M. Saran, J.
1. Cr. Appeals No. 219 of 2004 and 202 of 2004 have been heard together and are being disposed of by this common judgment.
2. These two appeals have been preferred against the common judgment and order of conviction dated 31.3.2004 passed by Sri Satendra Kumar Pathak, Additional Session Judge, Fast Track Court No. 3, Patna in Session Trial No. 376/1998 whereby and whereunder he convicted the appellants Under Section 304B/34 of the Indian Penal Code (in short as IPC) and sentenced each of them to undergo R.I for 10 years and also to undergo R.I for four months Under Section 3 of Dowry Prohibition Act and to pay a fine of Rs. 2,500/- and in default of payment of fine to further undergo R.I for one month. The sentences, however, have been ordered to run concurrently.
3. The prosecution case, in short, is that informant, Rajesh Kumar Sinha, lodged a written report on 19.12.1996 before Officer-in-Charge, Shastrinagar police station alleging therein that his sister Indu was married to Sri Ballav Narain on 25.5.1990 according to Hindu custom and on the next day of the marriage when the barat stayed for having khichadi accused Sri Ballav Narain and other accused persons demanded ornaments worth Rs. 50,000/- and a coloured television after putting the condition unless the aforesaid demand was fulfilled they would not take the bride to their house. The father of the informant, who was a practicing lawyer at Buxar court, requested along with his colleagues and relatives and compromised that demands will be fulfilled when his economic condition would improve. The matter, however, was settled and his sister went to her in-laws place. It is further said that father of the informant was suffering from heart trouble and there was responsibility of four brothers and two sisters of the informant on him. The father of informant could not fulfill the demands after making much efforts. During this period the sister of informant came to Buxar once when she had allegedly disclosed that she was being ill treated in her in-laws house by her husband, in-laws, nanad, gotni and elder brother of her husband and she was being tortured in various ways. It is further disclosed in the FIR that since his sister was not fair complexioned lady and her husband Sri Ballav Narain was fair complexioned man so he was not pulling well with his wife and he had some illicit relationship with a girl, named Ritu. The deceased had further disclosed that when she raised objection to the continuous illicit relationship she was assaulted. He also alleged that deceased was not even allowed to come back to her parents house on the occasion of marriage of her sister and her elder brother. She was also not allowed to see her ailing nana who was proceeding for Bombay for treatment. The informant further claims that he went to the residence of the accused persons at Friends Colony, Ashiana Nagar, Patna and requested to send his sister to Buxar to meet her nana but the accused persons badly treated him. The informant returned back to Buxar. The sister of informant had written letter dated 29.7.1991 addressed to her father when he was alive about the ill treatment and torture committed by the accused persons with her. The father of informant died on 31.3.1996 by cancer. It is further said that on 8.12.1996 a Constable of Buxar Sadar police station came at the place of the informant and informed him about the death of his sister. The informant came to the house of his sister at Patna alone with his brother but the accused persons neither talked to him nor did they disclose as to how and under what circumstances his sister died. According to the informant his sister was having good health but due to ill treatment and torture she died. On the basis of aforesaid written report which was forwarded to the Officer-in-charge, Gardanibaeh police station, Gardanibaeh police station (Shastrinagar) PS case No. 600/1996 dated 19.12.1996 was registered for investigation Under Section 304B of IPC and 3/4 of Dowry Prohibition Act. The police after investigation submitted charge sheet on the basis of which cognizance was taken and thereafter the case was committed to the court of Session for trial.
4. The defence of the accused was total denial of the allegation and false implication in the case. Their further defence was that informant's sister. Indu died due to ailment.
5. After trial the learned trial court convicted and sentenced the appellants for the period mentioned above. Against the said conviction and sentence the appellants have preferred the present appeal before this Court.
6. In order to bring home the charges the prosecution examined 11 witnesses who are, PW1, Manoranjan Prasad, PW2, Poonam Prasad, PW3. Surendra Prasad Singh, PW4, Devendra Singh, PW5, Rajesh Kumar Sinha, PW6, Shiv Pujan Lal, PW7, Kamla Devi, PW8, Binod Kumar Sinha, PW9, Kumari Vandana, PW 10, Dr. Ashok Kumar Yadav and PW11, Viiay Kumar Singh.
7. The defence also examined three witnesses who are DW1, Dr. Brajmohan Prasad, DW2, Ishwari Narain Sinha and DW3, Sanjay Kumar.
