D.K.SINHA, J. - (1.) THE instant appeal has been directed against the impugned judgment of conviction and order of sentence passed by Shri Dhruv Narayan Upadhyay, 1st Additional Sessions Judge Giridih in S.T. No. 250 of 1994 on 1.7.1999 whereby and whereunder the appellant No. 1, Devraj Sao and appellant No. 3 Bundiya Devi have in on convicted under Sec.304B of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for seven years whereas the appellant No. 2, Umacharan Sao though was convicted under same offence but has been sentenced to undergo Rigorous Imprisonment for ten years. The appellants have further been sentenced to undergo Rigorous Imprisonment for two years each under Sec. 493A of the Indian Penal Code each with stipulation of tine and rigorous imprisonment for one year each for their conviction under Sec.201 I. P.C.
(2.) THE recourse of law was set on motion on the written report of the informant, Rameshwar Sao (P. W.5) presented before the Officer -incharge, Giridih (M) police station giving rise to Giridih Muffasil P. S. Case No. 129 of 1993. The informant alleged interalia that he had married his daughter, Usha Devi some two years ago with the appellant No. 2, Uma Charan Sao of village Koldiha. On the eve of her marriage, he had given Rs. 15,000.00 in cash, besides utensil, ornaments and cloths on demand. After the marriage, his daughter went to her matrimonial home. When he visited the matrimonial home of his daughter after two months to take her back on executing "Bidai" it was refused by the appellant No. 1. Devraj Sao and the appellant No. 2, Umacharan Sao who placed their demand of T.V. Radio, Cycle and Wrist watch. However, after persuasion, the informant took away his daughter with him to his home where Usha Devi (since deceased) complained against her husband, father -in -law, mother -in -law as well as sister -in -laws alleging that they had always been extending physical and mental torture to her to bring T.V. Cycle as well as wrist watch from her parental home. After 15 days the appellant No. 2, Uma Charan Sao (son -in -law of the informant) came there and took away his wife with him and since then she was living at her matrimonial home. After some time she had sent information to the informant about her misery that she was being assaulted and tortured by the appellants including her sister -in -laws who were widows and living at their parental home for the dowry. On 23.7.1993 the appellant No. 1 Devraj Sao, who is the father -in -law of the deceased, came to the informant and apparised that Usha Devi was missing since 21.7.1993. He enquired her whereabouts to which the informant expressed his ignorance and he also came out in search of his daughter to her matrimonial village Koldiha, Bish Number. The informant searched her in the villages of his near relatives. However, he came to know from the villagers of her matrimonial home that all the accused persons including the appellants had assaulted his daughter, Usha Devi for dowry on the previous Wednesday. The informant had reason to believe that the dead body of his daughter was thrown into Achanak (abandoned coal mine, filled with water). The dead body of Usha Devi was recovered from 'Achanak ' The police registered Giridih P.S. Case No. 129 of 1993 under Sec. 304B/498A/201/34 of the Indian Penal Code and after investigation submitted chargesheet against the accused persons including the appellants for commission of dowry death of Usha Devi and accordingly, charge was framed against five accused persons, viz, Devraj Sao, Umacharan Sao and Bundiya Devi (appellants) and Malo Devi and Kunti Mosamat (sister -in -laws) for the offence under Sec.304B/498A/201 read with Sec.34 of the Indian Penal Code and all the accused were put on trial. After trial, the accused Malo Devi and Kunti Mosamat were acquitted whereas the appellants were held guilty and were substantially sentenced. The learned Counsel appearing for the appellants, Mr. Ughal submitted that all together seven witnesses were produced and examined on behalf of the prosecution Viz P.W.1 Chohini Devi, P.W. 2, Motilal Yadav, P.W.3. Rajendra Yadav, P. W.4 Dr. B.P. Singh, P.W.5 Rameshwar Sao, P.W.6 Raj Kumar Sao (brother of Usha Devi) and P.W.7, Investigating Officer.
(3.) ADVANCING his arguments learned Counsel further submitted that the trial court below failed to take into consideration the evidence of P.W.4, Dr. B.P. Singh, Medical Officer who held postmortem examination on the body of Usha Devi on 26.7.1993 at about 2.15 p.m. with the following findings: Decomposed body swollen, foul smell, peeling of skin, greenish colour at places Teeth -intact, tongue -protruded, frothy reddish fluid at mouth and nostrils. Features -unrecognizable On dissection -: Sub cutaneous tissues in neck NAD. Larynx and tracheas in stage of Putrefaction: Hyoidbone -: in tact Lungs: - in stage of Putrefaction. Heart: - Soft, scabby and empty both sides. Liver: - Soft and scabby, in stage of Putrefaction; Spleen and Kidneys - in stage of Putrefaction. Stomach: - empty; Mucous membrane - dark red, irregular patches on posterior wall involving whole thickness of stomach wall. Urinary bladder: - empty. Uterus: - normal size (non gravid). Skull bones: - Intact. Brain liquefied. No evidence of external and internal injuries either antemortem or postmortem. Definite opinion as to cause of death could not be ascertained during the course of post mortem examination, might on account of drowning. The following visceras were preserved for chemical Analysis: Stomach, spleen, kidney, a portion of Liver, Lung, heart, skull and intestine were. Time elapsed since death till P.M. examination was assessed about 3 to 5 days.;