Tuesday, August 13, 2013

marriage '87, wife dies '93, lower court convicts '01, PatnaHC acquits all '13 !! 20 years to freedom. All acquitted even when wife dead !! sadly the man's father dies during pendancy of the appeal , so never knows his son's a free man !!!!

marriage '87, wife dies '93, lower court convicts '01, PatnaHC acquits all '13 !! 20 years to freedom. All acquitted even when wife dead !! sadly the man's father dies during pendancy of the appeal , so never knows his son's a free man !!!! 


Learning
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* marriage in '87
* wife dies in '93
* wife's body never recovered
* never known IF wife died due to natural causes or un unatural causes
* wife's brother files police complaint 8 days later
* allegations and counter allegations
* some witnesses turn hostile
* lower court convicts, husband, father, mother us 304 ... many years imprisonment etc
* HC appreciates evidence and frees them !!
* long story , long time to freedom
* husband's father dies before the acquittal , so does NOT know that son is a free man !!



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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM PATNA HC WEB SITE 
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Patna High Court CR. APP (SJ) No.183 of 2001 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.183 of 2001

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1. Yogendra Jha @ Jago Jha Son of late Bhagirath Jha
2. Sanjay Jha @ Sanjay Kumar Jha son of late Yogendra Jha
3. Sunita Devi wife of Yogendra Jha
All resident of village Salempur Police station Falka Dist. Katihar
**** **** Appellant/s

Versus

State Of Bihar
**** **** Respondent/s

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Appearance:
For the Appellant/s : Mr. Rajeev Roy, Advocate 
Mr. Rajendra Pd. Sah, Advocate 
For the State : Mr. Sujit Kumar Singh, A.P.P. 

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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

ORAL JUDGMENT

Date: 02-07-2013

1. This criminal appeal has been preferred against the judgment of conviction dated 19.6.2001 and order of sentence dated 20.6.2001 passed by learned Sessions Judge, Katihar in Sessions case no. 95/1997 by which and whereunder he convicted the appellants for the offences punishable under sections 304B and 201 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years under section 304B of the IPC and rigorous imprisonment for three years under section 201 of the IPC. However, all the sentences were ordered to run concurrently.

2. In brief, the prosecution case, is that on 14.12.1993 at about 7 p.m., P.W. 10 went to Pothia police station and gave his fardbeyan to officer-in-charge of Pothia police station to this effect that marriage of his sister Navina Devi aged about 22 years was solemnized with appellant no.2, Sanjay Jha on 22.4.1987 but even after taking dowry in marriage his brother-in-law Sanjay Jha and his parents Yogendra Jha @ Jago Jha and Sunita Devi used to demand Rs 80,000/- in dowry. His sister started residing at her matrimonial home after her Duragman and whenever he used to visit the house of inlaws of his sister, in-laws of his sister used to demand the above stated amount in dowry and also used to give threatening to kill his sister, if the aforesaid amount is not given to them. He expressed his inability to give the aforesaid amount to the parents of the appellant Sanjay Jha but when the appellants intended to purchase Tata 407 bearing registration no. BR 39-1969, they again demanded the aforesaid amount and after the aforesaid demand, he asked his father to pay the aforesaid amount. He further stated that his father gave Rs 50,000/- to Sanjay Jha as well as Yogendra Jha at Alamnagar after selling land and sesam trees. He further stated that at the time of Dipawali, when he went to Salempur to meet his sister, his sister started weeping and telling that her in-laws were giving threatening to kill her. He asked in-laws of his sister to send her to her Maike but Sanjay Jha and his father refused to send his sister. On 19.10.1993, while he intended to return to his home, his sister caught his feet and started weeping and telling that her in-laws would kill her. He, any how, pacified his sister and came to his house. He further stated that on 11.12.1993 Jaichandra Jha ( P.W.12) came to his village and disclosed that his sister Navina Devi was killed by her husband as well as her in-laws and her dead body had been disposed of. Having got the aforesaid information, he came to Salempur where villagers disclosed that his sister was murdered on 6.12.1993. He enquired from in-laws of his sister but they did not give any satisfactory answer. In-laws of his sister had not given any information regarding death of Navina Devi. He claimed that his sister was killed by her husband and in-laws on account of non-fulfillment of illegal demand of dowry and her dead body was disposed of by them.

