JUDGMENT
Hari Shankar Prasad, J.
1. This criminal appeal is directed against the judgment dated 27th March, 1999 and order of sentence dated 31st March, 1999 passed in Sessions Trial No. 311/1996, whereby learned 5th Additional Sessions Judge, Hazaribag held the appellants guilty under Section 304B/34, IPC and sentenced them to undergo R.I. for 10 years.
2, The case of the prosecution in brief is that Mangal Mahto submitted a report before the officer-in-charge, Barkagaon Police Station stating therein that his daughter Sarita Kumari was married with one Suresh Mahto in the year 1993 in which sufficient dowry was given. After solemnisation of marriage his daughter remained six months in her matrimonial home and there was cordial relation between his daughter and son-in-law Suresh but subsequently there was a demand of rupees ten thousand from the daughter of the informant. The informant could not make the payment due to his poor condition which led to torture upon his daughter in various ways and she was even turned out from her matrimonial home. The informant made efforts for reconciliation but he failed and the appellant pressed for payment of rupees ten thousand. The informant took his daughter to her matrimonial home and expressed his inability to fulfil their demand and on 10.4.1996 at about 5.00 p.m. informant came to know that his daughter has died and on such information informant inferred that this daughter had been murdered by the appellants due to non-payment of dowry. On the basis of written report a case under Sections 304B/34, IPC was registered being Barkagaon P.S Case No. 31/1996 dated 10.4.1996. After submission of charge-sheet, cognizance was taken and case was committed to the Court of Sessions and after framing of charges against the appellants trial proceeded and in course of trial several witnesses were examined. Learned Court below, after considering the evidence both oral and documentary, held the appellants guilty under Sections 304B/34, IPC and sentenced them to undergo
R.I. for 10 years. Applants had pleaded not guilty to the charges. In course of trial 12 witnesses were examined and out of 12 witnesses PW 12 has been declared hostile. PW 3 is a tendered witness and PW 11 is formal witness.
3. The learned counsel appearing for the appellants assailed the judgment on the ground that there is no witness to substantiate the allegation of demand of dowry of rupees ten thousand by the husband of the deceased and in absence of any such reliable evidence, the conviction is bad. The judgment has further been assailed on the ground that Sarita Devi (deceased) was suffering from heart ailment and this has been admitted by PW 1 himself. The learned Court below failed to take into consideration the petition filed by the informant through his own advocate stating therein that his daughter died due to heart failure. The doctor has not found any cause of death either in the post-mortem report or in evidence before the Court that in absence of any such specific evidence, appellants cannot be convicted. The allegation of administering poison to the deceased Sarita Devi has not been established and no forensic report to that effect has been received, the learned Court below has not framed questions correctly under Section 313, Cr PC and on this score also the appellants are fit to be acquitted.
4. PW 1, who is Sahdeo Yadav, has come to say that Sarita Devi was suffering from heart ailment and she died of diarrhea and she died after three years of her marriage. He has further stated that her sasural people never tortured her for anything.
5. PW 2 has been declared hostile but he has stated in his evidence that Sarita Devi was suffering from heart disease and her relation in her matrimonial home was cordial. PW 3 is tendered witness.
6. PW 4 Is Nago Mahto. He has come to say that he was told that Sarita Devi was poisoned to death by her sasural people by mixing poison in rice, as a result of which after consumption she died. On this piece of information he went to the sasural of
Sarita Devi and saw the dead-body and further saw that froth was coming out from the mouth of the deceased.
7. PW 5, is Rubhan Mahto. He has come to say that Sarita Devi was married with Suresh Mahto four years prior to the alleged date of occurrence and the relation of sasural people with Sarita Devi was not cordial. Sasural people were demanding rupees ten thousand and on payment of rupees ten thousand as dowry she will be kept in sasural. He has further stated that as a result of non-fulfillment of demand of rupees ten thousand Sarita Devi was subjected to torture by sasural people. He had once gone to the sasural of Sarita Devi and persuaded the sasural people where he came to know that Sarita was administered poison by sasural people, as a result of which she died. He is a hearsay witness.
8. PW 6 is Kundan Mahto. He is also a hearsay witness and he has come to say that he learnt in the village that Sarita Devi has been murdered by her sasural people. He has further stated that Sarita Devi was murdered for non-payment of rupees ten thousand as dowry.
9. PW 7 is mother of the deceased Sarita Devi. She has stated that after marriage her daughter remained in sasural peacefully for six months and thereafter all the appellants, started demanding rupees ten thousand and on non-payment of rupees ten thousand her daughter was murdered in her sasural. She further stated that she has gone with several other persons for persuading her sasural people and met her daughter in her sasural and thereafter she learnt from Chunmum Mahto that her daughter is dead. She met several other persons and her husband in her sasural and saw Sarita Devi and on inquiry she learnt that Sarita Devi dead was poisoned to death by her sasural people. She had further stated that her daughter was poisoned to death and poison was mixed in the rice.
