JUDGMENT
Rajendra Prasad, J.
1. This criminal appeal is directed against judgment and order of conviction dated 10.10.2002 passed by Shri Mungeshwar Sahoo, 1st Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 323 of 1997 arising out of Tarari P.S. Case No. 41/96, whereby and whereunder each of three accused appellants out of five tried together were held guilty for offences under Sections 304-B and 201 of the Indian Penal Code and, accordingly, convicted and sentenced to undergo rigorous imprisonment for ten years under Section 304-B, I.P.C. and rigorous imprisonment for two years under Section 201, I.P.C. and the sentences were ordered to run concurrently.
2. The prosecution story, as disclosed by informant Vishwanath Singh (P W. 5), in his Fardbeyan (Ext.-3) recorded by SI Ram Yash Prasad of Tarari Police Station on 10.7.1996 in short, is as follows : grand daughter (Natni) Sarita Devi (deceased), daughter of Chhote Lal Singh (P.W. 2), of informant (P.W. 5) was married with appellant No. 1 Raj Kumar Singh on 24.5.1995. The second marriage (Gauna) of Sarita Devi was performed on 25.2.1996 and thereafter Sarita Devi had been living in her Sasural. As per informant, 20-25 days before when his grandson (Nati) Kashlendra Singh (P.W. 3) had gone to village Kupdeehra to meet his sister (Sarita Devi) and came back had informed his grand-father (Dada) that Jijaji (appellant No. 1) and his family members had asked him to send a Jarsi cow within four days otherwise they would finish his sister. The grand-father of P.W. 3 had no faith in statement of P.W. 3 and so never went to village Kup Deehra. On 5.7.1996 one Shankar Singh came and informed that daughter of Chhotelal Singh had been murdered and cremated by her in-laws. When the informant came to know the fact on 6.7.1996 he went to village Kupdeehra and when searched his grand daughter (Natni) he was informed by samdhi that wife of Raj Kumar (appellant No. 1) died of Kai Dast (diarrhoea) and so she was cremated. When the informant enquired from villagers they told that Raj Kumar Singh (appellant No. 1), Binod Singh (appellant No. 2), Bihari Singh (appellant No. 3), Sushila Devi, Malti Devi and wife of Binod Singh had killed Sarita Devi as demand of Jarsi cow towards dowry was not fulfilled. The informant further stated that as his son-in-law Chhotelal Singh was at Delhi he was informed and as father of Chhotelal Sri Sheoparsan Singh was unable to move informant himself came to police station and got his Fardbeyan recorded. Informant claimed that the accused persons committed murder of his Natni for dowry.
3. On the basis of Fardbeyan of informant (Ext. 3) Tarari P.S. Case No. 41/ 96 was registered, police took up investigation and after completion of investigation charge-sheet against the accused persons was submitted. It appears that besides the appellants other accused Malti Devi and Manti Devi were also tried but learned Trial Court finding not them guilty for the charges levelled against them acquitted them and convicted and sentenced each of the appellants as indicated in paragraph 1 of this judgment.
4. As it appears from trend of cross-examination, the statements of accused-appellants recorded under Section 313, Cr. P.C. the defence is plea of innocence and false implication. The specific defence set up by defence is that the deceased died of diarrhoea and the accused-appellants have falsely been implicated in this case.
5. The only point for consideration would be whether the prosecution has been able to prove and establish the charges levelled against the appellants beyond shadow of reasonable doubts and in the manner as alleged.
6. Submission and contention of learned Counsel for the appellants is that prosecution has miserably failed to establish the charges levelled against the appellants. Referring fact and evidence on record learned Counsel further submits and contends that the prosecution could not be able to bring such evidence on record so as to prove and establish that soon before death of deceased Sarita Devi she was subjected to cruelty and harassment by any of the appellants for or in connection with any demand of dowry and so charge under Section 304-B, I.P.C. cannot be said to have been proved. Further contention of learned Counsel for the appellants is that learned Trial Court failed to appreciate the evidences and so came to a wrong conclusion. The judgment is based on conjectures and surmises.
