Narendra Nath Tiwari, J.
1. The appellant was put on trial for the charges under Section 304-B/34 of the Indian Penal Code and has been found guilty of the charge under Section 304-B and has been convicted and sentenced to undergo rigorous imprisonment for seven years by learned First Additional Sessions Judge, Hazaribagh in Sessions Trial No. 127 of 1998.
2. The prosecution case was that Charki Devi, the informant's daughter was married with accused Rajendra Mahto six years ago; But she was being subjected to harassment, cruelty and torture for not fulfilling the demand of scooter and cash of Rs. 25,000/- as dowry: On 16.5.1997, at about 10 O'Clock, sister-in-law of the informant, namely, Gango Devi had gone for extending invitation and in her presence the appellant had assaulted the informant's daughter till she became unconscious. The appellant did not provided her any medical treatment and she ultimately succumbed to her injuries.
3. In order to prove the charges against the accused-appellant, in all, 12 witnesses were examined on behalf of the prosecution. Two defence witnesses were also examined. Out of the prosecution witnesses, PW 3 is said to be the eye-witness and PW 8 is the doctor who held the autopsy on the dead body of the deceased on 17.5.1997 as another material witness.
4. PW 1, the informant-father of the deceased, based his statement on the basis of what was narrated by her sister-in-law Gango Devi. PW 2 is the cousin (brother) of the deceased and is also not the witness of the occurrence. PW 3 is said to be the eyewitness. In her deposition she has stated that she had gone to give an invitation to one Pyarelal in Village-Chata and she had seen the appellant assaulting the deceased. In her cross-examination she has admitted that she had not seen as to what was the weapon used for assaulting the deceased. She has stated that when she arrived she saw the appellant assaulting the deceased. PW 4 is the son of the informant. PW 5 is the daughter of the informant. They are not the witnesses of the occurrence. PW 6 is a formal witness who has proved the signature of the Officer-in-charge on the First Information Report (Exhibit-2) PW 7 is the wife of the informant. PW 9 is the sister-in-law of Gango Devi. PW 10 is also one of the relations and a resident of different village. PW 11 is a hearsay witness. PW 12 is the Investigating Officer who has deposed that he had submitted charge-sheet without any report of chemical examination of viscera. He has further stated that there were 40-50 houses in the village, but no body appeared to give statement before him. The defence examined two witnesses. DW 1 has stated that on the day of the occurrence she had been to the village, but she had not seen Gango Devi (PW 2) in the village.
5. Learned trial Court relied upon the evidence of PWs 2, 4, 5, 7, 9 and 10 and held that the prosecution's case has been proved and corroborated. However, it has been noticed by the Court below that except Gango Devi (PW 2), no other witness deposed on the point of assault. The Court below, however, came to the finding that the eye-witness Gango Devi had seen the appellant assaulting the deceased and causing injury as a result of which he became unconscious and that she was not given any medical treatment. Learned Court below further found that the marriage of the deceased was solemnized six years ago and taking the aid of the provision of Section 304-B of the Indian Penal Code read with Section 113-B of the Evidence Act, came to the conclusion that the deceased died of bodily injuries caused to her on the alleged date of occurrence by the appellant. Learned Court below further recorded his finding that no positive evidence was found against another accused Pyare Lal, Mahto. Learned Court below, thus, convicted the appellant under Section 304-B of the Indian Penal Code and acquitted said Pyare Lal Mahto of the said charge.
6. Mr. Nawal Kishore Prasad, learned Counsel appearing on behalf of the appellant submitted that the impugned conviction and sentence is vitiated on the account of the same being not based on any legal evidence. It has been submitted that there was no proper examination of the appellant under Section 313 of the Code of Criminal Procedure and that there is no cogent evidence worth the name to prove the offence against the appellant. All the witnesses are interested witnesses being the relatives of the informant except the doctor (PW 8) and the Investigating Officer (PW 12). Even those interested witnesses have not corroborated the prosecution version and there are contradictory versions of the witnesses regarding the manner of assault and the occurrence. Learned Counsel submitted that the material on which the conviction has been based were not brought in course of the examination of the appellant under Section 313 of the Code of Criminal Procedure and he was not given proper opportunity to explain. He further submitted that the cause of death cannot be established and the doctor (PW 8) in his cross-examination, fairly stated that the injuries which were found on the person of the deceased can be had by fall.
7. On the other hand, learned APP supported the impugned judgment of conviction and order of sentence and submitted that there are materials on record to show, that the appellant was married six years ago and due to assault by the appellant, the deceased sustained bodily injuries and subsequently succumbed to death and as such the impugned conviction and sentence is sound and legal.
8. After hearing the parties and perusing the evidences and other materials on record, I find that except PW 3, the-other witnesses are all hearsay witnesses and they have not witnessed the occurrence. The said witnesses are all close relatives and they have given almost identical account of the story. The PW 8 is the doctor. In his evidence, he has clearly stated that he cannot say the cause of death and that the injuries found on the body of the deceased may be caused by fall. In his opinion, the injuries were not sufficient to cause death in ordinary course of nature.' The Investigating Officer (PW 12) has stated that there were 40-50 houses in the village, but none of the persons gave any statement against the appellant. He also stated that for ascertaining the cause of death of the deceased, the viscera was preserved and sent for chemical examination, but before the receipt of the report, he submitted the charge-sheet against the appellant as directed by the Superintendent of Police. On perusal of the statement under Section 313 of the Code of Criminal Procedure, I find that though the Court below has convicted the appellant for assaulting the deceased, but no question was put to the appellant regarding the manner of assault or weapon used, though it has been concluded by the learned trial Court that the deceased was assaulted by hard and blunt substance. The appellant was also not asked as to whether the deceased had become unconscious due to the said assault and that she died for not providing medical treatment.
9. The evidence of Gango Devi (PW 2) is wholly vague, she did not see the weapon used for assault on the deceased. On meticulous scrutiny and consideration of the evidences and materials on record, I could not find cogent and legal evidences to establish the charge against the appellant, though there is a legal presumption attached to Section 304-B of the Indian Penal Code by the Dowry Prohibition (Amendment) Act, 1986 and Section 113-B of the Evidence Act, in the instant case the presumption stood rebutted by the evidence appearing on record. Neither the manner of assault nor the weapon used nor the cruelty or harassment for demand of dowry has been legally proved. In view of the above discussion, I find no valid ground for upholding the conviction of the appellant.
10. In the result this appeal is allowed. The conviction and sentence against the appellant is set aside. The appellant, who is on bail, is discharged from the liability of the bail bond.