Raj Bahadur and Others vs State of U.P.

Mrs. Saroj Bala, J.—This criminal appeal has been directed against the judgment and order dated 1692005 passed by the Additional Sessions Judge/Special Judge (E.C.) Act Varanasi in S.T. No. 337 of 2002, State v. Raj Bahadur and Ors., whereby convicting and sentencing the appellants with rigorous imprisonment for life for the offence under Sections 304B, 120B I.P.C., under Sections 498A, 201 read with Section 120B I.P.C. with rigorous imprisonment for three years and fine of Rs. 5,000/ each and in default to undergo rigorous imprisonment for six months and under Section 3/4 of Dowry Prohibition Act with rigorous imprisonment for one year and fine of Rs. 2,000/ and in default to serve rigorous imprisonment for two months. All the sentences were to run concurrently.

The brief resume of back up facts mid evidence adduced at the trial is thus :

The daughter of first informant Lal Vrat (P.W. 1) was married to appellant No. 1 Raj Bahadur about four years before the incident. It was alleged that first informant and his daughter came to know after her marriage about the first marriage of appellant No. 1 with appellant No. 2 Smt. Radha alias Kamla and her living in the same house with him. The appellants alleged to have tortured and tormented informant''s daughter for demand of cash of Rs. 20,000/. On 662000 informant''s son went to her martial home and she told him that she was being harassed and assaulted by the appellants for the demand of money. On 1162000 the first informant received information trilogy a stranger that his daughter was poisoned to death by the appellants on 962000 and caused the disappearance of deadbody. The victim was having pregnancy of six months at the time of incident. The written report of the incident Ext. Ka1 was lodged at the police station on 1962000 at 3.10 p.m. On the basis of written report chick F.I.R. Ext. Ka11 was prepared by H.C. Nand Lal and crime case No. 84 of 2000 was registered under Sections 498A, 304B, 201, 120B I.P.C. and Section 3/4 of Dowry Prohibition Act at P.S. Jansa District Varanasi. The investigation was entrusted to Circle Officer Ajay Pratap Singh (P.W. 8). The Investigating Officer visited the place of occurrence and prepared site plan Ext. Ka2. After investigation final report Ext. Kha1 was submitted. The final report was rejected by S.P.R.A. vide order dated 372000 and further investigation was handed over to C.O. Sadar Swami Prasad Mishra (P.W. 9). The Investigating Officer after going through the affidavits interrogating the witnesses and completing other necessary formalities submitted the chargesheet Ext. Ka10 against accused/appellants for the offence under Sections 304B, 498A, 201, 120B I.P.C. and Section 3/4 of Dowry Prohibition Act.

The accused/appellants were committed to the Court of Sessions vide order dated 2162002 passed by the Chief Judicial Magistrate Varanasi. The accused/appellants were charged for the offences punishable under Sections 498A, 304B, 201, 120B I.P.C. and Section 3/4 of Dowry Prohibition Act. The appellants pleaded not guilty and claimed to be tried.

The prosecution examined ten witnesses in all. Out of them Lal Vrat (P.W. 1), Radho Sharan Singh (P.W. 2), Shiv Dayal Yadav (P.W. 3), Shiv Moorat (P.W. 4), Tilakdhari Yadav (P.W. 5), Sunita Yadav (P.W. 6), Ram Dulari Devi (P.W. 7) are witnesses of facts. C.O. Ajay Pratap Singh (P.W. 8), and C.O. Swami Prasad (P.W. 9) are investigating officers. H.C. Nand Lal (P.W. 10) had prepared chick F.I.R. Ext. Ka11 and made entry of registration of crime in G.D. Ext. Ka12.