10. PW 8 is Mangal Mahto. He has come to say that he performed the marriage of his daughter with Suresh Mahto and had given articles and cash according to his capacity. He has further stated that after
marriage his daughter Sarita Kumari spent about six months peacefully In her sasural but thereafter there was a demand of Rs. 10,000/- as dowry but due to his condition he could not pay the money and his daughter was subjected to cruelty, torture and even assault and she was turned out from her sasural Then this witness went with his daughter and left her in her sasural. She was driven out from her sasural and then a panchayati was convened and after panchayati he left her daughter in her sasural. He got an information from one Suman Mahto about the death of his daughter and he along with his wife, Khudan Mahto, Nago Mahto, Niman Mahto, Chheki Mahto, Sunder Prajapati and others went and saw his daughter dead. He also saw the cooked rice thrown outside the house of the accused appellants in which poison was mixed and he came to know that poison was mixed in the rice and one she-goat and a dog had eaten the rice and were found dead there.
11. PW 9 is I.O of the case. In para 14 of his deposition he has stated that at the time when he saw the dead body he found a bottle of saline water hanging up and saline needle near the dead body. He further stated that he enquired as to who injected the saline water but he did not get any information. He further stated in para 19 that when he reached the place of occurrence he did not see the cooked rice and dead bodies of she goat and the dog.
12. PW 10 is the doctor, who conducted the post-mortem examination on the dead body of Sarita Kumari. The doctor in course of post-mortem examination on the dead body did not give opinion on the cause of death and reserved the opinion until chemical analysis report of viscera will be available.
13. PW 11 is a formal witness, who has proved some documents. PW 12 is a witness, who has completely supported the prosecution case. This witness has come to say that he knew about the torture to which Sarita was subjected for non-payment of Rs. 10,000/- as dowry. He further stated that he came to know that Sarita had died
and he went to her sasural and saw the dead body of Sarita and he also saw that from the mouth of Sarita forth was coming and there women were talking among themselves that poison was mixed in the Golhat (cooked rice) and was offered to Sarita, who consumed that Golhat and died. He has further stated that remaining Golhat was thrown, which was eaten by a she-goat and a dog and both of them died and he also saw the dead bodies of she-goat and the dog. He further stated that thereafter, appellant Budhi Nath Mahto threw the dead bodies of she-goat and the dog towards the northern side. He further stated that he immediately sent information to Mangal Mahto (PW 8) and Mangal Mahto came to the place of occurrence.
14. On the basis of evidence led on behalf of prosecution, the prosecution has tried to make out a case that appellants committed murder of Sarita Devi by administering poison and in this connection PW 4, Nago Mahto stated that he saw the dead-body and saw that froth was coming out from the mouth of deceased. Another witness PW 12 has also stated that he saw that froth was coming out from the mouth of the deceased. Some witnesses have also stated that they saw a she-goat and a dog lying dead outside the house by eating the Golhat rice in which poison was mixed and which was given to Sarita Devi for the consumption and the remaining Golhat rice was thrown out which she-goat and dog ate and died. But from perusal of the inquest report if appears that although I.O. has written that cause of death is due to administering poison but it is nowhere mentioned that froth was coming out from the mouth of the deceased. It also appears from the inquest report that saline water was found near the dead-body of Sarita Devi and in this connection PW 1, who has not been declared hostile by the prosecution, has supported that Sarita Devi was suffering from heart ailment and she died of Diarrhea. PW 2, who has been declared hostile also stated that Sarita Devi was suffering from heart ailment and similarly DW 1 has also stated that Sarita Devi died of
heart failure. On the other hand, Doctor, who conducted the autopsy on the dead body of Sarita did not come to any finding about the cause of death and sent the viscera and several portions of the dead-body for chemical analysis and report of Chemical Analysis has been received, from perusal of which it appears that no poison was detected in viscera on chemical analysis of viscera. It was also pointed out by the learned counsel for the appellants that there is no eye- witness to the alleged occurrence of murder or administering poison through Golhat rice. It was also pointed out that I.O. did not find froth coming out from the mouth of the deceased and even doctor, PW 10 did not come to a conclusion whether any poison was administered to the deceased or not and wanted for his final opinion till the receipt of the report of chemical analysis and the report of the chemical analysis is that no poison was found In the viscera. Learned counsel for the appellants placed reliance on a judgment reported in 1997 (2) East Cr C 891 (Pat), in which it has been held that when dowry murder by poison alleged and there is no eye-witness of occurrence and witnesses stated that they learnt that death was caused by administering poison and medical opinion was not definite about the death by poisoning and viscera report was not received, no offence is made out. It was further pointed out that in the instant case viscera report has been received and viscera report discloses that poison was not found in the viscera. Hence the instant case is on much better position than the facts of the case law cited supra.
15. In the Instant case what I find is that even PW 1, who is a prosecution witness, has come to say that Sarita Devi was suffering from heart ailment and she died of diarrhea and this witness has not been declared hostile. Hence, the prosecution accepted the evidence of this witness. Further PW 2, though has been declared hostile but he also stated that Sarita Devi was suffering from heart ailment besides there is no eye-witness to the alleged occurrence. Further medical evidence is silent on the cause
of death and viscera report does not disclose that poison was found in the viscera. Therefore, it is clear that Sarita Devi did not die of poisoning and in that view of the matter the very cause of her death is absent as alleged by the prosecution and in my opinion, the prosecution has not been able to prove the prosecution case beyond all reasonable doubts.
16. In that view of the matter this appeal is allowed and judgment dated 27th March, 1999 and order of sentence dated 31st March, 1999 passed in S.T. No. 311/ 96 is set aside and appellants are acquitted from all the charges levelled against them and they are also directed to be discharged from the liability of their bail bonds. From the order-sheet it appears that appellant No. 2, Suresh Mahto is in jail, he is directed to be released forthwith if not wanted in any other case.