PRADEEP KUMAR, J. - (1.) THE appeal is directed against the judgment of conviction dated 19.4.2007 and order of sentence dated 20.4.2007 passed by Shri Prasanna Kumar Dubey, Sessions Judge, Gumla in Sessions Trial No. 108 of 2006, by which he found the appellant guilty under Section 304(B) of the Indian Penal Code and convicted him thereunder to undergo R.I. for 7 years.
(2.) THE prosecution case was started on the basis of a Fardbeyan given by the informant, Anup Kumar Sahu (P.W.10) on 23.2.2006 stating therein that his sister, Rekha Kumari was married with Law Sahu, son of Sri Ganpat Sahu in the year 2001 according to Hindu Rites. At the time of marriage a cash of rupees 1 lakh and other articles were given as dowry. After marriage his sister went to her Sasural and started living there with husband, Law Sahu. Subsequently, his father deposited Rs. 50,000/ -in the name of his sister and brother -in -law in the Bank. It is alleged that subsequently his brother -in -law started pressing his sister for withdrawal of that money, but her sister always refused whereupon the accused - appellant, Law Sahu tortured and assaulted her. In January, 2005 when he assaulted his sister badly then she came to her house. Subsequently his brother -in -law also came and stated that unless they will give the money he will not take his sister to his house and left. On 22.2.2006 he came with his sister to the house of his brother -in -law, Law Sahu. In the night his sister cooked food for every body and at about 8 P.M. in the night all of them went to their room for sleeping. It is further stated that at about 10 P.M. in the night mother of his brother -in -law started shouting as to what you have done whereupon the informant went there and found his brother -in -law was standing there with a Tangi in his hand and blood is coming out of neck of his sister and she died. Then, he also started shouting on which the neighbours also came whereupon the accused - appellant, Law Sahu threw Tangi and ran away. On the basis of the said F.I.R. the police registered a case under Sections 302 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act. On completion of the investigation the police submitted charge -sheet under Section 304( B) of the Indian Penal Code against the accused -appellant. Since, the case was exclusively triable by the court of sessions and hence the learned Magistrate after taking cognizance of the cases committed the same to the court of sessions where the trial was held and the appellant was found guilty and convicted as aforesaid. It is submitted by the learned counsel for the appellant that the appellant was charged only under Section 304(B) of the Indian Penal Code and after trial in spite of fact that ingredients of Section 304(B) was not fulfilled and as such the learned trial court wrongly convicted the appellant under Section 304(B) of the Indian Penal Code. It is further submitted that as has been held in the case of Sunil Bazaj V/s. State of M.P. reported in 2001(4) Cr. Law Journal page 4700, wherein the Hon'ble Supreme Court has held that four ingredients must be fulfilled for finding accused guilty under Section 304(B) of the Indian Penal Code, which are as follows: (i) The death of woman must have been caused by burns or bodily injuries or otherwise than under normal circumstances; (ii) Such death must have occurred within seven years of her marriage; (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (iv) Such cruelty or harassment must be for or in connection with demand of dowry. It is further submitted by the learned counsel for the appellant that (i) first ingredient is there, that she died an abnormal death, (ii) 2nd ingredient is also there that the death occurred within seven years of her marriage but there is no evidence that soon before her death the woman was subjected to cruelty or harassment by her husband and that harassment is in connection with demand of dowry and as such the conviction of the appellant is bad in law and fit to be set aside.
(3.) ON the other hand, learned counsel for the State has submitted that the cruelty and harassment for not giving the dowry was continuing soon before her death and when she came without the money she was done to death by the appellant -husband and as such all the ingredients have been fulfilled and the appellant has rightly been convicted under Section 304(B) of the Indian Penal Code.;