The accused/appellants in their statements under Section 313 Cr.P.C. denied the prosecution allegations in toto and filed their written statements stating that first marriage of appellant Raj Bahadur was solemnised twenty years before and couple being issueless, the appellant was engaged to first informant''s daughter Neelam, a blind girl, with the consent of his first wife and engagement ceremony took place at Vishwanath Mandir, B.H.U. On 862000 at about 11 p.m. in the absence of appellant Raj Bahadur the first informant''s daughter had an attack of cholera and was taken to Jeewan Deep Hospital Bhadohi by appellants Jang Bahadur alias Jangi and Radha alias Kamla from where she was referred to Varanasi. Her condition being critical she was admitted in Kachhwa Christian Hospital situated at Kachhwa, at 4.15 a.m. on 962000 where she died during the course of treatment at 5.30 a.m. The information about death was conveyed to Virendra Prasad alias Bengali R/o Khajuri. The first informant and Tilakdhari (P.W. 5) his elder soninlaw and other family members attended her cremation. The appellants denied having demanded dowry and harassed the victim for extortion of dowry and attributed their false implication at the behest of Hingu and Bechan R/o Nehwanipur with whom civil suit was pending. The appellants in their defence filed documentary evidence Ext. Kha1 to Kha14 and examined Keshav Singh (D.W. 1), Virendra Prasad alias Bengali (D.W. 2), Dr. Jackob Jan (D.W. 3) to establish the plea of alibi of appellant No. 1 death of victim due to cholera and circumstances in which second marriage of appellant No. 1 took place.

The trial Judge after appraisal of evidence recorded the finding of conviction and sentenced the appellants.

We have heard Shri P.N. Mishra, learned Senior Advocate appearing on behalf of the appellants, Shri N.K. Verma, learned A.G.A. and have gone through the lower Court record.

The finding of conviction has been assailed by the learned Counsel for the appellants on the grounds the first wife of the appellant No. 1 being issueless he married the victim a blind girl with the consent of his first wife and informant and other family members had knowledge about his first marriage; the appellant No. 1 was on official duty on 862000 and 962000 in District Sitapur and in between the night of June 8/9, 2000 the victim had cholera attack and she was taken to Jeevan Deep Hospital from where she was referred to Varanasi but her condition being critical she was admitted at 4.15 a.m. on 962000 in Christian Hospital situated at Kachhwa and was treated by Dr. Jacob Jan (D.W. 3); there was no demand of dowry at the time of marriage or at any time thereafter; the First Information Report was lodged ten days after the incident, and the victim died due to cholera disease and her deadbody was cremated in the presence of first informant and his relatives.

The learned A.G.A. supporting the conviction argued that the prosecution evidence proved that the deceased was married to appellant No. 1 Raj Bahadur about four years before the incident and she died in unnatural circumstances at her matrimonial home within seven years. She was subjected to harassment and cruelty for the demand of cash of Rs. 20,000/.

In order to appreciate the arguments made before us we have carefully examined the evidence on record.

