M.L. Visa, J.
1. This appeal is directed against the judgment and order dated 30.9.93 and 1.10.93, respectively, passed by 1st Additional Sessions Judge, Godda, in Sessions Case No. 165 of 1992/7 of 1992 convicting both the appellants under Sections 302/34 and 304B of the Indian Penal Code (in short, IPC) and sentencing them to imprisonment for life under Sections 302/34 IPC. No separate sentence has been passed under Sections 304B/34 IPC.
2. The case of prosecution, in short, is that on 20.6.92 at about 7 AM one Garbhu Raut (not examined) told the informant Arjun Manjhi (P.W. 5) that the members of her Sasural after killing his Bhagini (niece) Phutani Devi had thrown her dead body into a well. The informant then went to Village Devbandha where ‘sasural’ of Phutani Devi is situate and found the dead body of Phutani Devi in a well. Phutani Devi was married to appellant Subodh Kotwal about four years prior to 20.6.92 and her ‘Gauna’ had taken place about 7 months prior to it. On 17.6.92, when the informant had gone to Village Devbandha to meet her ‘Bhagini’ at that time she had told him that her husband Subodh Kotwal, her father-in-law Digambar Kotwal and her mother-in-law Sarjug Devi (since dead) were demanding a sun of Rs. 10,000/- from her and were asking her to bring the money from her parents and on this account they were abusing her and quarrelling with her and were giving threatening that she would be killed. The informant then after pacifying Phutani Devi returned to his home and thereafter on 20.7.92, he received information of the murder of Phutani Devi from Garbhu Raut. On the same day at about 11.30 a.m. fardbeyan (Ext. 2) of informant, we as recorded by police in the Village Devbandha and a case under Sections 302/201/34, IPC was registered against both the appellants and Sarjug Devi, mother-in-law of Phutani Devi. The police after investigation submitted charge-sheet under Sections 304B/201/34, IPC against both the appellants and Sarjug Devi. After taking cognizance the case was committed to the Court of Sessions. Co-accused Sarjug Devi died while she was in jail custody. Charges under Sections 302/34 and 304B/34, IPC were framed against both the appellants who pleaded not guilty and they were put on trial. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses is that the deceased had gone to a well for bringing water and accidentally she slipped into the well and died.
3. In order to prove its case, the prosecution has examined 5 witnesses. Arjun Manjhi (P.W. 5) is the informant. Pradeep Kumar Sinha (P.W. 4) is the doctor who conducted autopsy on the dead body of deceased. Amik Yadav (P.W. 1) is the father of deceased and brother-in-law of informant who on receipt of information of death of his daughter had gone to Village Devbandha. Kirani Devi is the elder sister of deceased. Godabari Devi (P.W. 3) is the mother of deceased.
4. Dr. Pradeep Kumar Sinha (P.W. 4), in his evidence, has stated that on 21.6.92 he was posted as Medical Officer at Sadar Hospital, Godda and on that day at about 7 a.m. he held post-mortem examination on the dead body of Phutani Devi and found the following ante-mortem injuries on her body:
(i) Swelling of the right hand and forearm.
(ii) Bleeding with little froth in both the nostrils.
(iii) Blood in the left ear with swelling 1/2″ × 1/2″ over the pinna externally.
According to him, the cause of death was asphyxia as a result of drowning and the probable time since death was one to four days. He has proved the postmortem examination report which is marked as Ext. 1.
