JUDGMENT
Lakshman Uraon, J.
1. Both these criminal appeals arise out of the same sessions case No. 9 of 1995 arising out of Sarwan PS case No. 131 of 1994 (GR No. 7-36 of 1994). Hence, both these criminal appeals are being disposed of by the single order of this Court.
2. Appellant Suresh Verma in criminal appeal No. 512 of 1997 is the husband of the deceased Purni Devi, whereas appellants Puran Verma and Savtri Devi in criminal appeal No. 437 of 1997 are the father-in-law and mother-in-law of the said deceased. Appellants in both these appeals have preferred appeals against the judgment and order of conviction dated 9.9,1997 and sentence dated 10.9.1997 passed in sessions case No. 9 of 1995 by Shri Ghan Syam Prasad, learned. Sessions Judge, Deoghar whereby and whereunder, appellants in both these criminal appeals have been convicted under Sections 304B/210, IPC and sentenced to undergo imprisonment for life for the offence under Section 304B and further to undergo R-1 for three years each for the offence under Section 201, IPC; directing that both the sentences against each of the convict-appellants shall run concurrently.
3. PW 4 Prakash Verma, brother of the deceased Purni Devi, in his fard beyan recorded on 14.12.1994 at 2.00 pm on which he signed (Ext. 1) by S.I. Kameshwar Singh near the well of Chamru Mahto of village Sumbha, PS Sarwan in which he has alleged that his sister Purni Devi was married with Suresh Verma (appellant in criminal appeal. No. 512 of 1997, in the year 1993. In the year 1994 gauna took place and she went to her in-laws house. On 14.12.1994 at 7.30 am his brother-in-law Suresh Verma (appellant) went to his village and informed that Purni Devi is missing from village home Sumbha. Informant and his brother-in- law Suresh Verma (appellant) went in search of Purni Devi. His father along with other villagers also went in search of Purni Devi in different directions. Informant went to village Sumbha where he found appellant Puran Verma of criminal appeal No. 437 of 1997. When asked he informed that he had no-knowledge as to where Purni Devi had gone out of the house for which his son Suresh Verma had gone to inform the informant. The informant from nearby villagers came to know that his sister was done to death and her dead body has been concealed somewhere else. On suspicion, father of the deceased and the informant, namely, Munesher Verma (PW 3) along with PW 2 Nagdi Prasad Verma (another brother-in-law of the informant) in presence of appellant Suresh Verma, brother-in-law, and villagers with the help of Jhaggar traced the dead body of Purni Devi in the well. When the dead body was brought out of the well, appellant Suresh Verma fled away.
4. Informant has alleged that two months prior to the alleged occurrence, appellant Suresh Verma had gone to his home along with Rohit Verma, mediator, and had demanded Rs. 5000/-. On refusal, brother-in-law of the informant started harassing and torturing his sister threatening that the result will be worst. Four days prior to 14th December, 1994, all the appellants in both the criminal appeals and acquitted accused mediator Rohit were assured and asked not to torture Purni Devi for money. Informant suspected that all the named accused including these appellants due to non-fulfilment of dowry demand of Rs. 5000/-, murdered Purni Devi and threw her dead body into the well.
5. In course of trial, the prosecution examined five witnesses who are PW 1, Shanti Devi (mother of the deceased), PW2-Nagdi Prasad Verma (brother-in-law of the deceased), PW 3 Muneshwar Verma (father of the deceased), PW 4 Prakash Verma (brother of the deceased) and, PW 5, Dr. Ashok Kumar Chatterjee who conducted autopsy and issued post mortem report (Ext. 2) in his pen and signature.
6. The learned Sessions Judge, Deoghar relied the evidence of PWs. 1, 2, 3 and 4 and found their ocular evidence regarding demand of dowry and harassment and cruelty and torture to Purni Devi before her death was corroborated which also gets support by the medical evidence of Dr. Ashok Kumar chatterjee (PW 5). Relying the evidence, he convicted all these three appellants in both the criminal appeals, whereas acquitted the mediator Rohit Verma who is of another village and is not related with these appellants in both the criminal appeals, rather his role was only as marriage negotiator in solemnizing the marriage of Suresh Verma with deceased Purni Devi.
7. Assailing the order of conviction and sentence passed by learned Sessions Judge, Deoghar, learned counsel for the appellants in both the criminal appeals has submitted that only the family members of the deceased who are closely related and interested, have been examined by the prosecution. The marriage in between appellant Suresh Verma and Purni Devi was solemnized in the year 1983 and not in the year 1993. Hence, the presumption of dowry death under Section 304B, IPC is not made out attracting Section 113 of the Indian Evidence Act. PW 1 Shanti Devi, who is none else but the mother of the deceased, has deposed that the marriage of Purni Devi took place in the year 1983 and gauna took place in the year 1984. She does not member as to when her son-in-law appellant Suresh Verma along with acquitted accused Rohit had been to her house for demand of money. It was submitted that the genesis, manner of the alleged occurrence and any overt act committed by these appellants have not been proved by the prosecution. The learned Court below has erroneously convicted the appellants under Section 304B, IPC when the marriage took place in the year 1983 and the alleged date of occurrence took place on 13/14th December, 1994, i.e. beyond the period of seven years to presume dowry death. It was lastly submitted that due to non-examination of the IO, the place of occurrence could not be established and the appellants have been prejudiced. On. behalf of the appellants of criminal appeal No. 437 of 1997, it has further been argued that there is no allegation against them regarding demand of dowry.