8. PW1 is resident of Friends Colony, Ashiana Nagar, Patna. He stated before the court that he learnt that Indu Devi died due to illness about 3-4 years ago.
9. PW2 is wife of PW1. She turned hostile and stated before the court that she had no knowledge about the alleged occurrence.
10. PW3 also turned hostile. He stated that dead body was not seized in his presence.
11. PW4 also turned hostile. He stated before the court that inquest report was not prepared in his presence.
12. PW10, Dr. Ashok Kumar Yadav on 8.12.1996 was posted as Associate Professor, Forensic Medicine at Patna Medical College Hospital. On that date at 12.20 PM he performed post mortem examination on the dead body of Smt. Indu Sinha wife of Sri Ballav Narain and found the following;
13. Rigour Mortis was appearing in the leg thin built pallor mark emaciated and bed sore on the buttock.
14. No any external injury was found after opening thoracic abdominal cavity. The lungs, lever, spleen were found in diseased condition.
15. Cause of death shock followed by chronic illness. Time of death within 6-12 hours from the time of post mortem examination. Post mortem report is exhibit-4. In cross examination he stated that cause of death may said to be natural death.
16. PW11 is a formal witness who simply proved the carbon copy of inquest report exhibit-5.
17. The prosecution has brought on record some papers which may be seen first.
18. Exhibit-1 is the written report dated 19.12.1996 filed by informant Rajesh Kumar Sinha (PW5) before the Officer-in-charge of Shastrinagar PS. Exhibit-2 is a letter dated 29.7.1991 purported to have been written by the deceased to her parents from Patna. Exhibit-2/1 is another letter alleged to have been written by the deceased during her life time to her parents. Then Exhibit-2/2 is letter dated 19.8.1990 alleged to have been written by Indu to her parents. Exhibit-3 is seizure-cum- production list dated 4.1.1997 prepared by I.O in respect of Exhibit 2/1 and 2/2 said to have been produced by Vinod Kumar Sinha son of later Uma Shankar Prasad of village Sriniwas Mathiva PS Buxar district Buxar. Exhibit-4 is the post mortem report dated 8.12.1996 of the deceased lady. Exhibit 5 is carbon copy of inquest report dated 8.12.1996. Material exhibit-1 is the bed head ticket dated 22.11.1996 of Indu Sinha. The defence on the other hand brought on record following papers. Exhibit A is copy of U.D case No. 22/1996 dated 8.12.1996 registered on the basis of application filed by accused Sri Ballav Narain. Exhibit-B is prescription dated 16.6.1998 of Dr. Brajmohan Prasad in respect of Smt. Indu Sinha wife of S.B. Narain. Exhibit C is receipt of Patna Municipal Corporation dated 8.12.1996. Exhibit-D is death certificate of Indu Sinha. Exhibit E is prescription of Dr. P.L. Das dated 28.11.1996 in respect of Indu Sinha. Exhibit-F to F/5 are cash memo receipts of different medicine shops. Exhibit G to G/1 are receipts of blood bank showing supply of blood of B+ group. Exhibit H and H/1 are receipt showing supply of blood on 22.11.1996 and 23.11.1996. Exhibit I to I/6 are pathological report of Smt. Indu Sinha. Exhibit J is discharge ticket of Patna Medical College Hospital showing discharge of Smt. Indu Sinha from the hospital on 7.12.1996.
19. Now coming to the prosecution witnesses PW5 (Rajesh Kumar Sinha) is the informant of this case and brother of deceased Indu Sinha. He stated before the court that in the morning of 8.12.1996 a Constable of Buxar PS came and informed that his sister who was married in the Friends Colony, Ashiana Nagar, Patna is dead. Thereafter, this witness came to Patna and went to the house of his sister. He was told nothing by anybody. He, however, learnt from the neighbours that his sister is dead. Thereafter, he went to Shastri Nagar PS but his report was not accepted. He then met Buxar S.P who forwarded his application to City S.P., Patna. Again he went to Shastri Nagar PS on 19.12.1996 and filed written report Exhibit-1. He got information that his sister was killed by her father-in-law, mother-in-law and husband after torturing her. He also alleged that his sister was kept locked in a room and food was not provided to her. He proved three letters Exhibit 2 to 2/2 said to have been written by his sister to show that his sister was being tortured by the accused persons. He further stated that two months prior to the death of his sister he had gone to see her but to utter surprise he found her locked in a room and inspite of his request the accused persons did not open the door. On the other hand they assaulted him. Thereafter, he returned back home. He further stated that his sister was married to Sri Ballav Narain on 20.5.1990 and after sindurdan they demanded Rs. 50,000/- and coloured television but his father had no means to provide the same. After great persuasion the bidagiri was performed. He also stated that after marriage his sister came to Buxar only once. She had informed her father that her mother-in-law, father-in-law, brother-in-law, husband and others used to assault and torture her for Rs. 50,000/- and coloured television. It appears that suggestion was given to this witness that all the three letters are forged and fabricated one.