5. Arjun Manjhi (P.W. 5), the informant, in his evidence, has stated that his niece Phutani Devi was married to appellant Subodh Kotwal about four years prior 4.5.93, the date when he was examined and about seven months prior to occurrence her ‘gauna’ was performed and she thereafter went to her ‘sasural’ for the first time and three days prior to occurrence he had gone to Devbandha to meet Phutani Devi where she told him to save her life and give a sum of Rs. 10,000/- to the members of her ‘sasural’ as dowry even at the cost of selling the landed-property. He tried to explain the matter to the in-laws of Phutani Devi but both the appellants and mother-in-law of Phutani Devi were adamant of their demand of a sum of Rs. 10,000/- as dowry and threatened that otherwise they after killing Phutani Devi would throw her dead body and he then returned to his house and thereafter, went to the house of his sister at village Pasai where he narrated the aforesaid fact to his sister Godabari Devi (P.W. 3) and his brother-in-law Amik Yadav (P.W. 1) who both expressed their inability in fulfilling the demand of appellants on the ground of their poverty and he then came back to his home. He has further stated that thereafter Garbhu Raut on a Saturday at about 4 a.m. came to his house and informed him that both the appellants along with Sarjug Devi after killing Phutani Devi had thrown her dead body into a well and he then went to village Devbandha where in his presence the police took out a dead body from a well and he identified the dead body which was of his ‘bhagini’ Phutani Devi. His fardbeyan (Ext. 2) was recorded by the police there. In his cross-examination, he has admitted that his own Sasural’ is also in Village Devbandha and his elder sister Asho Devi has been married in that village but when he had gone to the ‘Sasural’ of Phutani neither any one from his ‘Sasural’ nor from the ‘Sasural’ of his sister came there and he also did not go either to his ‘Sasurar or to the ‘Sasural’ of his sister. Although in para-3 of his evidence, he has stated that three days prior to the occurrence, he had gone to village Devbandha on the call of his ‘Bhagini’ which was conveyed to him by his sister Godabari by coming to his house and for the first time in his life he had gone to village Devbandha on that day, but in para-11 of his evidence, he has stated that about 18 years prior he was married in village Devbandha and after his marriage for about ten times, he had visited his Sasural in that village. To a question that during the stay of Phutani in her Sasural for how many times he went to village Devbandha, he replied that not even once but it appears that perhaps by giving this reply he means his earlier visit to the Sasural of Phutani. Amik Yadav (P.W. 1) is the father of Phutani Devi and he has stated that Phutani was married to appellant Subodh Kotwal and on a Saturday in his absence appellant Digambar Kotwal had come to his house and told his wife that Phutani had fled away and when his wife told him that Phutani cannot flee away and it appeared that he might have killed her, he fled away and when he returned to his house his wife told him the aforesaid fact and on that day at about 10 a.m. he received information that dead body of Phutani had been found in a well and he along with his wife went to Devbandha where he found police under a ‘Peepal’ tree and he then told the police that appellants had killed her daughter and fardbeyan of his ‘sala’ Arjun Manjhi was recorded by police. He has further said that in the month of ‘Baishakh’ he had gone to the Sasural of Phutani for bringing her and at that time the appellant Subodh Kotwal had demanded a sum of Rs. 10,000/- from him and when he expressed his inability appellant Subodh Kotwal told him to sell his ‘barf and give him money and when he again did not agree to this proposal appellant Subodh Kotwal abused Phutani and assaulted her and did not permit her to come with him. Appellant Digambar Kotwal and his wife Sarjug Devi also abused and he then went to the Sasural of his elder daughter. He has admitted that he did not see the dead body of his daughter but it was seen by his wife. He has further said that five years before the death of Phutani she was married to appellant Subodh Kotwal. In his cross-examination, he has said that after marriage Phutani had come to his house only on one occasion and at that time also he had gone for bringing Phutani from her Sasural to his house. In para 8 of his cross-examination, he has said that immediately after marriage Phutani came from her ‘Sasural’ and lived for four years in his house and thereafter, she went to her Sasural and from that period to her death only once he had gone to bring her daughter from her ‘Sasural’. He has said that his wife used to go to ‘Sasural’ of Phutani and she used to tell him that the members of the family of her in-laws of Phutani were not providing food and clothes to Phutani. He has denied the.suggestion of defence that Phutani was being kept well in her Sasural and was living in her Sasural continuously after her marriage and it is not a fact that she lived for four years in his house after her marriage. He has also denied the suggestion of defence that Phutani fell into a well accidentally when she went to fetch water from the well because, according to him, the height of the well is as such that he himself is unable to climb to that height and it was not possible for Phutani who was a female of climb up to the height of the well.