8. The learned APP refuting the argument advanced on behalf of the appellants, has submitted that the learned Court below relied the evidence of PWs. 1, 2, 3 and 4 who have supported the demand of dowry and cruelty and harassment to Purni Devi just prior to her death. The manner of cruelty and harassment was also corroborated by the evidence of PW 5, Dr. A.K. Chatterjee who conducted autopsy on the dead body and found one lacerated injury 1″ x 1/2″ x 1/3″ in the middle of upper lip (2) one bruise 1″ x 1/2″ on left side of neck and (3) one bruise 1″ x 1/2″ on the right side of neck. The doctor found the face was swollen, the conjecture suffused, Frothy blood stained discharge was found from the mouth and there was discharge of faced around anus. On dissection of the neck, he found blood in the subcutaneous tissues of neck. There was fracture of hyoid bone and cricoid cartilage. Larynx trachea and bronchi congested containing frothy blood and mucus. Abdomen was empty. Bladder contained only urine. The death elapsed since post mortem was within 48 hours e which was conducted on 15.12.1994. The doctor opined that the death was due to asphyxia as a result of strangulation who prepared post mortem report (Ext. 2) in his pen and signature. He further opined that from such injury as found on the neck of the deceased instantaneous death may result.
9. The learned APP, on the evidence available on record has submitted that it was not a death due to drowning rather it was homicidal. Purni Devi was first done to death as her neck was fractured and as per opinion of the doctor (PW 5) that cold have resulted instantaneous death. Thereafter, the dead body was thrown into the water. That is why, stomach did not contain any water, rather it was empty.
10. The learned counsel for the appellants has taken advantage in arguing the case of the evidence of PW 1 Shanti Devi, mother of the deceased who in her cross-examination has deposed that her daughter was married with appellant Suresh Verma in the year 1983 and gauna took place in the year 1984. PW 1 is an illiterate woman who has given her LTI on her deposition. PW 5, the doctor, who conducted autopsy and issued post mortem report (EXt. 2), has mentioned that the age of the deceased Purni Devi to be 20 years. Appellant Suresh Verma, husband of the deceased, was examined under Section 313, Cr PC on 16th July, 1997 on which date, his age was assessed by the Court to be 24 years and he also discloses his age to be the same. Thus, I find that if the marriage of Suresh Verma was performed in the year 1983, then at that time, he would have been aged about 14 years and that of the age of his wife deceased Purni Devi would have been 7 years. which is not possible. On the other hand. PW 3 Muneshwar Verma, father of the deceased, has deposed that his daughter was married in the year 1993 and gauna took place in the year 1994. Similarly is the evidence of PW 4 Prakash Verma, brother of the informant, who is also informant of this case, when considered the oral evidence. I find that there is no doubt that marriage took place in the year 1993 and not in the year 1983 as deposed by PW 1, mother of the deceased, which is due to mistake. The learned Court below has discussed this aspect in detail and has come to the conclusion that the marriage took place in the year 1993. I do not find any valid reason to disbelieve that the marriage was not solemnized in the year 1993.
11. A careful analysis of Section 304B, IPC shows that this section has the following ingredients :–(i) The death of a woman should be caused by burn and bodily injury or otherwise than under normal circumstances, (ii) Such death should have occurred within seven years of her marriage, (iii) She must have been subjected to cruelty or harassment by her husband or any relatives of her husband and (iv) Such cruelty or harassment should be for or in connection with demand of dowry. Section 113B of the Evidence Act lays down that if soon before the death, such woman has been subjected to cruelty or harassment for or in connection with any demand of dowry, then the Court shall presume that such person has committed the dowry death.
12. I have to consider carefully the evidence of the witnesses who are closely related and interested witnesses within the four corners of ingredients as laid down under Section 304B, IPC and Section 113B of the Evidence Act. I have come to the concfusion that marriage was solemnized in the year 1993 and alleged date of occurrence took place on 13/14th December, 1994. Hence, the death of Purni Devi is within seven years of her .marriage and also while living in her in-law’s house at village Sumbha, PS Sarwan, District Deoghar. Now I have to consider the other ingredients of Section 304B of the IPC. The evidence of the doctor (PW 5) shows that the death was due to strangulation and it was not a case of drowning. Hence the death is also unnatural and it was homicidal death. Hence the death was due to injury caused to her prior to her death which was otherwise than under normal circumstances. Now the other ingredients as to demand to dowry and subjected to cruelly or harassment to the deceased has to be considered.