3. On the basis of the aforesaid fardbeyan, Pothia P.S. case no.161/1993 for the offences punishable under sections 302, 201/34 of the Indian Penal Code and 3/ 4 of the Dowry Prohibition Act was registered and formal FIR was drawn up against the appellants for the above stated sections. The matter was investigated by the police and after investigation, police submitted charge sheet for the offences under sections 302 and 201/34 of the Indian Penal Code. On being receipt of the charge sheet, learned Chief Judicial Magistrate took cognizance of the offences under sections 302, 201/34 of the Indian Penal Code and 3/ 4 of the Dowry Prohibition Act and later on, the case was committed to the court of sessions, in usual way.

4. All the three appellants were put on trial and accordingly, they were charged for the offences punishable under sections 304B and 201 of the IPC. The appellants denied the charges and claimed to be tried. 

5. In course of trial, prosecution examined, altogether, fifteen prosecution witnesses and also got exhibited signature of P.W.10 on fardbeyan as exhibit 1, Fardbeyan of P.W.10 as exhibit 2, endorsement on fardbeyan as exhibit 3 and formal FIR as exhibit 4. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence.

6. The defence also proved signatures of P.W.10 on two affidavits as exhibit A series except the aforesaid documentary evidence, the appellants did not adduce any oral evidence but from perusal of the statements recorded under section 313 of the Cr.P.C as well as trends of cross-examination of the prosecution witnesses, it is obvious that defence of the appellants was total denial of the prosecution story and further stand of the appellants was that the deceased died of diarrhoea.

7. The learned trial court, having scrutinized the evidences as well as circumstances of the case, passed the impunged judgment of conviction and order of sentence in the manner as stated above.

8. During the pendency of the appeal, appellant no.1, Yogendra Jha died and accordingly, his appeal was abated vide order dated 14.3.2013.

9. Learned counsel appearing for the rest appellants challenged the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove all ingredients of section 304B of the IPC. He submitted that dead body of the deceased was not recovered and, therefore, the prosecution could not succeed to prove that the deceased died in other than normal circumstance and furthermore, the prosecution failed to prove that the deceased was subjected to cruelty and harassment in connection with demand of dowry soon before her death. He further submitted that the prosecution witnesses could not succeed to establish the demand of dowry nor succeeded to prove this fact that the deceased was put under cruelty and harassment by the appellants. He further submitted that the prosecution witnesses made contradictory statements and developed their statements in course of trial. So, no reliance could have safely been placed upon testimonies of the prosecution witnesses and furthermore, P.W.2, being brother of the deceased, admitted in his examination-in-chief that he got information about incident and after that he went to village Salmepur but he did not lodge any case and, therefore, the aforesaid admission of P.W.2 goes to show that just after death of the deceased, in-laws of the deceased gave information to natal people of the deceased but in spite of that the informant lodged this case on 14.12.1993 i.e. after eight days of death of the deceased and no explanation regarding the aforesaid delay was given by P.W.10 either in his fardbeyan or in his deposition. He further submitted that, as a matter of fact, the natal people of the deceased participated in her cremation and later on, an altercation took place between the parties on the point of return of ornaments of the deceased and after that P.W.10 lodged this false case to put pressure upon the appellants. He further submitted that after institution of the present case, when P.W.10 realized his fault, he sworn two affidavits disclosing real fact and in course of trial, he admitted his signatures on the aforesaid two affidavits but again he turned hostile to the appellants when he was examined in course of trial. He further submitted that the learned trial court based its findings on surmises and conjectures and failed to consider this fact that the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts.

10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence arguing that almost all the material prosecution witnesses supported the prosecution story and admittedly, the deceased died within four walls of her matrimonial home and furthermore, the prosecution witnesses have, specifically, stated that there was demand of dowry and the appellants used to torture the deceased due to non-fulfillment of above stated demand of dowry. He further submitted that, no doubt, dead body of the deceased could not be traced out but burden was on the appellants to prove this fact that the deceased died of her natural death.

11. As I have already stated that, altogether, 15 prosecution witnesses were examined by the prosecution. Out of them, P.W. 11, Shankar Jha, P.W.12, Jaichandra Jha and P.W.13, Nandkishore Jha have been declared hostile and they have denied to have made any statement before police.

12. P.W.11, Shankar Jha stated that the deceased died of diarrhoea and having got the aforesaid information, he went to the house of the deceased where he found the deceased in unconscious stage. The prosecution drew attention of this witness towards his previous statement said to be recorded by the police but he denied to have made statement before police.