The witness Lal Vrat (P.W. 1) the first informant and father of the deceased, testified that his daughter was married to appellant Raj Bahadur about four years before the incident and he gave Rajdoot Motor cycle, bed, utensils, almirah etc. to his daughter at the time of marriage. According to him his daughter returned to her parental home about 33/1/2 months after marriage and told him about the first marriage of appellant Raj Bahadur with appellant Radha alias Kamla who was living with him. She also complained about her harassment by appellants for the demand of cash of Rs. 20,000/. He further stated that he tried to arrange the demanded money but could not make arrangement. He went on to state that his daughter resided at her parental house for nine months thereafter she was sent to marital home. On 66 2000 his son visited his sister and she told him that she was being subjected to assault and harassment for the demand of cash of Rs. 20,000/. On 1162000 information was given by an unknown person that his daughter was poisoned to death on 962000. He went to the residence of appellants and enquired about his daughter from appellant Raj Bahadur who replied that they had done whatever they wanted. According to him the villagers told him that his daughter was poisoned to death by the appellants. He deposed that his daughter was carrying pregnancy of 56 months. On 1162000 witness went to police out post Kapsethi for making report of the incident from where he was sent to P.S. Jansa. He deposed that his report was not registered at P.S. Jansa and he was directed to lodge the report at police outpost Kapsethi. He kept on approaching both the police stations but the report of the incident was not registered and ultimately application Ext. Ka1 was made to the S.S.P. Varanasi and First Information Report was registered at P.S. Jansa in compliance of the order of Senior Superintendent of Police Varanasi. The witness denied that his daughter was blind since birth. He admitted that Tilakdhari is his elder soninlaw. He feigned ignorance that mother of Tialkdhari is the sister of Jira Devi. He denied having acquaintance with Pattal and Kanhiya. He denied having knowledge that Jira Devi was married to Kanhiya and accused Radha alias Kamla was the daughter of Pattal. He denied having knowledge that first marriage of accused Raj Bahadur was solemnised with Radha alias Kamla twenty years before the incident and she was issueless. He denied having stated in his previous statement under Section 161 Cr.P.C. that his daughter was blind since birth and accused Raj Bahadur was married to accused Radha alias Kamla twenty years before but no child was born out of their wedlock. He resiled from his previous statement that accused Radha alias Kamla who happened to be his relative made proposal of second marriage of her husband with his daughter and marriage was solemanised for procreation of children. He denied his previous statement under Section 161 Cr.P.C. that marriage of his daughter was not being settled any where due to her blindness, therefore, he had accepted the proposal of accused Radha alias Kamla for marriage of his daughter with accused Raj Bahadur. He stated that the stranger who gave him information about the incident did not, tell him that his daughter was admitted in Kachhwa Misson Hospital. According to him he had five daughters out of whom Neelam (deceased) was second daughter and eldest daughter was married to Tilakdhari. He deposed that his third and fourth daughters have studied upto High School whereas Neelam had studied upto first or second class. According to him Neelam had studied at Chitupur Primary School but her name was not entered in the admission or attendance register. He testified that Tilakdhari, soninlaw had asked him to marry Neelam with accused Raj Bahadur and he acted as mediator. He stated that no marriage cards were printed and marriage ceremony took place in Vishwanath temple in accordance with customary rituals. There was no arrival of Barat and 3035 persons had accompanied the bride and bridegroom. He deposed that marriage took place with his consent in the presence of the mother of Neelam and other family members. He gave out that Raj Bahadur was employed in dairy farm in District Sitapur at the time of marriage. He stated that Rs. 500/ was paid at the time of ''Chekaiya'' ceremony and no dowry was settled but Rajdoot Motor Cycle was demanded at the time of marriage. According to him he was told by his son that his daughter was being harassed for the demand of cash of Rs. 30,000/. It is there in his evidence that he had willingly sent his daughter to marital home for the second time and she stayed there for about 1/1/2 years and during the said period he or his son did not visit her but Tilakdhari used to inform about her welfare. His daughter remained at her marital home for 1516 months after she was sent on the third occasion. He denied that marriage was settled with the mediation of Virendra. He feigned ignorance about the fact that marriage of accused Raj Bahadur was solemnised with the consent of his wife Radha alias Kamla.

Radho Sharan Singh (P.W. 2) brother of the deceased, testified that he went to the marital home of his sister Neelam 1520 days after her marriage and at that time she disclosed that she was being subjected to assault and harassment by the accused persons for demand of cash of Rs. 20,000/. He stated that he visited his sister for the last time on 662000 and on that occasion she told him that she was being harassed and tortured by the accusedappellants for demand of cash of Rs. 20,000/ According to him the marriage of his three sisters took place at his residence and their groom parties (Barat) came to their village. According to him all his sisters were educated and victim had studied up to class 3 or 4. He denied having knowledge about the fact that appellant Raj Bahadur and Radha alias Kamla were issueless. He testified that three months after the marriage he himself brought his sister to the parental home and she was happily sent with him by the appellants and she stayed at her parental home for 45 months. He gave out that his sister was willingly sent to the marital him second time and she stayed there for 56 months. According to him the appellants objected to send his sister for the third time and demanded cash of Rs. 20,000/ which was not paid at the time of marriage. He further stated that cash of Rs. 20,000/ was to be paid at the time of marriage but it was not paid at that time. He further stated that his sister was sent with him the same day, he reached there and she stayed with them for about three months. According to him his sister was happily sent to the marital home with Pappu, a relative of her husband. The witness again went to bring his sister from the marital and she was willingly sent with him and stayed with her parents for two months. He gave out that appellant Jang Bahadur came to take away his sister from parental home and she was willingly sent with him. He deposed that whenever he went to the marital home of his sister she was sent with him by the appellants and she went to her marital home from the parental home 1213 times within the period of 31/2 years. The witness feigned ignorance that appellant Raj Bahadur was in service at the time of marriage of his sister. He stated that Tilakdhari his brotherinlaw was mediator of this marriage. He denied having knowledge that maternal aunt (Mausi) of Tilakdhari is the real aunt of accused Radha alias Kamla. He denied having knowledge that his sister suffered with Cholera in the night of 862000 and was taken to the hospital for treatment and she died in the hospital.