6. Godabari Devi (P.W. 3) is the mother of deceased Phutani Devi. Supporting the case of the prosecution she has also stated that about 4 years ago Phutani was married to appellant Subodh Kotwal and about 7 months before her death her ‘gauna’ was performed but her husband and other members of her Sasural used to assault her and they were not providing her required food and three days prior to occurrence his brother Arjun Manjhi (P.W. 5) had gone to the Sasural of Phutani. She has further stated that on a Saturday appellant Digambar Kotwal came to her house and inquired whether Phutani had come to her house or not. When she replied that Phutani was not a woman of such type to flee away from her Sasural and it appeared that he might have killed her on which the appellant Digambar Kotwal fled away. She wanted to catch him but could not and thereafter one Jyotish Tiwary informed her that he had been tofd by police that dead body of Phutani had been found in a well. After some time, when her husband came she told him the aforesaid fact and leaving him in the house she ran to Village Devbandha where she found a crowd near a big well and police was present there and by that time a dead body from the well had already been taken out which she identified to be of his daughter Phutani. She has further stated that before death of Phutani her husband had gone to the house of appellants for ‘vidaee’ of Phutani but at that time both the appellants and co-accused Sarjug Devi made a demand of a sum of Rs. 10,000/- and on refusal of her husband they drove her out from their house and threatened that they would kill Phutani and three days prior to herdeath, her brother Arjun Manjhi (P.W. 5) had gone to the house of appellants and on return he told her to arrange a sum of Rs. 10,000/- and pay the same to the in-laws of Phutani otherwise Phutani would be killed. In her cross-examination she has said that she never went to the Sasural of Phutani. After her marriage it was her husband who frequently used to go the Sasural of Phutani.
7. Kirani Devi (P.W. 2) is the elder sister of Phutani. She has also said that once she along with her father had gone to the Sasural of Phutani for her ‘Vidaee’ and in her presence the appellants and Sarjug Devi demanded a sum of Rs. 10,000/- from her father and when her father expressed inability to fulfil their demand they gave threatening that in case of their demand not being fulfilled they would kill Phutani and thereafter, they quarrelling with her father drove him out from their house. The Court below has not accepted the evidence of Kirani Devi on the ground that her father in his evidence has stated that this witness had not gone with him when he had gone to Sasural of Phutani for her ‘Vidaee’ and her father has clearly stated that he had alone gone there.
8. In this case, the fact that Phutani was married to appellant Subodh Kotwal about 5 years before her death is not in dispute. Dead body of Phutani was found in a well from where it was recovered is also not challenged by the defence because it is the own case of defence that Phutani had gone to fetch water from a well and she accidentally fell into the well and died. Medical evidence by Dr. Pradeep Kumar Sinha (P.W. 4) who held autopsy on the dead body of Phutani also establishes that death of Phutani was due to asphyxia as a result of drawing. It is true that Amik Yadav (P.W. 1), Godabari Devi (P.W. 3) and Arjun Manjhi (P.W. 5) are father, mother and ‘Mama’, respectively of Phutani and are closely related to the deceased but then I find that the Court below has rightly observed that they are most competent and natural witnesses and independent witnesses having nothing to do with the parties are hardly likely to come to Court as witnesses and buy enmity in the changed circumstances of the society. It is true that the defence has drawn the attention of P.W. 3 Godabari Devi that in her earlier statement she had not stated that when her husband had gone for ‘Vidaee’ of her daughter both the appellants and Sarjug Devi made a demand of a sum of Rs. 10,000/- and on refusal by her husband they drove him out from the house and had threatened that they would kill Phutani and get Subodh Kotwal married elsewhere and she had not stated earlier that three days prior to occurrence her brother Arjunb Manjhi (P.W. 5) had gone to the house of appellant and after return from there had asked her to arrange a sum of Rs. 10,000/- and pay the appellants otherwise they would kill Phutani. Similarly the defence has drawn the attention of informant Arjun Manjhi (P.W. 5) that in his earlier statement he had not stated that when he went to the Sasural of Phutani he was told by Phutani to save her life and pay a sum of Rs. 10,000/- to the members of her Sasural even