13. P.W.15, Gosai Thakur, Investigating officer of this case, stated at para 7 of his cross-examination that P.W.11 had made statement before him that the deceased was burnt to death.

14. Similarly, P.W.12, Jaichandra Jha stated that he had not gone to the house of the appellants to give information about the death of the deceased but P.W.15 stated at para 8 of his deposition that P.W.12 had made statement before him that he had gone to the house of P.W.10 to give information regarding death of the deceased. 15. P.W.13, Nandkishore Jha stated that marriage of the deceased had taken place with the appellant Sanjay Jha but he does not know about dowry but P.W.15 stated that P.W.13 had made statement before him that P.W.10 had disclosed that the appellants were demanding cash in dowry.

16. On careful perusal of depositions of the aforesaid witnesses, it is apparent that in course of investigation, they had supported the prosecution story but in trial, they retreated from their previous statements and, therefore, the learned trial court rightly denied to have relied upon the depositions of P.W.11, P.W. 12 and P.W. 13.

17. P.W.1 Urmila Devi is the mother of the deceased. This witness stated that marriage of Navina Devi was solemnized in the year 1987 and after marriage Navina Devi used to come at her matrimonial home. She further stated that the appellants used to torture her daughter for payment of cash. She further stated that for the first time, demand of Rs 10,000/- was made which was paid but again, demand of Rs 50,000/- was made and the aforesaid demand was also fulfilled by selling the land but in spite of that her daughter was murdered by the appellants. She further stated that P.W 12, Jaichandra Jha had informed them that the deceased died of diarrhoea and having got the aforesaid information she sent her son Deokant Jha ( P.W.10) to ascertain the real fact and after making enquiry her son Deokant Jha told that Navina Devi was murdered by the appellants. She further stated that the appellants had sent information regarding death of Navina Devi to her.

18. P.W. 2, Ajay Kant Jha is brother of the deceased. This witness stated that one Seman Thakur gave information to him to this effect that condition of Yogendra Jha was serious while he was at Patna. He further stated that he along with one Sujit Kumar went to the village of the appellants. He further stated that the aforesaid Seman Thakur had tutored the villagers that Navina Devi was died of diarrhoea. This witness further stated that he returned to his home on the next day but he did not enquire about death of the deceased.

19. P.W.3, Jatashankar Jha, P.W.4, Ganesh Jha, P.W.5 , Haldhar Jha, P.W.6, Bibhuti Jha and P.W.7 Fuleshwar Jha are covillagers of P.W. 10, Deokant Jha. These witnesses stated that marriage of the deceased was solemnized with the appellant Sanjay Jha in the year 1987 and in 1993, they came to know that the deceased was murdered by the appellants for non-fulfillment of illegal dowry demand.

20. P.W.3 expressed his inability to name the person who informed him about the alleged occurrence but claimed that in his presence, dowry was given. He also stated that demand was made after two or three years of marriage and Rs 50,000/- was given in dowry. P.W.4, Ganesh Jha stated that at the time of marriage, demand of dowry was made and some part of payment was made but again demand was made after marriage and Rs 50,000/- was given. He claimed that Rs 50,000/- was given in his presence. He further stated that the aforesaid Rs 50,000/- was given after selling land which was sold between 1992-93.

21. P.W.5, Haldhar Jha stated that after marriage, the appellant Sanjay Jha and his father Yogendra Jha used to put pressure for dowry. He also claimed that Rs 50,000/- was given in his presence. He admitted that at the time of marriage he had talked with the deceased Navina Devi, her father and the appellants and after marriage he never talked with the above stated persons. He could not disclose the month and date when the aforesaid amount was paid. 

22. P.W.6, Bibhuti Jha stated that in his presence Rs 50,000/- was given but in his cross-examination, he stated that the aforesaid Rs 50,000/- was given in the year 1990-91.

23. P.W. 7, Fuleshwar Jha also supported this fact that after Durgman Rs 50,000/- was given to the appellants. He also stated that the aforesaid amount was given in the year 1991-92 and claimed that the aforesaid amount was paid in his presence. He admitted that after marriage he never went to the house of the appellant Sanjay Jha and he visited the house of the appellant Sanjay Jha after death of the deceased Navina Devi. He also admitted that he got information about death of Navina Devi after two days of her death and having got the aforesaid information, he went to the village of the appellants but did not give any information to Pothia police.