Shiv Dayal Yadav (P.W. 3) a relative and neighbour of first informant testified that they went to Kachuwa hospital and were informed that a patient of village Nehwanipur was brought to the hospital and died within few minutes while oxygen was being given to her. He deposed that he had attended the marriage of Neelam which took place during day hours at Vishwanath temple B.H.U. According to him marriage was solemnised in the temple with exchange of garlands ceremony by the bride and bridegroom and marriage rituals were performed by priest. He gave out that Neelam went to her marital home after marriage, the same day. According to him Neelam did not suffer from visual disability and had proper eyesight. He stated that when Neelam came to her parental home for the first time, she told him that she was being subjected to cruelty for the demand of Rs. 20,000/ but he did not see any mark of injury on external part of her body. He admitted that appellant Raj Bahadur was issueless and was the only son of his parents. He further stated that accused Raj Bahadur was posted at Sitapur. He testified that he alongwith Lal Vrat and Shiv Murat went to Kachhwa Christian Hospital as villagers of Nehwanipur informed that victim was taken to Kachhwa side. According to him they were told that a patient of Nehwanipur was brought to the hospital and she died a minutes after she was put on oxygen. He further stated that the peon preparing patient slips in Kachhwa Hospital informed them about the death of patient after seeing the record. He gave out that they did not enquire about the name and address of the patient from the peon nor talked to the doctor. He testified that from Kachhwa Hospital they went to the police station through village Khajuri but they visited none at village Khajuri and on the way they met a jeep driver and a shopkeeper who told them that some other driver left the deadbody from his jeep and deadbody was taken somewhere on a tractor. He admitted that first wife of accused Raj Bahadur is a resident of Khajuri. It is there in his testimony that marriage of other three sisters of deceased was not solemnised in the temple and grooms'' parties came to the resident of first informant. The witness could not give any explanation for performing the marriage of Neelam from Vishwanath temple. He resiled from his previous statement under Section 161 Cr.P.C. that Neelam had poor vision. He denied that Neelam was blind since birth and for that reason she was not being married. He denied having knowledge that maternal aunt of Tilakdhari is the real aunt of accused Radha alias Kamla and Virendra alias Bengali is son of maternal aunt of Tilakdhari who got the marriage settled. He feigned ignorance that Neelam suffered from Cholera on 862000. He denied that she was admitted in Kachhwa Hospital by her family members for treatment of Cholera. He denied having attended the cremation and staying in the night of 962000 at the residence of Hingu Yadav resident of village Nehwanipur.

Shiv Moorat (P.W. 4) denied that Neelam was blind. According to him he as well as first informant are employees of B.H.U. but they work in different departments. He denied having stated in his previous statement that family members of Neelam took her to Kachhwa Hospital and they went to Kachhwa Hospital and came to know from there that patient of Nehwanipur was brought there and she died 23 minutes after she was put on oxygen. He resiled from his previous statement that after death Neelam was taken by his motherinlaw and brotherinlaw to village Khajuri and from there she was brought on a tractor to It was Ghat and was cremated there. In his crossexamination he deposed that he went to the residence of accused Raj Bahadur in village Nehwanipur alongwith Lal Vrat first informant and they met Raj Bahadur and others and after inquiring about their welfare they went to Kachhwa Hospital to enquire about the patient. In Kachhwa Hospital they were told by compounder and nurse that a patient was brought to the hospital at about 89 a.m. He admitted that marriage of Neelam with Raj Bahadur was solemnised with garlanding ceremony in Vishwanath Temple situated at B.H.U. He denied having knowledge that accused Raj Bahadur was in service at the time of marriage. He further stated that the marriage of other sisters of Neelam was not solemnised in the temple. He denied that real maternal aunt of brother inlaw of Neelam is the real aunt of accused Radha alias Kamla.

