Chandra Mohan Prasad, J.
1. This appeal is against the judgment of conviction dated 24th February 2003 and the order of sentence dated 26th February 2003 passed in Sessions Trial No. 55 of 1993/90 of 2002 of the Additional Sessions Judge, FTC-III, Gopalganj whereby each of the five appellants has been convicted under Section 304B, 498A and 201 of the Indian Penal Code as well as Section 4 of the Dowry Prohibition Act and respectively sentenced to R.I. for 10 years, R.I. for 3 years, R.I. for 2 years and R.I. for 2 years.
2. The fard-beyan (Ext-2) of the case was recorded by ASI R.K. Singh on the statement of the informant Ramadhar Tiwary, the father of the deceased Durgawati Devi at Gopalganj Police Station on 17th September 1989 at 9:00 A.M. The informant stated that about 4 years ago he had married his eldest daughter Dutrgawati (deceased) to Prakash Mishra (appellant) son of Raja Mishra (appellant) and at the time of Tilak ceremony he (informant) had given cash of Rs. 5,000/- utensil set, watch, radio etc. but when Barat had arrived at the time of marriage, the father (Raja Mishra) had demanded Motor-cycle but on his (informant's) request marriage was performed and they took Durgawati to their house. She (deceased) remained in her Sasural for about one year. During this period, on intervals, he (informant) used to go to deceased's Sasural to meet her and whenever he met her she complained that the appellants used to beat her and abuse her saying that she would be finished, if the demand of Motor-cycle was not fulfilled. He (informant) further stated that he persuaded his daughter for keeping patience and he also persuaded Raja Mishra (appellant.) not to torture and harass her (deceased) and that he (informant) was a poor man and he was not in a position to fulfil the demand. At this, all the appellants engaged into a quarrelsome talk with him and they asked to take his daughter with him, if he was unable to fulfil the demnad. He (informant) further stated that since his daughter was terrified he brought her with him to her Maika. She lived there for about a year. About six months back his son-in-law Prakash Mishra (appellant) came to his (informant's) house and requested him (informant) to send her (deceased) saying that he (Prakash) will ask his parents not to torture and harass her (deceased). Believing his (Prakash Mishra's) words he (informant) sent his daughter (deceased) with him (Prakash Mishra) to her Sasural. He (informant) further alleged that about 20 days ago Prakash Mishra and Raja Mishra (appellants) came to him and they asked to fulfil the demand of Motor-cycle or to give Rs. 17,000/- in lieu of it and they also threatened that he (informant) will not be able to see his daughter (deceased) again, if the demand was not fulfilled. He (informat) requested them (Prakash Mishra and Raja Mishra) that he was a poor man and he had to marry one another daughter, hence, he had no capacity to fulfil the demand, whereupon they threatened him again. He (informant) further stated that on the last Friday when he went to meet his daughter (deceased) he found Prakash Mishra and Raju Mishra (appellants) and while he was asking about the welfare of his daughter (deceased) all the appellants assembled there and they fell upon to assault him asking to flee away, else he (informant) would be killed. Then he (informant) left appellants' house in order to save his life and had learnt from Bihari Mishra and other neighbours there that due to non-fulfilment of the demand of motor-cycle the appellants killed the deceased in the night of 13th September 1989 and they disappeared the dead-body. The informant alleged that due to non-fulfilment of demand of dowry, the appellants killed his daughter and disappeared the dead-body. On the basis of the fard-beyan FIR (Ext-1) was lodged and the investigation commenced. On completion of investigation, charge-sheet was submitted against the appellants who were put on trial wherein they have been convicted and sentenced, as above.
3. As many as seven witnesses were examined by the prosecution. Out of them P.W.4 Ramadhar Tiwary is the informant himself. P.W.1 Sanjay Tiwary and P.W.2 Pramod Tiwary are the younger brothers of the deceased. P.W.3 Awadh Bihari Mishra @ Bihari Mishra is a neighbour of the appellants but this witness has been tendered by the prosecution. P.W.5 Dinesh Kumar Mishra has turned hostile and he deposed that during night he woke up on hearing hulla and saw that the house of appellant Raja Mishra was burning in fire and people were trying to douse the fire. This witness has not said anything about the allegations as levelled by the informant and he has denied to have made any statement before the I.O. supporting the case of prosecution during investigation. P.W.6 Ram Naresh Mishra is a formal witness who has proved the writings and signature on the FIR marked Ext-1. P.W.7 Majrul Haque is also a formal witness who has proved the writings and signature on the fard-beyan marked Ext-2. The I.O. of the case was not examined by the prosecution.