20. PW6, Shiv Pujan Lal is an advocate of Buxar town. He is a hearsay witness. He has no personal knowledge about the alleged incident.
21. PW7 (Kamla Devi) is mother of deceased lady. She stated before the court that at the time of bidai the accused persons started making demand of Rs. 50,000/- and coloured television which they could not provide.
22. PW8 (Vinod Kumar Sinha) is brother of deceased lady. He stated before the court that a Constable of Buxar PS came and informed about the death of their sister at Patna. Then he along with his brother came to Patna at the Place of their sister. They went to Shastri Nagar PS but the police refused to register the case. Thereafter, he along with his brother met Buxar SP and informed him in writing about the murder of Smt. Indu Sinha. The Buxar S.P forwarded that petition to City S.P., Patna. Thereafter he went to Mumbai and his brother Rajesh Kumar Sinha filed the case.
23. PW9 (Kumari Vandana) is the investigating officer of the case. According to this witness on 8.12.1996 an U.D case was registered at the police station in respect of death of Smt. Indu Sinha. On 19.12.1996 informant (Rajesh Kumar Sinha) filed a written report at the police station on the basis of which the present case was registered. She received two letters from the brother of deceased lady purported to have been written by the deceased lady. She prepared seizure list of the same. She then went to Patna Medical College Hospital and recorded statement of Dr. J. Dev. She received the carbon copy of bed head ticket from the Superintendent. Patna Medical College Hospital. According to this witness, the letters, exhibit-2 series, were given to her by Rajesh Kumar Sinha on 19.12.1996 but the seizure list of the same was prepared on 4.1.1997.
24. The defence examined three witnesses whose evidence may also be seen.
25. DW1 (Dr. Brajmohan Prasad) deposed before the court that he used to attend on every Sunday Medicine Corner, Ashiana Road, Patna between 12 AM to 2 PM since 1995. On 16.6.1996 Indu Sinha wife of Sri Ballav Narain came for her treatment. According to this witness her menstrual period was continuing since 5-6 days. On examination he found her mildly anemic. He advised her three medicines. He again examined her on 7.7.1996. 4.8.1996. 8.9.1996. 13.10.1996 and on 17.11.1996. He further deposed that patient was continuing spicy food and did not take medicine for a fortnight which aggravated her condition.
25. DW2 is brother of Sri Ballav Narain. According to this witness in the month of November the health of deceased lady deteriorated. She was first treated by Dr. T.L. Das, a Mohalla doctor. Then she was examined by Dr. Mahroof Khan on 22.11.1996 and on his advise she was admitted in the emergency ward of Patna Medical College Hospital where blood transfusion was done. She was discharged from Patna Medical College Hospital on 7.12.1996 and on the next date in the morning she died.
26. Similar is the evidence of DW3 (Sanjay Kumar).
27. It is the case of prosecution that death of informant's sister took place on 8.12.1996. It appears from the evidence of PW5 (informant) that on 8.12.1996 in the morning hours a Constable of Buxar PS had gone to his house and had informed him about the death of deceased lady but the written report with respect to the occurrence in question was filed before Officer-in-Charge of Shastri Nagar PS on 19.12.1996 after lapse of 11 days. During evidence PW5 (informant) for the first time stated before the court that on 8.12.1996 he went to Shastri Nagar PS to lodge information but the police officer refused to receive his report. Thereafter he went to S.P., Buxar and narrated the incident who forwarded his application to the City S.P Patna and thereafter on 19.12.1996 he went to Shastri Nagar PS and filed the written report Exhibit-1. In the written report if has not been mentioned that on 8.12.1996 he had gone to Shastri Nagar PS to lodge the FIR. It has also not been mentioned in the written report that he had filed a written application before the S.P., Buxar which was forwarded to City S.P., Patna. No such report purported to have been filed before S.P., Buxar has been brought on record. On the other hand it appears that Sri Ballav Narain, husband of deceased lady, on 8.12.1996 filed an application before the Shastri Nagar PS regarding death of his wife and the same was registered as U.D. case No. 22/1996 dated 8.12.1996 vide Exhibit-A. It further appears that such information was given at the police station at about 11.30 hours. Therefore, on 8.12.1996 the police was examining the matter. The post mortem on the dead body of deceased lady was also performed on 8.12.1996 at 12.20 PM. Thus, explanation given by the informant during trial regarding delay in lodging the FIR is not satisfactory. Delay in setting the law into motion by lodging of complaint in court or of FIR at the police station is normally viewed by the courts with suspicion because there is possibility of concoction of evidence. It is true that delay by itself would not be a ground to doubt the prosecution story but it would only call for a greater scrutiny of evidence of witnesses.
