were made for the first time on 16.4.1994. The girl might have been subjected to torture resulting in her death within three days. The trial Court has considered these aspects in the impugned judgment vide paras 5 and 6 and disclosed the reasons vide para 7 why death of Surti Devi was covered under Section 304B of the Indian Penal Code. However, being convinced that in absence of any death certificate of a doctor and non-availability of the information to her parents as well as absence of the appellants form their house when P.W. 2 visited village Koluhara, presumption was drawn against the appellants.
8. After going through the materials on record, I find that the circumstances and the facts on records do not make out any positive case that Surti Devi who went to her sasural in middle of March had been subjected to torture for non-fulfillment of dowry demands first time raised in presence of P.W. 1 on 16.4.1994. All other witnesses are here say on his point. The non-examiantion of I.O., in such circumstances, is also fatal. The defence witnesses have consistently stated that Surti Devi died because of diarrhea. Only non-production of death certificate have been taken as a circumstance against the appellants. In the facts discussed above, it is not justified and sustainable.
9. Having considered the above mentioned facts and circumstances, I find that the prosecution has not been able to prove beyond doubt the prosecution case that Surti Devi died for non-fulfillment of dowry demands. Accordingly, the conviction of the appellants is set aside.
10. In the result, this appeal is allowed. The appellants are on bail; they are directed to be released from the liabilities of their bail bonds.