Judgment:
B.P. Ray, J.
1. Challenge here in this appeal is to the judgment of conviction and sentence passed in S. T. Case No. 31 of 1995/ 176 of 1994 in the file of learned Assistant Sessions Judge-cum-Addl. Civil Judge (S.D.), Balasore. Learned Assistant Sessions Judge in the impugned judgment and sentence passed, held the appellants guilty of the charge Under Sections 498-A/304/B. IPC both read with Section 34, IPC and sentenced each of them to undergo R. I. for 10 years and R. I. for 3 years and to pay a fine of Rs. 5000/- each and in default to undergo for six months, respectively on the aforesaid counts. Learned Asst. Sessions Judge has further ordered that the substantive sentences would run concurrently.
2. The prosecution case against the appellants is that one Manorama Panda, who happens to be the sister of the informant Pitambar Panda (P.W.1) was given in marriage to Sitikantha Panda in June 1991. At the time of marriage, the appellants made a demand of Rs. 10,000/- in cash and gold ornaments towards dowry, which was meted by the informant. But subsequent to the marriage they again demanded an Almirah and cash of Rs. 5,000/-, which the informant could not meet. After the marriage of the deceased with the appellant Sitikantha, the appellants tried to dispossess all the gold ornaments given to the deceased-Manorama to purchase a land, but the deceased did not agree to part with the same. For the said reason, they started torturing the deceased even though she was pregnant and thereafter they left her in her parental house. With much persuasion of the informant the matter was compromised and the deceased was left in the house of the appellants on 24-6-1992. After 10 days, the informant came to know that Manorama died in the house of the appellants. The informant suspecting a foul play for non-fulfillment of the dowry of the appellants, made a report to the Officer-in-charge, Oupada Police Station vide written report Ext. 1, pursuant to which, criminal case in question was registered against them by the police and investigation was taken up. After completion of the investigation, charge sheet was placed against the appellants alleging commission of Offences Under Sections 498-A/ 304-B/34, IPC to have been committed by them and the trial Court convicted and sentenced the appellants as stated above.
The appellants faced their trial being convicted Under Sections 498-A/304-B/34 I. P. C. taking a plea of denial and false implication in the trial. It also appears that they have taken a plea that the death of the deceased was due to diseased process. The trial Court in the conclusion of the trial basically relying on the evidence of the P. W. 1 the informant, who is the brother of the deceased, P. W. 2, the mediator to the marriage and also one. P. W. 3 Gopinath Panda another relation of the deceased repelling the defence plea, returned the judgment of conviction and the sentence as stated above.
3. Learned Counsel appearing for the appellants assails the impugned judgment and conviction and sentence, advancing a submission that when there is no credible materials on record to show that the death of the deceased was occurred due to any burn, bodily injuries or otherwise than the normal circumstances and also there is no demand for dowry, even though in this case there is ample material to show that the death of the deceased was within 7 years of her marriage with the appellant-Sitikantha, the impugned judgment and order of conviction and the sentence passed are unsustainable.
4. Controverting the aforesaid submission made, it is submitted by the learned Counsel for the State that in this case there are ample materials on record to show that the deceased was hale and hearty before her death and thereafter she was found dead in the matrimonial home. Soon before her death, she was subjected to torture by the appellants who happens to be her husband and relatives of her in-laws, for non-fulfillment of dowry of Almirah and cash of Rs. 5000/- as revealed from the evidence of P. Ws. 1 to 3, the judgment of conviction and the sentence recorded on such reliable evidence, in view of the presumption Under Section 113-B of the Indian Evidence Act, cannot be found fault with. So he submits that the appeal is devoid of any merit.
5. Before delving into the merit of the case, it would be appropriate to mention here that in a case of dowry death, though the prosecution is not required to prove the authorship of the death, in view of the presumption Under Section U3-B to establish a charge Under Section 304-B I. P. C. much can be presumed against the accused, but the prosecution to avail such presumption with regard to the authorship of the death must prove the following:
(i) that the death of married woman occurred within 7 years of her marriage.
(ii) that such death of the deceased was due to any burn, bodily injuries and other wise than the normal circumstances;
(iii) that soon before her death the deceased was subjected to cruelty in connection with the demand for dowry by the accused who happens to be her husband and the relations of her husband.
6. Coming to the evidence on record in this case, it is seen from the evidence adduced by P. Ws. 1 to 3 that the deceased got married in 1991 and she died in her matrimonial home on 1-7-1992. The evidence of witnesses is not disputed by the defence in any manner in the cross-examination made. So also the evidence of doctor and I. O. also categorically establishes that the death of deceased to have occurred on 1-7-1992. In such premises, there is no manner of doubt that first and foremost requirement in this case that the death of a married woman occurred within 7 years of her marriage has since been established by the prosecution. But so far as the death of the deceased, due to any burn or bodily injuries or otherwise than the normal circumstances is concerned which is the most important of ingredients in a case of dowry death, it is seen that in this case evidence of doctor is unable to throw any light with regard to the death of the deceased. The doctor P. W. 4 who conducted autopsy in his evidence deposes that though he conducted the post-mortem examination, but he was not in a position to say the exact cause of the death. He had kept viscera for chemical examination. The chemical examination of the viscera was done by the State Forensic Laboratory. The report of chemical examination reveals that, no common insecticidal alkaloidal and metallic poison could be detected in the viscera of the deceased. So, the chemical examination report is not in a position to throw any light with regard to the cause of death of the deceased. The post-mortem report also does not show the cause of the death. As it appears from the post-mortem report submitted by doctor, no bodily injury appears to have been found in the person of the deceased. But, the trial Court, as it appears in this case taking into consideration as the defence version that the deceased died of stomach trouble could not be proved held that the deceased died otherwise than the normal circumstances. Such an approach of the trial Court appears to be thoroughly misconceived. Needless to say that it is the bounden duty of the prosecution that in a case of this nature to prove that the death of the deceased due to any burn, bodly injuries or otherwise than the normal circumstances which includes also suicidal death. From the aforesaid, it goes without saying that the posecution in a case of this nature must rule out that the death of the, deceased was not natural. Death of a person by disease process has also been held not to be death otherwise than the normal circumstances in a case Under Section 304-B I. P. C. As it appears in this case none of the witnesses including the report of the chemical examination could throw any light that the death of the deceased was due to any burn or bodily injury or otherwise than the normal circumstances or not natural. In such premises, even if the defence version that the death of the deceased was due to any stomach trouble has not been proved, but the same cannot prove the case of the prosecution that the death of the deceased was due to any burn, bodily injury or otherwise than the normal circumstances.