after selling land and he had not stated in his earlier statement that appellants and co-accused Sarjug Devi had given threatening that in case of non payment of a sum of Rs. 10,000/- they would kill Phutani and he had also not stated that after his return from there he told this fact to the parents of Phutani that in case they would not pay a sum of Rs. 10,000/- to appellants they would kill Phutani. The prosecution has not examined the I.O. and it has been argued on behalf of the appellants that non examination of I.O. has prejudiced the case of appellants because they did not get any chance to corroborate the contradictions in the earlier statement and evidence of these two witnesses. So far as the case of Amik Yadav (P.W. 1), father of Phutani is concerned, no such suggestion has been given to him. It is true that there is contradiction in his evidence and evidence of his wife Godabari Devi (P.W. 3) on the point of visits to the Sasural of Phutani Devi either by him or by his wife because he has said that his wife frequently used to visit the Sasural of Phutani whereas Godabari Devi has said that she never visited the Sasural of Phutani and it was her husband who used to visit there but then there is no contradiction in the evidence of these two witnesses on the point of visit of Amik Yadav (P.W. 1) to the Sasural of Phutani about 10-15 days prior to occurrence when he had gone there for ‘Vidaee’ of Phutani. Amik Yadav (P.W. 1) in his evidence has clearly stated that when he went for ‘Vidaee’ of her daughter appellant Subodh Kotwal had made a demand of Rs. 10,000/- from him and when he expressed his inability posing question that from where he would arrange the money appellant Subodh Kotwal advised him to sell his ‘barf and when he refused appellant Subodh Kotwal abused and assaulted Phutani and did not agree for her ‘Vidaee’,
9. The case of defence as is made out by the trend of cross-examination of prosecution witnesses and as stated by appellant Digambar Kotwal in his examination under Section 313, Cr. P.C. that Phutani had gone to fetch water from a well where she accidentally slipped does not appear to be convincing because admittedly, the dead body of Phutani was recovered from a well by police on 20.6.92 and the evidence of prosecution witnesses is that appellant Digambar Kotwal had gone to the house of parents of Phutani to enquire whether Phutani had come there or not. If the appellants knew that Phutani had gone to fetch water from a well and when she did not return to house they instead of searching Phutani in the house of her parents situate in another village would have naturally first tried to locate her near the well but admittedly, they did not do so. The death of Phutani admittedly took under the circumstances which were not normal and the death took within a period of 7 years from her marriage with appellant Subodh Kotwal. The evidence of Amik Yadav, father of Phutani is clear that when he had gone for ‘Vidaee’of Phutani appellant Subodh Kotwal had demanded a sum of Rs. 10,000/- from him and on his refusal he abused and assaulted Phutani in his presence. Although he has said that appellant Digambar Kotwal and his wife Sarjug Devi also abused but he has not made clear whether they abused him or Phutani but so far as appellant Subodh Kotwal is concerned, his evidence is clear that he had made a demand of a sum of Rs. 10,000/- and on refusal he abused and assaulted Phutani. So, the allegation of demand of dowry and on its non fulfillment torture on Phutani is well proved against appellant Subodh Kotwal, who is the husband of Phutani. Since in the evidence Amik Yadav (P.W. 1), father of Phutani, no specific allegation has been made against appellant Digambar Kotwal, I find that his conviction and sentence cannot be upheld and he is entitle to benefit of doubt. But so far as appellant Subodh Kotwal is concerned, the prosecution has proved a case of dowry death against him beyond all reasonable abouts. He has been convicted under Section 302 as well as under Section 304B, I.P.C. but has been sentenced to undergo life imprisonment under Section 302, I.P.C. and no separate under Section 304B, I.P.C. has been passed. As the prosecution has proved its case under Section 304B, I.P.C. against appellant Subodh Kotwal his conviction is altered from Section 302, I.P.C. to 304B, I.P.C. and his sentence of life imprisonment is reduced to a sentence of R.I. for 10 years under Section 304B, I.P.C.
10. In the result, this appeal is allowed in part. Appellant Digambar Kotwal is acquitted and as he is on bail, he is discharged from the liability of his bail bonds. So far as appellant Subodh Kotwal is concerned, he is convicted and sentenced to undergo R.I. for ten years under Section 304B, IPC. Appeal allowed.