4. Firstly, I take up the evidence of the informant (P.W.4). He deposed that he had married his daughter (deceased) to Prakash Mishra (appellant) son of Raja Mishra (appellant) about four years before the occurrence and he had given cash of Rs. 5,000/- along with watch, radio, utensils and clothes in Tilak ceremony. He further deposed that at the time of marriage, when Barat had come to his house, Raja Mishra made a demand of Motor-cycle or Rs. 17,000/- in lieu of it. He (informant) requested that he had to marry one another daughter and he had to bear the cost of education of his sons, hence, he was not in a position to fulfil the demand. On his request, the marriage was performed and his daughter (deceased) went to her Sasural. He continued to depose that after marriage he used to go to his daughter and met her at intervals and that whenever he (informant) met his daughter (deceased) complained him that her Sasural people, namely, the appellants used to beat her asking for fulfilment of demand of Motor-cycle or payment of Rs. 17,000/- in lieu of it and they also used to threaten her for non-fulfilment of the demand. The informant further deposed that two years before the occurrence, appellant Brij Bihari Mishra had asked him to take his daughter to his (informant's) house and that thereafter he had brought his daughter from her Sasural to his house and she had remained there for one year and during this period a female child was also born to her. He continued to depose that thereafter, his son-in-law Prakash Mishra (appellant) came to his house and asked him to send his daughter (deceased) to her Sasural saying that he (Prakash Mishra) had persuaded his parents not to harass her (deceased). On Prakash Mishra stating like this, he (informant) sent his daughter to her Sasural. The informant continued to depose that about 8-9 months after this, appellant Raja Mishra and Prakash Mishra came to his (informant's) house and asked for giving a Motor-cycle or Rs. 17,000/- in lieu of it and they also threatened that he (informant) will not be able to see his daughter again in case the demand was not fulfilled. He (informat) expressed his inability in fulfilling the demand whereupon they returned back repeating the threat that he (informant) will not be able to see his daughter again. The informant further deposed that, thereafter, one day when he went to his daughter's Sasural and met his Samdhi (Rajaram Mishra) and paid respect to him, all the appellants started abusing him and they also fell upon to assault him and that Raja Mishra had also given him a Lathi blow and that, thereafter, he left that place and went to their neighbour Bihari Mishra who disclosed to him that the appellants had killed and disappeared the dead body of his daughter.
5. During argument, learned Counsel for the appellants argued that the appellant says that Raja Mishra had given him Lathi blow but this is not mentioned in the fard-beyan. No doubt, the giving of Lathi blow is not specifically mentioned in the fard-beyan but there is mention that the appellants had abused him and they had fallen upon him to assault him, hence, he had fled away from there. The fard-beyan is a concise statement of the informant about the occurrence and in the facts and circumstances of the case the non-mentioning of Lathi blow does not discredit the informant in his evidence. At Para-27 of his cross-examination, the informant stated that there was no witness to say about the appellant assaulting and abusing the deceased and that the best witness to this was the deceased herself who is no more. The informant who is the father of the deceased and who used to meet his daughter says to have learnt about the appellant assaulting and abusing the deceased due to non-fulfilment of the demand. He has also stated about the appellant Prakash Mishra and Raja Mishra going to his house and demanding the Motor-cycle or Rs. 17,000/- in lieu of it and giving repeated threats to him that he will not be able to see his daughter again, in case the demand was not fulfilled. There is nothing in the evidence of the informant to discredit his testimony and he supports the prosecution story on all material points.
6. P.W.1 Sanjay Tiwary, the brother of the deceased deposed that the deceased had been married to appellant Prakash Mishra and that after marriage Raja Mishra, father of Prakash Mishra started demanding a Motor-cycle or Rs. 17,000/- in lieu thereof and that they had also threatened his father (informant) that he will not be able to see the deceased again, if the demand was not fulfilled. He further deposed that due to non-fulfilment of the demand, the appellants killed the deceased. At Para-16 of his cross-examination, the attention of this witness was drawn towards his previous Police statement that any dowry had not been demanded. This witness denied to have made such statement. In this case, the I.O. of the case was not examined. However the case diary which was on record was perused in this context and Para-70 of the case diary contains the statement of this witness wherein he has further stated that there was no demand of dowry but he has stated that the appellants were torturing, harassing and beating the deceased and that it was due to this that the deceased committed suicide by setting herself on fire. Here, the learned Counsel for the appellants argued that according to his statement before the Police there was no demand of dowry and the deceased had committed suicide by burning herself. At Para-12 of his evidence, P.W.1 deposed that the demand of Motor-cycle and money in lieu thereof had not been made from him but the demand was made from his father. The learned A.P.P. pointed out that P.W.1 deposed on 13th June 1995 and on that day he was aged about 16 years as recorded in the heading of deposition and the date of occurrence was six years, prior to that date and the marriage had been performed four years prior to the date of occurrence. The demand of Motor-cycle and money in lieu of it was made firstly at the time of marriage i.e. about ten years back and on that day the P.W.1 would be a boy aged about 6 years only. More so as admitted by this witness himself the demand was not made from him but from his father. Hence, under these circumstances it is natural that this witness who was a boy reading in a School had no sufficient knowledge about the demand of Motor-cycle and, therefore, his statement before Police that there was no demand of dowry does not remain of much importance to discredit the informant with respect to the allegation of demand of Motor-cycle and the demand of money in lieu thereof. Moreover this witness has stated in his evidence as also stated before the Police that the appellants tortured and harassed the deceased.
