Full Judgment
2. Munna Kumar @ Mantu, Son of Late Ajay Kumar Singh.
3. Vimla Devi, W/o- Late Ajay Kumar Singh.
4. Both residents of Village-Balwapar, P.O. & P.S.-Konch, District- Gaya. Accused/Fespondents. -----------------”
13. 01.2012 I.A. No.1269 of 2011 has been filed in this appeal against acquittal by the informant to condone the delay in filing the appeal. For the reasons stated in I.A. No.1269 of 2011, the delay is condoned. From perusal of the order-sheets of this case, it appears that this appeal has already been admitted for hearing and notices had been issued to the accused persons who have since appeared. In stead of prolonging the matter, we have heard both sides on merits as lower court records have already been received. The informant is the brother of the deceased. An F.I.R. was lodged for an offence under Section-304 (B) /34 of the Indian Penal Code, inter alia, alleging that the sister of the informant was married to the accused no.1. Accused no.2 is the mother-in-law. The father-in-law has died in course of hearing. Soon after one year of marriage there being demand of dowry and consequent torture the lady was killed and no information was -2- given. Upon investigation chargesheet was filed and upon the case being committed to the Court of Sessions charges were framed under Section-304 (B) /34 of the Indian Penal Code. The accused persons pleaded that the deceased was suffering from acute diarrhoea and was medically treated. She was referred to hospital in view of her critical state but she could not be saved. She thereafter duly cremated. The F.I.R. is lodged subsequently. In order to establish the charge the prosecution has examined 8 witnesses. None of these witnesses have either firmly proved the F.I.R. itself nor have they substantiated the allegation of demand of dowry or torture. To the contrary, P.W.7, who is the doctor, who treated the lady, has clearly deposed that he had examined the deceased and found her to be in critical stage because of diarrhoea and referred her to hospital for immediate attention. In our view, firstly, this being the prosecution evidence itself, the onus, that is, caste in such cases in view of Section-113 of the Evidence Act upon which the defence is duly discharged. It was now for the prosecution to establish the case of homicidal death. There is no evidence in this regard. The Investigating Officer has also not been examined. On behalf of the informant, it is submitted that the informant has not been examined as a prosecution witness in the present case. We have perused the records. Informant was duly noticed but he alleges that notice was not served on him. In our -3- view, this shows that the informant was not taking any interest in the prosecution while the trial was going on. He stay away and only after Court passed the order of acquittal in absence of evidence justifying conviction, a belated appeal against acquittal has been filed. Considering the facts and circumstances of the case, in our view, the leisure of litigation cannot be permitted in such a manner. Upon evidence being considered, the Trial Court finding total lack of material to justify the allegation of demand of dowry, torture or a homicidal death passed the order of acquittal. We are unable to interfere in the order of acquittal. This appeal merits no consideration and is dismissed as such. (Navaniti Prasad Singh, J.) Trivedi/ (Ashwani Kumar Singh, J.)