13. PW 1, PW 3 and PW 4 have deposed that appellant Suresh Verma in criminal appeal No. 512 of 1997 along with Rohit Verma had been to their home and demanded Rs. 5000/- as dowry. On refusal, they had threatened to meet with dire consequences. Since thereafter they started torturing and harassing Purni Devi and ultimately she was done to death and was thrown into the well. These witnesses have not specifically alleged that Puran Verma and Savtri Devi (both appellants in criminal appeal No. 437 of 1997) regarding demand of dowry, torture or cruelly towards Purni Devi, rather they have named appellant Suresh Prasad Verma and Ors.. The others have not specifically been named in their evidence. The evidence of these witnesses is that only appellant Suresh Verma in criminal appeal No. 512 of 1997 along with Rohit Verma, the mediator of marriage, had been to the house of the informant at village Bhandaro, P.S. Sarwan and had demanded Rs. 5000/-. On refusal appellant Suresh Verma had threatened to meet with dire consequences. These witnesses have deposed the that Prakash Verma had gone in search of Purni Devi to their village home and also accompanied them in search of Purni Devi, but when the dead body of Purni Devi was found in the well of Chamru Mahto of his own village, he fled away. These witnesses also saw bleeding from the mouth and night-soil discharged and also other injuries on the dead body which was corroborated. by PW 5, Dr.Ashok Kumar Chatterjee who conducted autopsy. The evidence of PW 5 is very clear that stomach was empty. The neck and hyoid bone and cricoid cartilage were found fractured. The doctor is very specific that due to such injury on the neck, the deceased might have died instantaneously. That is why no pinch of water was found in the abdomen as it was a death due to strangulation and not due to drowning.
14. The marriage took place in the year 1993. Two months prior to the alleged date of occurrence, appellant Suresh Verma along with Rohit Verma had. gone to the village of the informant for demand of Rs. 5000/-. On refusal, appellant Suresh Verma had threatened that the result will be bad. Four days prior to the alleged date of occurrence, they had pacified the appellants and asked them not to torture Purni Devi for money, but they did not respect, rather started harassing and torturing Purni Devi and after causing her murder, her dead body was thrown into the well. The death was unnatural and due to strangulation and assaults on her person. Husband Suresh Verma only to screen himself from legal punishment had gone in search of Purni Devi to the house of the informant. He had also gone in search of Purni Devi along with them, but as soon as the dead body was brought out from the well, he fled away. His father was ploughing in the filed. When the informant asked him, he showed his ignorance, rather informed that his son Suresh Verma had gone to inform who will disclose-about the whereabouts of Purni Devi. The evidence of these witnesses is only against Suresh Verma regarding demand of dowry of Rs. 5000/-. There is no whisper of any demand against his father and mother who are appellants in criminal appeal No. 437 of 1997. There is no direct evidence regarding the manner of the alleged occurrence. Hence, any overt act against the appellant of criminal appeal No. 437 of 1997, who are father-in-law and mother-in-law of the deceased Purni Devi, could not be attributed as they had not gone for demand of Rs. 5000/-, rather it was their son Suresh Verma who had been to the house of the informant for demand of Rs. 5000/- and on refusal, he is the person who threatened to meet with dire consequences prior to her death. Learned Sessions Judge, Deoghar did not properly and objectively considered the evidence to reach a conclusion that the appellants in criminal appeal No. 437 of 1997 were guilty of the offence. I find manifest error in respect in the finding of guilt of these appellants by the learned Sessions Judge. Under the circumstances, order of conviction and sentence passed against them is not sustainable as it suffers from legal infirmity and illegality. On the other hand, I find that the learned Court below meticulously considered the evidence both oral and medical and has come to the conclusion that Suresh Verma, husband of the deceased and appellant in criminal appeal No. 512 of 1997 is the sole person responsible for demand of Rs. 5000/- as dowry within seven years of marriage and for non-fulfillment of the said demand, he is the person who harassed and tortured his wife causing injuries on her person and also by causing her death by strangulation which gets supports by PW 5 Dr. A.K. Chatterjee who conducted autopsy and issued post mortem report (Ext. 2) which is very clear about the torture and cruelty and harassment just prior to her death. Hence I do not find any legal infirmity to interfere with the finding of . the learned Sessions Judge holding this appellant guilty under Section 304B, IPC for causing dowry death with presumption of Section 113B of the Indian Evidence Act.
15. In the result, ! find merit in criminal appeal No. 437 of 1997 which succeeds and is allowed. Both the appellants – Puran Verma and his wife Savitri Devi, are acquitted. As they are on bail, they are discharged from the liability of their bail bonds. So far appellant Suresh Verma in criminal appeal No. 512 of 1997 is concerned, I do into find any merit in it which fails and is dismissed. The order of conviction and sentence passed against him by the learned Court below is confirmed.
S.J. Mukhopadhaya, J.
I agree.