7. P.W.2 Pramod Kumar Tiwary, the younger brother of the deceased has also deposed on similar line as that of P.W.2. He deposed on 17th June 1995 when he was 14 years old and thus, at the time of marriage of the deceased, the witness would be aged 4 - 5 years only. In these circumstances, the statement of this witness as made before Police that there was no demand of dowry cannot be considered due to the reasons aforesaid for discrediting the informant about the demand of Motor-cycle and in lieu thereof Rs. 17,000/-.
8. P.W.3 Awadh Bihari Mishra who is the close neighbour of the appellants was tendered by the prosecution and he did not support the prosecution story about the demand of Motor-cycle and causing harassment to the deceased due to non-fulfilment of demand, rather at Para-4 of his cross-examination, the witness went to the extent of saying that the informant had lodged the case falsely.
9. Learned A.P.P argued that since this witness is a close neighbour of the appellant, he came under the influence of the appellants and he did not choose to support the case of the prosecution. It was also argued that being a close neighbour, he did not like to incur the anguish of the appellants by deposing the real facts and due to this reason he did not support the case of the prosecution. In the circumstances of the case, I feel that any adverse inference is not fit to be drawn against the case of the prosecution due to this witness not supporting the prosecution case.
10. Thus there are only three witnesses, namely, the informant and his two sons, namely, P.Ws. 1 & 2 who have deposed about the case of prosecution supporting the prosecution story. The evidence of the informant categorically establishes that at the time of marriage Raja Mishra, the father of the bride-groom (Prakash Mishra) had demanded a Motor-cycle or Rs. 17,000/- in lieu of it but due to persuasion and request the marriage was performed without it and the deceased was taken to her Sasural. The evidence further establishes that before the occurrence, Raja Mishra and Prakash Mishra, father and son had gone to the informant and they had demanded Motor-cycle or Rs. 17,000/- in lieu of it and they had given repeated threats that in case the demand is not fulfilled, he (informant) will not be able to see his daughter again. It is also established in evidence that whenever the informant went to meet his daughter (deceased) he learnt from her that the appellants were torturing and harassing her for non-fulfilment of the demand. The informant also established through evidence that when he went to the deceased's Sasural to know about the welfare of his daughter (deceased) the appellants had abused him and fell upon him to assault him and that the appellant Raja Mishra had given a Lathi blow. The evidence also shows that the appellants had not informed the informant about the death of the deceased and they had disposed of the dead body.
11. During hearing, referring the statement of P.Ws.1 & 2 as made before the Police under Para-70 of the case diary, learned Counsel for the appellants argued that the deceased had committed suicide. Learned A.P.P. replied that P.Ws. 1 & 2 were not the eye witnesses to the occurrence and it was simply their guess that they thought and hence, they might have stated the Police that the deceased committed suicide but any way the death was not under normal circumstance. Learned A.P.P. also argued that even in case it is admitted for argument sake, that the deceased committed suicide, it will constitute a case of death not under normal circumstance. It was pointed out by the learned A.P.P. that the evidence of the informant clearly establishes that the Motor-cycle and money in lieu of it was being demanded by appellants Prakash Mishra and Raja Mishra and they had also threatened that the informant would not be able to see his daughter (deceased) again in case the demand is not fulfilled. There is evidence of the informant that the deceased had complained him that the appellants were torturing and harassing her due to non-fulfilment of the demand.
12. Considering the facts, circumstances and the evidence of the case, I find that the prosecution has been able to prove beyond doubt that the two appellants, namely, Prakash Mishra and Raja Mishra had tortured and harassed the deceased prior the death, due to non-fulfilment of demand of Motor-cycle or money in lieu of it and the death had occurred under the circumstances other than normal and the dead body was disposed off without informing the parents of the deceased. Therefore, their conviction under Sections 304B, 498(A) and 201 IPC and Section 4 of the Dowry Prohibition Act is fit to be maintained and it is, accordingly, confirmed. The quantum of sentence as awarded by the trial court is also fit and proper hence, the same is also maintained. All the sentences will run concurrently.
13. So far the case of the remaining appellants, namely, Braj Bihari Mishra, Shail Kumari Devi @ Shail Kumar Devi and Nirmala Devi is concerned, I find that there is general and omnibus allegation against them and the evidence with respect to them is not very specific with details of the overt acts committed by them. In such view of the matters, I feel that these appellants are entitled to benefit of doubt. Accordingly, by way of giving benefit of doubt, these three appellants are acquitted of the charges levelled against them. They are also discharged from the liability of bail bonds.
14. In the result the appeal is allowed in part in the manner as indicated above.