Judgment:
D.P. Singh, J.
1. This appeal has been preferred by the appellants against their conviction for the offence under Section 498A of the Indian Penal Code as each of them has been sentenced to serve rigorous imprisonment for three years while appellant Nos. 1, 4, 5 and 6 stand further convicted for the offence under Section 304(B) of the Indian Penal Code acquitting appellant Nos. 2 and 3, and sentenced to serve rigorous imprisonment for seven years each, by the Additional Sessions Judge, Bokaro in Sessions Trail No. 83 of 1995. However, both the sentences were directed to run concurrently.
2. Factual backgrounds are as follows:
Appellant No. 1 Ratan Mahato was married with Kumbha Devi, sister of informant, Mangal Chandra Gorain in the year 1990 with usual Hindu customs. According to the informant, after the marriage for nearly four years, they lived peacefully. However, since last one year, all the convicts were pressing Kumbha Devi for television and cash. Further alleged that Kumbha Devi was subjected to ill treatment because of non-fulfillmenl of above mentioned demands. Further alleged in the month of March just before the occurrence, a Panchayati was held in the house of convict Ratan Mahato at village-Chaufand in which Panches decided that Rs. 15,00/- be paid to Rantan Mahato. After this, the sister of the informant went to live in her matrimonial house, however, convicts persisted on demanding television as before.
3. As suited by the informant. (P.W.8), few days earlier of the occurrence, Bhongu Gorain, uncle of the informant has gone to meet the deceased, when he was not allowed and demand of television was reiterated. According to the informant, on 5.5.1995 in the afternoon, P.W.3 Bindeshwar Mahato came and informed him that the appellants have killed her sister by burn in their house. The informant rushed to village Chaufand along with his uncle and brother to find Kumbha Devi lying in serious condition due to burn injuries. He could not get any else as to what has happened from the appellants but the co-villagers of the appellants informed him that Kumbha Devi was burnt by the appellants in the noon.
4. The informant reported the matter to Hurla Police Station in the evening and his statement was recorded, on the basis of which Hurla Police Station Case No. 49 of 1994 dated 5.5.1994 under Sections 304B and 498A of the Indian Penal Code was registered against all the accused. The police sent the dead body of the deceased for postmortem after preparing inquest report and finally submitted charge sheet against all of them. The trial of the accused was committed to the court of Sessions where charges were framed against all of them on 21.9.1995. The appellants pleaded not guilty and claimed false implication. The trial court after examining the witnesses, both prosecution and defence, found and held the appellants guilty under Section 498A of the Indian Penal Code, however, appellant Ratan Mahato, his mother, Aunt, grandmother were further found and held guilty under Section 304B of the Indian Penal Code and sentenced as stated above.
5. The present appeal has been preferred on the grounds that the learned trial court failed to consider the defence taken by the appellants. It is further asserted that the offence under Section 304B of the Indian Penal Code Could not be made out as the prosecution has failed to prove that dowry demands were made just before or in near proximity of the alleged burning of deceased Kumbha Devi. This memo of appeal further asserts that the prosecution witnesses, P.W.1, P.W.2 and P.W. 4 have been declared hostile, as they did not support the prosecution story. It is further asserted that P.W. 5 and P.W. 6 have further not supported the prosecution version that Kumbha Devi was killed resultant to non-fulfillment of dowry demands because no Panchayati has been proved by the witnesses. It is further asserted that Bindeshwar Mahato, who informed the informant and neighbhours of the appellants, have not supported the prosecution version. According to this memo of appeal, appellant Bhagirath Mahato and Bhukar Mahato have been able to prove the presence at the time of alleged occurrence at their working place and alibi should have been accepted. This memo of appeal further suggested that the death of Kumbha Devi might have occurred due to accidental burn while cooking food. It is also asserted that the appellants were not charged under Section 498A of the Indian Penal Code nor explained the charges and evidence specifically while being examined under Section 313 of the Code of Criminal Procedure. Therefore, the conviction of the appellants be set aside and the appeal deserves to be allowed.