7. When the prosecution has failed to prove the aforesaid ingredients, the impugned judgment of conviction recorded by the trial Court for a charge Under Section 304-B I. P. C. in spite of the presumption Under Section 113-B of the Indian Evidence Act with regard to the authenticity of charge, it can irresistibly be held that the conviction of the appellants for a charge, Under Section 304-B/34 I. P. C. by the trial Court is un-defensible and as such, should not have been held by the trial Court to have been proved.
8. So far as charge Under Section 498-A/34 I. P. C. is concerned, there is no manner of doubt that even if a charge Under Section 304-B I. P. C. fails, if there is evidence with regard to the cruelty meted to the deceased by her husband or in-laws in connection with the demand of dowry or otherwise the conviction can be recorded against the appellants for the said charge. In this case it is seen that P. Ws. 1 to 3 have deposed that the deceased was being tortured by the accused persons in connection with the non-fulfillment of dowry of Rs. 5000/- and an almirah. As it appears from the evidence of the aforesaid witnesses, P. Ws. I to 3 that the deceased stated before them that her in-laws members, were torturing her for non-fulfillment of demand of dowry. So also P. W. 1 says that he had seen the deceased who was being tortured in her in-laws house, but the said statement, of P. W. 1 the brother of the deceased appears to be an improvement and embellishment, inasmuch as he had not stated before the Police nor such fact find place in the F. I. R., Ext.1, lodged by him soon after the death of the deceased. Had the P. W. 1 seen the torture of his sister and ten days thereafter his sister died and there was also persistent and consistent demand for dowry, he would not have forgotten to mention such an important fact in the F. I. R., Ext. 1, so also before the police. In such circumstances even though the F. I. R. is not the be all and end all or an Encyclopedia of the prosecution case, but in the considered opinion of this Court omission of such important fact in the F. I. R. as well as before the police during his examination speaks volume about P. W. 1, informant seeing the torture of his deceased sister by the appellants in his presence. In view of the same, P.W. l's version of seeing the torture on the deceased by the appellants eight days before her death appears to b6 an improvement and embellishment and such cannot be relied upon. When the aforesaid evidence is not accepted to be trustworthy, the evidence i.e. left out in the case is that the so called version of the deceased before P. Ws. 1 to 3 in this case is hit by the rule of hearsay in as much as the same neither relates to cause of death nor the circumstances which resulted in the death of the deceased. Being hit by the rule hearsay, the same cannot be accepted as legal evidence on record. Reliance in this regard can be placed in a decision of the Hon'ble Court in the case of Gananath Pattanik v. State reported in 2002 (22) OCR S.C. 532, wherein, it has been held that if a statement which is otherwise covered by hearsay rules does not fall within the exception of Section 32, the same cannot be relied upon to record a finding of guilt of the appellant. Besides this the other incriminating material that has been brought to record by prosecution i.e. letters Exts. 2 and 3 stated to have been written by the deceased one to P. W. 1 and another to the wife of P. W. 2. On perusal of the letters Exts. 2 and 3 which has been proved by P. W. 1 to have been written by the deceased it reveals that the in-laws members of the deceased were pressing for fulfillment of demand of dowry and ornaments, but the same does not throw any light with regard to causing of any torture for nonfulfillment of dowry demand. Those two letters written by the deceased do not speak that the deceased was tortured either mentally or physically by the accused persons with regard to demand of dowry. The same simply reveals that they were making discussion with regard to non-fulfillment of their demand and for that the deceased was apprehending torture to her life and was also insisting P. W. I to fulfill such demand. In such premises, the trial Court also appears to have gone wrong in coming to a conclusion that in this case there was torture on the deceased for non-fulfillment of demand of dowry.
9. Hence, on reappraisal of the evidence on record in the considered opinion of this Court there being no clear, cogent and credible evidence on record with regard to death of the deceased by any burn or bodily injury otherwise than the normal circumstances and also the deceased was subjected to torture by the appellants for non-fulfillment of their demands of dowry and much less being the evidence that any torture had any live link to the death of the deceased. In such premises, the judgment of conviction recorded by the trial Court in this case appears to be indefensible and as such liable to be set aside.
10. I therefore, set aside the judgment of conviction and sentence against the appellants. But, here in this case two of the appellants, i.e. appellant Nos. 1 and 3, namely, Khetramohan Panda and Sitikantha Panda respectively have died and they have not been substituted by any of their legal representatives to continue the appeal on their behalf. Since this Court has already held that there is no credible evidence to withstand the charge in this case, they also need to be extended the benefit of the same. Accordingly, the impugned order of conviction and sentence recorded against all the appellants including the deceased appellants are set aside and they are held not guilty of the charges under Section 304-B, 498-A/34 I. P. C. and consequently acquitted them of the said charges.
The Criminal appeal is accordingly allowed.