1. The present appeal arises against the judgment of conviction and order of sentence dated 17th April 2001 and 21st April, 2001 respectively passed by the 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 243 of 2000 whereby and whereunder, the learned trial Court convicted the appellant for the offence under Sections 498A and 304B of the Indian Penal Code as well as under Section 3/4 of the Dowry Prohibition Act. The appellant was sentenced to undergo R.I. for life for the offence under Section 304B of the Indian Penal Code, R.I. for a period of three years for the offence under Section 498A of the Indian Penal Code, R.I. for a period of two years for the offence under Section 3 of the Dowry Prohibition Act and R.I. for a period of six months for the offence under Section 4 of the Dowry. Prohibition Act. However, all the sentences were ordered to run concurrently.
2. Prosecution case, in short, is that informant's sister Hemlata Dhibar was married with the present appellant Kanhai Dhibar of village Govindpur 6-7 months prior to the date of her death. In the said marriage dowry in cash and kind was given to the appellant, but an amount of Rs. 5000/- by way of dowry, which was assured to be paid after the marriage, could not be paid by the informant due to his poverty and, therefore, due to non-fulfillment of demand of dowry, the appellant Kanhai Dhibar used to torture his wife i.e. deceased, mentally and physically and ultimately the appellant done away with the life of Hemlata by putting her to fire and he also cremated her dead body without informing the informant or his other-family members.
3. Defence case was of total denial of the allegation and of false implication.
4. In order to establish the charges, altogether 8 prosecution witnesses were examined on behalf of the prosecution. Out of whom P.W. 1 is the informant Kanhai Dhibar, who is brother of the deceased, P.W. 2 is Satya Devi, the mother of the deceased, but she was declared hostile, P.W.-3 is Deepak Dhibar, he is also a hostile witness, P.W.-4 is Basudeb Dhibar, P.W.- 5 is Dr. Shailendra Kumar who held the Post Mortem examination on the dead body of the deceased, P.W.-6 Anil Bhusan Samodar and P.W.-7 Sanat Kumar Mandal are the witnesses on the inquest and P.W.-8 Rajendra Kumar Singh is the Investigating Officer.
5. Mr. Mahesh Tiwari, learned Counsel appearing for the appellant, relying on the decision in the case of Sham Lal v. State of Haryana reported in : 1997CriLJ1927 submitted that in order to sustain the conviction for the offences under Section 304B of the Indian Penal Code, the primary requirement is that the prosecution has to establish the death of the deceased which was caused under an abnormal circumstances within seven years of marriage and 'soon before her death', she was subjected to cruelty or harassment by the appellant in connection with any demand of dowry but in the present case, the prosecution has totally failed to establish the said ingredients.
Elaborating his arguments, he submitted that in the present case, the ingredients with regard to the fact that the death of the deceased took place within seven years of her marriage and that the death was under abnormal circumstances, have not been disputed but the third most important ingredient that 'soon before her death', the deceased was subjected to cruelty or harassment in connection with demand of dowry has not been established. Therefore, legal presumption as envisaged under Section 113B of the Evidence Act cannot be drawn against the appellant that he committed the dowry death of the deceased.
6. In the aforesaid case of Sham Lal v. State of Haryana (Supra), the Supreme Court has held that for invoking the legal presumption under Section 113B of the Evidence Act, it is imperative to prove that 'soon before her death' the deceased was subjected to such cruelty or harassment and in absence of any such evidence, it is not permissible to take recourse to legal presumption envisaged under Section 113B of the Evidence Act. The rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband and then it would be the burden of the accused to rebut the presumption.
7. Keeping in mind the submission made on behalf of the appellant and the decision of the Supreme Court cited above, we have carefully examined the evidence adduced on behalf of the prosecution to establish the charges against the appellant.
8. Though the informant in his F.I.R. did allege that since he could not pay the assured amount of dowry of Rs. 5000/- (Five thousand) to the appellant due to poverty, therefore, the appellant stopped giving food to his sister, about which he came to know from the villagers and then he tried to make the appellant understand his position, but he did not listen and ultimately his sister was done to death by putting her to fire in the night of 2nd/3rd October, 1999 and her dead body was cremated hurriedly without informing him, but in his evidence in Court he (P.W.1) stated in his examination in chief that the appellant used to torture her sister and because of non-fulfillment of demand of dowry she was killed by the appellant, but in the cross-examination he admitted that the written report, which was typed one, was signed by him at the police station on being asked by the police and he specifically stated that he did not see himself any assault or torture on his sister, rather he came to know about the same from the villagers. But none of the villagers have come forward to support this statement of the informant, rather two villagers i.e. P.W., 6 Anil Bhushan Samodar and P.W.7 Sanat Kumar Mandal, who are witnesses on inquest, in their cross- examination have stated that the relation ship between wife (deceased) and husband (appellant) was cordial.
9. The most important witness is P.W. 2, Satya Devi, who is none-else than the mother of the deceased, but she was declared hostile and she has stated in her examination in chief that she did not know as to how her daughter died. In specific term in her cross-examination she has stated that her son in-law (appellant) never demanded any money. P.W.3, Deepak Dhibar, though he was declared hostile, but he has stated that the relation ship between wife and husband was cordial. P.W. 4 Basudeo Dhibar has stated in the same line.
10. From the evidence of the Doctor as well as from the postmortem report, it appear (sic) the (sic) died because of 100% burn injury.
11. From the evidence of the prosecution witnesses as has been discussed above, we find that not a single witness has stated that in fact, the appellant tortured or harassed his wife mentally or physically 'soon before her death' in connection with non-fulfillment of demand of dowry. In this situation the presumption envisaged under Section 113B of the Evidence Act cannot be drawn against the appellant that he committed the dowry death of his wife. There is no evidence on record even on the fact that the appellant (sic) to demand dowry or he used to torture his wife in that connection.
12. In this situation, we are unable to uphold the conviction and sentence passed by the learned trial Court against the appellant for the offences under Sections 304B, 498A of the Indian Penal Code and also under Section 3/4 of the Dowry Prohibition Act.
13. Consequently, this appeal is allowed and the conviction and sentence passed against the appellant by the trial Court are hereby set aside. The appellant, who is in custody, is directed to be released forthwith, if not wanted in any other case.