6. The facts admitted on record are that Kumbha Devi was married with appellant Ratan Mahato about four years before her death. It is also undisputed fact that she died due to burn injuries in the noon of 5.5.1994. According to the informant, prior to her unnatural death, the appellants were demanding Rs. 15,00/- in cash and one television. It is also asserted that though Rs. 15,00/- was paid, television could not be provided for which the appellants persisted and ultimately caused death of Kumbha Devi. The other appellants except appellant No. 1 are in-laws out of which appellant No. 4 is grandmother-in-law, appellant No. 5 is the mother-in-law, appellant No. 6 is aunt-in-law. The remaining two appellants Nos. 2 and 3 are the father-in-law and uncle-in-law. There is no eyewitness of the occurrence except P.W.3, Bindeshwar Mahato, who have said to have informed the informant regarding the incident. Other witnesses of village Chaufand, P.W.1, Lalit Mahato, P.W. 2 Gunjari Devi, P.W. 5 Suresh Chandra Mahato have become hostile and denied earlier statements. According to P.W. 5, he has signed over the inquest report prepared by police as directed by village Chowkidar in the police station. He further asserted that he has signed over a plain paper and there was no dead body. P.W. 1 has claimed ignorance about the death of the deceased. He has admitted in cross-examination by the court that he signed over the inquest report. P.W. 2 staled to be hearsay witness of the death of Kumbha Devi due to burn injuries. P.W.3 Bindeshwar Mahato further admitted in chief that he cannot say how Kumbha Devi received burn injuries. He has signed over the seizure list of some burnt articles Ext. 1/2. He denied his earlier statement before the police. He has admitted in para-8 that he informed Mangal Chandra Gorain regarding the incident, but denied any ill treatment to the deceased by the appellants. These hostile witnesses are, therefore, not worth reliance.
7. P.W. 7 is the doctor, who conducted the postmortem examination on the dead body of the deceased on 6.5.1994 to find extensive burn of 90% over the body without any mark of violence. P.W. 9 Ram Pukar Singh, is the Investigating Officer. He has recorded the statement of P.W. 8, the informant in the night of 5.5.1994. He found the dead body lying on a cot in a room, totally brunt and prepared the inquest report. He examined P.W.1 and P.W. 5 in the morning and got their signatures on the inquest report. According to him. P.W. 1, P.W.2, P.W. 3 and P.W, 6 were examined by him, who have supported the prosecution story. This witness has stated in para-9 that P.W. 1 has claimed to have seen the deceased burning on the room where two of the appellants were present. According to him, they have also admitted that there was some dispute for some days regarding television and cash for which a Panchayati was held. This witness has asserted further in cross-examination that demand of Rs. 15,00/- in cash was consistently brought before him by the prosecution witnesses. He has been cross-examined at length, in which he has admitted that he did not seize the dead body in the night of 5.5.1994. According to this witness, he could not find any smell of kerosene oil at the place of occurrence. He further supported the alibi of appellants Bhagirath Mahato and Bhukar Mahato regarding their duties on 5.5.1994 at their respective place of work.
8. As against this, P.W.4 Nilkantha Gorain, P.W. 6 Prakash Chandra Gorain and P.W. 8 Mangal Chandra Gorain are supporting the prosecution case. P.W. 4 has asserted that for dispute between the family of the deceased and the appellants, a Panchayati was held in which it has been decided that Rs. 15,00/- will be paid by the brother of the deceased to appellant Ratan Mahato. However, he has denied other allegations. P.W. 6 Prakash Chandra Gorain has fully supported the prosecution case and the Panchayati. He is the brother-in-law of the informant. Much cross-examination has been made on the point that whether he was Prakash Chandra or Prakash Kumar. This witness has asserted in para-29 that Rs. 15,00/- was paid by P.W. 8 in his presence. P.W. 8 Mangal Chandra Gorain Supported his version before the court. He has been cross-examined at length, in which he admitted that a Panchayati was held in the month of Chait of 1994 and this occurrence has occurred in the month of Baishak immediately after the Panchayati. He has further admitted in para-32 that Panchayat decided that Rs. 15,00/- be paid by him to appellant Ratan Mahato to keep the deceased after which he has paid that amount. He further admitted in para-34 that appellants Bhagirath Mahato and Bhukar Mahato were employed in B.S.L. The informant has denied the suggestion that Kumbha Devi got burnt while she was cooking accidentally and died.