24. On careful scrutiny of statements of the aforesaid prosecution witnesses, it is apparent that almost all the aforesaid prosecution witnesses claimed that Rs 50,000/- was given to appellants Sanjay Jha and his father Yogendra Jha in their presence.

25. P.W. 8, Sudama Devi is aunt of the deceased Navina Devi. She stated that Rs 50,000/- was given to appellants Sanjay Jha and Yogendra Jha by Sobhakant Jha in her presence. She also stated that the appellants used to give threatening to the deceased. She further stated that the deceased Navina Devi had written letters and the aforesaid letters were shown to the police.

26. P.W. 9 is also a co-villager of P.W 10, Deokant Jha. This witness also stated that appellant Sanjay Jha and his father came to Alamnagar to take dues amount of Rs 50,000/- and the aforesaid amount was paid to appellant Sanjay Jha and his father but this witness could not disclose the date on which the aforesaid payment was made. This witness further stated that father of the deceased had called him to witness to the aforesaid transaction.

27. P.W.10, Deokant Jha stated that marriage of Navina Devi was solemnized with appellant Sanjay Jha on 22.4.1987 and his sister went to her sasural in the year 1988 after her Duragman. He further stated that after two months, his sister wrote letter mentioning this fact that appellants Sanjay Jha, Yogendra Jha and Sunita Devi were harassing her for Rs 80,000/- which had not been paid to them at the time of marriage. He further stated that Rs 50,000/- was paid to the appellants at the time of purchase of a vehicle. He further stated that again, Yogendra Jha (since deceased) wrote letter to him for remaining amount of Rs 30,000/- and also gave threatening that if remaining amount is not paid, his sister would be killed. He further stated that in the year 1993, he went to the house of the appellants where his sister told that she would be killed, if remaining amount is not paid to the appellants. He expressed his inability before the appellants but the appellants threatened to kill the deceased. He further stated that he asked the appellants to send his sister to his house but the appellants did not agree to his proposal and then he returned to his village. He further stated that on 11.12.1993 at about 4 p.m. P.W.12, Jaichandra Jha informed his Fua that the deceased died and having got the aforesaid information, he came to the village of the appellants where he learnt that his sister was burnt to death. He also made enquiry from the appellants but they did not give any satisfactory answer. He further stated that he gave information to the police and his statement was recorded. In his cross-examination, his attention was drawn towards signatures on two affidavits and he admitted his signatures on the affidavits. The aforesaid two signatures have been exhibited as exhibits A and A/1 respectively. He further admitted at para 7 of his cross-examination that there was proof of payment of Rs 80,000/- but he had not given the aforesaid proof to the police. He further admitted that the aforesaid demand was made for the first time in April, 1988. He also admitted that his sister spent her married life for near about six years in her matrimonial home but between the aforesaid period, she was subjected to cruelty but he never gave information either police or higher official regarding the aforesaid harassment and torture. He further stated that he as well as his family members did nothing about the aforesaid demand even his sister informed him about the above stated demand in the year 1992. He admitted at para 11 of his cross-examination that there was no proof of giving Rs 50,000/- to the appellants. He also admitted that the aforesaid amount of Rs 50,000/- was given to the appellants in the year 1992. This witness denied that he had sworn affidavits on 15.12.1993 and stated that his signatures were obtained on plain papers. He further stated that Tata 407 was purchased in February, 1993. He stated that he had made complain to DGP, Patna and Minister Sri Birendra Kumar Singh when his signatures were taken on plain paper and on 5.1.1994 he had made written complain before the police in respect of taking his signatures on plain paper. This witness denied this fact that the aforesaid amount of Rs 50,000/- was given to Yogendra Jha by him after withdrawing the aforesaid amount from the bank. He also denied this fact that his sister died of her illness and information regarding her death was given to him and when Yogendra Jha did not agree to return the ornaments of the deceased, he lodged this case.

28. P.W.14, Sailesh Kumar Gupta is police official and on 14.12.1993 he was posted as officer-in-charge of Pothia police station and recorded fardbeyan of P.W.10. This witness proved fardbeyan of P.W.10 as exhibit 2 as well as endorsement on fardbeyan as exhibit 3. This witness also proved formal FIR as exhibit 4.

29. P.W.15 is the Investigating officer of this case. This witness took the charge of investigation, inspected the place of occurrence and recorded the statements of the prosecution witnesses but could not succeed to trace out the dead body of the deceased and in course of investigation, he found the appellants absconding and lastly, after completion of investigation, he submitted charge sheet against the appellants. 