7. As against this, learned APP submitted and contended that prosecution has been able to prove and establish charges levelled against the appellants beyond shadow of reasonable doubts and so there is nothing in the judgment and order of learned lower Court so as to be interfered with.
8. In order to prove and establish its case prosecution examined as many as six witness who are Ram Pravesh Singh (P.W. 1), Chhotelal Singh, father of deceased (P.W. 2), Kashlendra, brother of deceased (P.W. 3), Babban Singh (P.W. 4), Vishwanath Singh, the informant (P.W. 5), and Tarkeshar Prasad (P.W. 6), who is a formal witness.
9. The prosecution also brought on record and proved the signature on Fardbeyan (Ext. 1 series), letter written by appellant No. 2 (Binod Singh) to Chhotelal Singh, father of the deceased, who has been examined as P.W. 2, marked Ext. 2, the Fardbeyan (Ext. 3) and formal FIR (Ext. 4).
10. As against this, defence also examined three witnesses, who are Shankar Singh (D.W. 1), Ramnath Singh (D.W. 2) and Sunil Kumar Singh (D.W. 3).
11. Out of six witnesses examined by prosecution P.W. 2 (Chhotelal Singh), P.W. 3 (Kashlendra) and P.W. 5 (Vishwanath Singh), the informant are father, full brother and Nana of the deceased respectively and so scrutiny and appreciation of statements of these witnesses shall require great care and caution.
12. On a plain reading of statements of all the six prosecution witnesses examined by prosecution it would appear that out of six prosecution witnesses P.W. 2, P.W. 3, and P.W. 5 are relations of deceased and also related among themselves. Out of remaining three witnesses P.W. 1 (Ram Pravesh Singh) is the resident of village of Sasural of the deceased who does not appear to have supported the prosecution case inasmuch as this witness though supported the fact that deceased was married to appellant No. 1, this witness states that on the alleged date and time of occurrence he was not in the village and further specifically stated that there had been no Jhanjhat relating to dowry. This witness has also stated that he had no knowledge that there was any demand of Jersi cow by in-laws.
13. P.W. 4 (Baban Singh) appears to be the Choukidar of village of Sasural of the deceased. It appears from the statement of this witness that except general and omnibus allegation that in-laws of deceased used to quarrel with deceased for not giving Jersi cow towards dowry and because of non-fulfilling demand of dowry the appellants and other in-laws poisoned deceased to death there is nothing in his statement.
14. P.W. 6 (Tarkeshwar Prasad) is a formal witness and there is nothing in his statement so as to help prosecution.
15. From the discussions of statements of P.W. 1 (Ram Parvesh Singh), P.W. 4 (Babban Singh) and P.W. 6 (Tarkeshwar Prasad) it would appear that statements of these witnesses are quite vague, inconsistent and unworthy of credence and so prosecution is left with statements of P.W. 2, P.W. 3, and P.W. 5, who are, admittedly, relations of deceased and also related among themselves.