28. It was contended on behalf of appellants that the learned trial court committed serious error in law by giving weight to the three letters, exhibit-2 series, allegedly written by the deceased to her parents. He contended that genuineness of these three letters was seriously challenged during trial and, so, it was incumbent for the prosecution to get writing of these letters compared with the admitted writing of deceased lady by a handwriting expert. In this connection, he referred to the evidence of I.O (PW9) to urge that she admitted in evidence that the admit card of deceased was in existence but she did not take any step to get the letters compared with the admitted writing of the deceased by an expert.
29. As mentioned above, the written report was filed before Shastri Nagar PS on 19.12.1996. The written report is in two pages in which meticulous details have been mentioned but surprisingly the three letters were not filed before the police along with report. Seizure-cum-production list exhibit-3, indicates that the letters were produced on 4.1.1997 at 2 PM by Binod Kumar Sinha. In the written report it has also not been mentioned that the informant is in possession of these three letters. It further appears from the evidence of PW9 that she had seen the admit card of deceased Indu but no step was taken to get the exhibit 2 series compared with the admitted hand writing of Indu by any hand writing expert. Then it appears that one of the letters exhibit-2/1 is dated 4.1.1997 that is much after death of deceased. All these circumstances taken together gives an impression that these letters have been brought into existence for the purpose of this case.
30. Section 304B of the Penal Code reads as follows:
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative or her husband for, or in connection with, any demand of dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death.
Explanation- For the purpose of this sub section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
31. Then Section 113B of the Evidence Act has been enacted for raising presumption. It reads:
when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for in connection with any demand for dowry, the court shall presume that such person had caused the dowry death.
32. The expression 'otherwise and under normal circumstances' appearing in Section 304B would mean that death took place not in usual course but under suspicious circumstances. The question whether a person has committed dowry death of a woman what is necessary is that it should be shown that soon before her unnatural death, which took place within seven years of marriage the deceased had been subjected to cruelty or harassment for, or in connection with, demand of dowry. If that is shown the court will presume that such a person has caused dowry death.
33. As mentioned above, an U.D case was lodged by the husband of deceased lady before Shastri Nagar PS on 8.12.1996. The inquest report exhibit 5 was prepared on 8.12.1996 and at that time no mark of injury was found on the body of deceased. On the other hand it is mentioned in the inquest report that deceased died on account of illness. The evidence of doctor (PW10) shows that deceased died due to chronic illness. He also observed that it was a case of natural death. There is nothing in the evidence to show that death of deceased lady was caused by torture or bodily injury or the same occurred otherwise than under normal circumstances. There is also no evidence on record to show that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with demand of dowry. If the deceased was maltreated and lust for money was continuing from the beginning of the marriage then why no information was given to the police or any other authority for the same. If she was not being allowed to meet or talk to her family members then why no such information was given to the police.
34. On the other hand there is evidence on record that the deceased lady was being treated for several months. She was also admitted in Patna Medical College Hospital as indoor patient and blood transfusion was given to her. She was discharged from Patna Medical College Hospital on 7.12.1996 and unfortunately she died on 8.12.1996.
35. I have examined the judgment of the trial court. Learned Additional Session Judge has unnecessarily placed much reliance on the letter exhibit-2 series.
36. In the aforesaid facts and circumstances. I find and hold that prosecution has failed to establish both the charges against the appellants beyond all reasonable doubt.
37. These two appeals are, accordingly, allowed and the judgment of conviction and sentence passed against the appellants is hereby set aside.
38. The appellants, if in custody, are directed to be released forthwith.