30. On careful perusal of the entire evidences available on record, I find that marriage of the deceased was solemnized with appellant Sanjay Jha in the year 1987 and after marriage second marriage was solemnized in the year 1988 and after her second marriage, she went to her in -laws' house. Date and factum of marriage have not been denied by the appellants rather appellant Sanjay Jha had admitted in his statement recorded under section 313 of the Cr.P.C that his marriage was solemnized with Navina Devi on 22.4.1987. The date of death of the deceased Navina Devi is also not in dispute and it is an admitted fact of the parties that the deceased died on 6.12.1993 and, therefore, it is an admitted position that the deceased died within seven years of her marriage. Furthermore, it is an admitted position that the deceased died within four walls of her matrimonial home. The case of the prosecution is that there was demand of dowry and the deceased was subjected to cruelty and harassment due to non-fulfillment of demand of dowry.

31. Now, it has to be seen as to whether there was any demand of dowry by the appellants or not. P.W.1, mother of the deceased, stated that the appellants used to assault her daughter due to Tilak amount and earlier they demanded Rs 10,000/- which was paid to them but again, they demanded Rs 50,000/- which was also paid to them after selling land but in spite of that they committed murder of her daughter. This witness admitted in her cross-examination that her son-in-law and Samdhi had demanded the aforesaid amount in writing and the aforesaid document can be produced by her before the court. 

32. P.W.2 brother of the deceased has, nowhere, stated about the above payment as well as torturing. P.W.3 stated that payment was made after two to three years of marriage of the deceased. P.W.4 stated that at the time of marriage, there was demand of dowry and some cash was given to the appellants but again, the appellants demanded dues amount and thereafter, Rs 50,000/- was given to the appellants after selling land. Similarly, P.W.5 also claimed that Rs 50,000/- was given to the appellants in his presence but both the aforesaid witnesses expressed their inability to disclose the month and date when the aforesaid Rs 50,000/- was given. Similarly, P.W.6 also claimed that the aforesaid payment of Rs 50,000/- was made in his presence but he stated that the aforesaid payment was made in the year 1990. P.W.7 also expressed his inability to disclose the month and date when the aforesaid payment was made and stated that, perhaps, the aforesaid payment was made in the year 1991-92. P.W.8, being aunt of the deceased Navina Devi, claimed that Rs 50,000/- was made in her presence. Similarly, P.W.9 also claimed that the aforesaid Rs 50,000/- was made in his presence. P.W.10 stated that his sister wrote letter to him mentioning this fact that the appellants were demanding Rs 80,000/- of remaining dowry amount after two months of her Duragman. This witness further stated that at the time of purchase of vehicle Rs 50,000/- was given to the appellants and after that the appellant Yogendra Jha wrote a letter demanding payment of remaining amount but admittedly, neither letter of the deceased nor letter of the appellant Yogendra Jha has been brought on record. Although P.W.1 admitted that her son-in-law and samdhi had made demand of dowry in writing but the aforesaid document was also not brought on record. According to the depositions of the aforesaid witnesses, Rs 50,000/- was paid to the appellants at the time of purchase of vehicle after selling land and trees but no sale deed had been brought on record. Admittedly, the aforesaid amount of Rs 50,000/- was given to the appellants for purchase of a vehicle and, therefore, it appears that the aforesaid Rs 50,000/- was not given in connection with dowry demand. Appellant Sanjay Jha has admitted in his statement recorded under section 313 of the Cr.P.C that he had purchased Tata 407 in the year 1993. Although he has denied to have taken Rs 80,000/- from the natal people of the deceased but a suggestion was given to P.W.10 that the aforesaid Rs 50,000/- was paid after withdrawing the said amount from the bank. Therefore, even if it is assumed that Rs 50,000/- was paid to the appellants, then also, the aforesaid payment was made for purchase of a vehicle and not in connection with dowry demand.

33. P.W.1 had admitted in her cross-examination that information regarding death of the deceased Navina Devi was sent by the appellants to her and she also admitted that P.W. 12 had informed them that the deceased died of diarrhoea . P.W. 2 also admitted that one Siwan Thakur gave information about the condition of Yogendra Jha and having got the aforesaid information, he along with Sujit Kumar went to the village of the appellants where he came to know that the deceased died of diarrhoea.