9. The defence has examined four witnesses to show that on 5.5.1994, appellants Bhagirath Mahato and Bhukar Mahato were on duty in the morning shift who went out at 12.55 hours. They have with stood test in cross-examination. I do not find any reason to disbelieve why the independent witnesses will come to depose falsely if the appellant Nos. 2 and 3 were not present on duty in the morning shift up to 12.55 hours.
10. In the facts of this case, there is no eyewitness that Kumbha Devi was actually burnt by the appellants in the manner alleged, appellant Nos. 2 and 3 have shown their presence at before 12.45 hours on duty at their place of work in B.S.L. I have already discussed the materials available in the case records regarding their presence in the morning shift on 5.5.1994 at their place on duty. However, their conviction under Section 498A of the Indian Penal Code cannot be sustained because of the fact that demand of dowry could not be proved by any corroborative evidence. Witnesses so far asserted that Rs. 15,00/- has been paid to appellant Ratan Mahato only and therefore, their conviction under Section 498A of the Indian Penal Code cannot be sustained.
11. So far as conviction of appellants under Section 304B of the Indian Penal Code is concerned, witness Nos. 6 and 8 are not eyewitness of the occurrence. The demand of dowry on which Rs. 15,00/- has been paid just one month prior to the incident has been proved, but there is no positive evidence that on 5.5.1994 actually Kumbha Devi was put on fire by these appellants i.e. Ratan Mahato, his mother, aunt and grandmother. In absence of any positive evidence with regard to burning of the deceased, it would not be safe to rely upon the hearsay witnesses that Kumbha Devi was burnt to death by these appellants. Furthermore, if the appellants were waiting for last four years to have got the demands satisfied, no compelling circumstance is brought on record to prove that they committed the offence on 5.5.1994 specifically when Rs. 15,00/-has already been given to appellant Ratan Mahato just one month prior to the occurrence. In such view of the facts, presumption under Section 113B of the Indian Evidence Act cannot be drawn in favour of the prosecution. I, therefore, find and hold that the conviction of appellant Nos. 1, 4, 5 and 6 cannot be sustained under Section 304(B) of the Indian Penal Code.
12. So far as demand of dowry is Concerned, the evidence on record do not support the involvement of appellant Nos. 4, 5 and 6. In this context, the only evidence available on record is that Rs. 15,00/- was paid to appellant Ratan Mahato after Panchayati. Appellant Nos. 4, 5 and 6 are female members. Therefore, I find and hold that the appellant Nos. 4, 5 and 6 not guilty of the charge under Section 498A of the Indian Penal Code. However, the evidence on , record supports the prosecution case regarding demand of dowry of Rs. 15,00/- paid to appellant Ratan Mahato after Panchayati just one month prior of death of his wife. In such circumstances, I find and hold that appellant Ratan Mahato is guilty of the offence under Section 498A of the Indian Penal Code. Accordingly, all other appellants, except appellant Ratan Mahato having been found not guilty, are acquitted from the charges levelled against them and discharged from the liabilities of their bail bonds. Appellant No. 1 Ratan Mahato being found and held guilty under Section 498A of the Indian Penal Code is appropriately sentenced to serve rigorous imprisonment for three years only. In this manner, the appeal stands disposed of with confirmation of sentence against appellant Nos. 1 Ratan Mahato under Section 498A of the Indian Penal Code only. Let a copy of this order be remitted back to the lower court along with lower court records for information and needful.