16. On a careful consideration, scrutiny and appreciation of statement of P.W. 2, father of deceased Sarita Devi, it is evidently clear that on the alleged date and time of occurrence this witness was at Delhi and so his statement is reduced to be that of hearsay statement, it further appears that though this witness supported that deceased was married to appellant No. 1 this witness states nothing as to whether deceased was subjected to cruelty or harassment by her husband (appellant No. 1) or any relative of her husband for, or in connection with any demand for dowry, so much so in his cross-examination this witness has stated that he had not given any dowry and there had been no Jhanjhat in marriage. Similarly, it appears from statement of P. W. 3, Kashlendra, who is none but full brother of deceased, that there is nothing in his statement so as to indicate that deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry. The statement of this witness that when he had gone to meet her sister (deceased) appellant No. 1 and other in-laws asked him to inform his grand-father to give Jersi cow and had also threatened to kill his sister cannot be believed inasmuch as this witness is an interested witness. Similarly, P.W. 5 (Vishwanath Singh), who is Nana of deceased and also an interested witness does not appear to have stated that deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with demand for dowry. Statement of this witness on the point of demand of dowry is only hearsay inasmuch as this witness himself stated that it was P.W. 3, who had informed him that in-laws of deceased had demanded Jersi cow and had also threatened to finish his sister in case such demand is not fulfilled. Besides defence has also examined as many as three witnesses who are Shankar Singh (D. W. 1), Ramnath Singh (D. W. 2) and Sunil Kumar Singh (D. W. 3). It appears from the statements of D.W. 1, D. W. 2 and D.W. 3 that all these witnesses are of Sasural of deceased and all of them specifically stated that deceased died of diarrhoea and deceased was neither subjected to cruelty nor any dowry was demanded. It has also come that the informant was informed by one Shankar Singh of village of sasural of deceased that appellants and other in-laws had killed deceased but that Shankar Singh appeared as defence witness and denied that there was any demand of dowry and that deceased was subjected to cruelty.
17. Learned Counsel for the appellants in course of argument referring Ext. 2, which is a letter written by appellant No. 2 to father of deceased submitted and contended that this letter may be treated as extra-judicial confession of appellant Binod Singh inasmuch as appellant No. 2 admitted his guilt in Ext. 2. On a plain reading of Ext. 2 it appears that through this letter appellant No. 2 had made a request to father of deceased to forget and forgive if any wrong had been done by appellant No. 2. Learned defence Counsel submitted and contended that such type of letter cannot be treated as extra-judicial confession inasmuch as there is nothing in the letter so as to indicate that appellant No. 2 had admitted and confessed that deceased was subjected to cruelty or harassment for dowry and so deceased died unnatural death. Learned defence Counsel further submitted and contended that as the prosecution has failed to prove and establish that soon before death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, the prosecution cannot rely upon Ext. 2 written by appellant No. 2. Such letter was merely a request to father of deceased. It was further contended that this letter may also be interpreted as a letter of request to father of deceased not to proceed with this false case.
18. On a careful scrutiny, consideration and appreciation of statements of all six witnesses examined by prosecution it is evident that their statements, even if taken as it is, do not prove and establish the fact that Sarita Devi (deceased) was subjected to cruelty or harassment by her husband (appellant No. 1) or any relative of her husband (appellant Nos. 2 and 3) for, or in connection with any demand for dowry and so charge under Sections 304-B and 201, I.P.C. cannot be said to have been proved.
19. On a plain reading of Section 304-B, I.P.C. it would appear that for proving charge under Section 304-B, I.P.C. the prosecution shall have to prove and establish that soon before her death the wife was subjected to cruelty by her husband or any relative of her husband for, or in connection with demand for dowry and so in absence of proving that fact no conviction under Section 304-B, I.P.C. and further under Section 201, I.P.C. can be sustained.
20. Taking into consideration the facts and circumstances of this case in which offence is said to have been committed in its entirety and nature and quality of evidences brought on record by prosecution to prove and establish charge under Sections 304-B and 201, I.P.C. against appellants. I have come to the conclusion that prosecution has been failed to prove and establish charge under Section 304-B I.P.C. and also under Section 201, I.P.C. levelled against appellants and so judgment and order of conviction passed by the learned Trial Court cannot be sustained.
21. In the result, the appeal is allowed and judgment and order of conviction dated 10.10.2002 passed in Sessions Trial No. 323 of 1997 by 1st Additional Sessions Judge, Bhojpur at Ara, is hereby set aside. Appellant Nos. 2 and 3 (Binod Singh and Bihari Singh), who are on bail, are discharged from the liabilities of their bail bonds and appellant No. 1 (Raj Kumar Singh) who appears to be in custody is directed to be released from jail custody forthwith if not required in any other case.