34. P.W.10 stated that on 11.12.1993, P.W.12 gave information about death of his sister and having got the aforesaid information, he went to the village of the appellants. The distance between village of the appellants as well as village of P.W.10 is about 10 to 11 Kosh, as admitted by P.W.1 in her cross-examination. According to the deposition of P.W.10, he came to know about death of the deceased on 11.12.1993 at about 4 p.m. but he went to the Superintendent of Police on 14.12.1993 and thereafter, he lodged the case on the same day before officer-in-charge of Pothia police station. This witness does not give any explanation as to why he did not lodge the case on 11.12.1993, particularly, in the circumstance, when he came to know about death of the deceased as well as disposal of her dead body on 11.12.1993. Furthermore, the distance between Pothia police station and Salempur village is about 2 K.M. but even then this witness did not take pain to lodge the case just after receipt of the information regarding death of the deceased as well as disposal of her dead body. Moreover, P.W.1 mother of the deceased as well as P.W.10 brother of the deceased admitted that the appellants had sent information to them regarding death of the deceased. Although the appellants have not produced any witness on the point that they had sent information regarding death of the deceased to her natal people but when mother of the deceased admitted in her evidence that the appellants had sent information to her about death of the deceased, there was no need for the appellants to produce any witness on the aforesaid point. 

35. Although almost all witnesses claimed that the deceased was subjected to cruelty and harassment by the appellants after her marriage on account of non-fulfillment of dowry demand but except P.W.10, none of the prosecution witness claimed to have seen the appellants putting the deceased into cruelty and harassment after her marriage. P.W.1 mother of the deceased has, nowhere, stated that the deceased informed her about her torturing and harassment at the hands of the appellants. Similarly, P.W.2, another brother of the deceased, also not stated about torturing or harassment of the deceased at the hands of the appellants. P.Ws. 3 and 4 have, nowhere, stated about torturing and harassment and P.W.5 stated that after marriage, she never met the deceased. 

36. P.Ws.6 and 7 also not stated about factum of torturing and harassment. Although P.W.8, aunt of the deceased, stated that the appellants used to threat the deceased and the deceased wrote letters in respect of torturing and harassment and the aforesaid letters were shown to the police but admittedly, no letter of the deceased has been brought on record. P.W.9 also not stated about torturing.

37. P.W.10 stated that for the first time, after two years of her marriage, his sister wrote letter disclosing this fact that the appellants used to torture her due to non-fulfillment of Rs 80,000/-. Admittedly, second marriage of the deceased was solemnized in the year 1988 and she went to her in-laws' house after solemnization of second marriage. P.W.10 admitted at para 7 of his cross-examination that for the first time demand of Rs 80,000/- was made in April, 1988 but admittedly, the aforesaid letter was not brought on record by the prosecution. This witness further stated that Rs 50,000/- was given to the appellants but this witness admitted that the aforesaid Rs 50,000/-was given for purchase of a vehicle and after that Yogendra Jha wrote letter to him demanding remaining amount giving threatening to kill his sister but admittedly, the aforesaid letter has also not been brought on record by the prosecution. This witness further stated that in the year 1993 when he went to meet his sister, she disclosed that she would be killed, if the remaining amount is not paid to the appellants. Therefore, it is apparent from the statement of P.W.10 that between 1988 to 1993, there was no demand on behalf of the appellants. Admittedly, the deceased died in the year 1993. Furthermore, it is also an admitted position that the deceased spent near about six years in her matrimonial home and between the aforesaid period neither P.W.10 nor his other family members lodged any case against the appellants and for the first time, P.W.10 lodged the present case after eight days of the death of the deceased. Therefore, I am of the opinion that the prosecution could not succeed to prove this fact that the deceased was subjected to cruelty and harassment by the appellants on account of non-fulfillment of illegal dowry demand. 

38. On the basis of the aforesaid discussions, I come to the conclusion that the prosecution could not succeed to prove all the ingredients of section 304B of the IPC and in absence of all ingredients of section 304B of the IPC, dowry death of the deceased can not be presumed and, in my view, the learned trial court committed error in appreciating the evidences available on record and furthermore, I am of the opinion that the impugned judgment of conviction and sentence order can not sustain in the eye of law.

39. Thus, on the basis of the aforesaid discussions, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence is, hereby, set aside. The appellants are on bail. 

They are discharged from the liabilities of their bail bonds.

(Hemant Kumar Srivastava,J)

Shahid/AFR 



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