D.P. Singh, J. - (1.) Both these appeals, arising from common judgment and order, are directed against the judgment of conviction and order of sentence dated 28-2-2000 and 29-2-2000 passed in Sessions Trial No. 227/ 98 and Sessions Trial No. 68/99, whereby and where under the learned 5th Additional Sessions Judge, Giridih held the appellants guilty under Sections 304(B) and 498(A) Indian Penal Code and sentenced them to undergo RI for 10 years and 3 years respectively.
(2.) Brief facts leading to their conviction are that Kalyani @ Rinku, daughter of the informant, PW 9 Habulal Ojha, was married with appellant Diwakar Dwivedi on 10th May, 1995 according to Hindu customs. It is further stated that the informant has given normal gifts to the married couple. However, this could not satisfy the appellants and they started demanding further a sum of Rs. 30,000/- from the informant. According to the prosecution version, the second marriage was delayed and on their request after one year the deceased was taken to her Sasural but soon after persistent demand of money as well as one Maruti car was communicated through the deceased. The informant further asserted that his daughter was all along tortured for non-fulfilment of dowry demand. It is further asserted that about three months ago the deceased was taken to Bokaro where the appellant Bisheshwar Dwivedi used to serve in BSL, from where she was taken to village Remba, native place of the appellants. On 16th May, 1998 PW 5, Santosh Kumar Ojha went to village Remba, to see the deceased, where he was informed that the girl was burnt and taken to Giridih hospital for her treatment. P.W. 5 went to Giridih and found that Kalyani has already died in the hospital. He returned back to Ojhardih and again reached Giridih hospital along with informant and others to find that the dead body has already been sent for post-mortem and when they reached the post-mortem house, all the appellants fled away. The informant accordingly alleged that Kalyani @ Rinku was killed for non-fulfilment of dowry demands. His statement was recorded by Giridih Sadar police and this written report was forwarded to O.C. Hirodih P.S. for registration of the case. Hirodih police registered Hirodih P.S.Case No. 19/98 under Sections 498A/304B/34 Indian Penal Code and started investigation of the case. The case was registered against all the appellants and two brothers of Diwakar. Finally two chargesheets were submitted against three appellants under Sections 304B/498A/34 Indian Penal Code. Their trial was committed to the Court of Sessions, where the appellants were charged for the offences mentioned above, to which they pleaded not guilty and claimed false prosecution. The trial proceeded and after examining witnesses produced by both sides, learned Court below found and held appellants guilty of the offences and sentenced them to serve RI for ten years under Sections 304B and three years under Section 498A Indian Penal Code. However, sentences were directed to run concurrently.
(3.) The present appeals have been preferred on the ground that the learned trial Court has committed apparent mistake by believing the prosecution version that death has resulted in consequences of torture for non-fulfilment of dowry demand. It has further been asserted that the allegation of demand of Rs. 30,000/- made much before the alleged occurrence and could not be connected with the death of Kalyani. It is further asserted that the death of Kalyani could not be held homicidal or suicidal, which has in fact occurred due to accidental fire. Therefore, the presumption under Section 113-B of the Indian Evidence Act should not have been attracted. According to the learned senior counsel for the appellants, the presumption was based upon surmises and conjecture and against the principle of criminal jurisprudence. It has also been asserted that no independent witness has supported the prosecution case rather the post mortem report and evidence of PWs 1, 3, 4 and 7 along with evidence of defence witnesses creates a reasonable doubt on the prosecution case. Learned senior counsel has further submitted that the demand of dowry was vague and could not be connected with the incident dated 16- 5-1998, therefore, any conviction under Section 304B Indian Penal Code deserves to be set aside. Learned senior counsel further criticized the acceptance and taking into consideration the letter alleged to be written by the deceased dated 28-6-1996, Ext.3, and the information petition said to be filed by the informant before Bokaro police because they have not been brought on record properly. It is also pointed out that the learned Court below has not put up all the circumstances to the appellants under Section 313 of the Code.;