Tilakdhari Yadav (P.W. 5) the eldest soninlaw of the first informant testified that his maternal aunt resided in village Khajuri near Raja Ka Talab and Virendra alias Bengali was the son of his maternal aunt. He denied that marriage with Raj Bahadur was settled with his mediation. According to him Virendra alias Bengali was mediator and he had consulted him before settlement of marriage. According to him Neelam was illiterate. He testified that his marriage was solemnized with ''Barat'' ceremony and marriage of his sisterinlaw Madhu and Vibha was also performed with ''Barat'' ceremony. According to him the educational qualification of Vibha and Madhu is high school and intermediate respectively and his younger sisterinlaw is studying in high school. It is spelt out from his testimony that marriage of Neelam and accused Raj Bahadur took place during the day hours at Vishwanath temple situated at B.H.U. and accused Raj Bahadur did not come with ''Barat'' at the residence of Lal Vrat. He stated that the deposition of his fatherinlaw that only a sum of Rs. 500/ was paid in ''Chikhaiya'' ceremony was correct and no dowry was settled. He admitted that he had asked his fatherinlaw to marry Neelam with Raj Bahadur. He further stated that his fatherinlaw asked him to find out a groom for Neelam and he instructed Virendra alias Bengali resident of Khajuri to search a groom for her. He went on to state that Virendra alias Bengali gave address of the boy a resident of village Nehwanipur and he informed his fatherin law about that boy and thereafter his fatherinlaw went to village Khajuri and had discussion with Virendra alias Bengali about the marriage proposal. He denied having visited the marital home of Neelam after her marriage. He gave out that Neelam was happily sent to her marital home on second occasion. He admitted that the testimony of his fatherinlaw that the marriage was solemnised with mediation of Tilakdhari and not of Virendra alias Bengali was correct. The witness could not disclose whether Neelam died in the village Nehwanipur or in the hospital. He gave out that Kachhwa is situated at a distance of about 1015 km. from village Nehwanipur and Kachhwa is at a distance of 89 Km. from his residence. According to him Christian Hospital Kachhwa is a well known hospital of that area and provides treatment to the patients of all types of diseases. He admitted that Raj Bahadur was issueless and was the only child of his parents and owned sufficient agricultural land. He denied having knowledge that accused Radha alias Kamla was real cousin sister of Virendra alias Bengali.

Sunita Yadav (P.W. 6) sisterinlaw of deceased stated in her crossexamination that her sisterinlaw Neelam was married in the year 1996 with ''garlanding'' ceremony at Vishwanath temple situated at B.H.U. Campus and she went to her marital home the same day. According to her Tilakdhari, her elder brotherinlaw acted as mediator in the settlement of marriage of Neelam. According to her Neelam came to her parental home on three or four occasions after the marriage. She testified that the marriages of her three sisterinlaws were performed after arrival of ''Barat'' at their residence whereas marriage of Neelam was solemnised in the temple with ''garlanding'' ceremony. She could not disclose any reason as to why the marriage of Neelam took place in the temple with ''garlanding'' ceremony. She admitted that Raj Bahadur and his first wife being issueless he married Neelam with the consent of accused Radha alias Kamla. She admitted that parental home of accused Radha alias Kamla was in village Khajuri. She denied the suggestion that information about the death of Neelam was given to her fatherinlaw who alongwith her husband and other two villagers went to the marital home of Neelam and attended her funeral the same day.

Ram Dulari Devi (P.W. 7) mother of the deceased testified that marriage of her daughter Neelam took place with Raj Bahadur at Vishwanath temple situated in B.H.U. Campus. She deposed that her son Radho Sharan Singh visited her daughter at her martial home four months before her death and he told her that her daughter was being harassed and tortured by the accused for the demand of cash of Rs. 20,000/. She further stated that her daughter died two months after the visit of her son to her marital home. She admitted having stated in her statement under Section 161 Cr.P.C. that there was no demand of dowry at that time and two months before the incident she came to know that cash of Rs. 20,000/ was being demanded by the accused for business purpose. She admitted that Ram Vriksh was her real brotherinlaw. She denied having knowledge about the residential place of parentsinlaw of her brotherinlaw. She stated that Rajdoot Motor Cycle, almira, gold chain, finger ring, ear rings, big box, suitcase, clothes, silver pajeb (payal) and cash of Rs. 10,000/ were willingly given to Neelam at the time of her marriage. She admitted that the marriage was solemnised with ''garlanding'' ceremony. She stated that marriage was not performed by the priest. She could not assign any reason as to why the marriage of her daughter Neelam was solemnized in the temple with a groom who was already married. It is there in her testimony that her husband went to village Nehwanipur the same day on which Neelam died. She denied having knowledge that Neelam died in the hospital or in village Nehwanipur at her marital home. She feigned ignorance that her real sisterinlaw Rama Devi is the cousin sister of sisterinlaw of accused Kamla alias Radha.

Ajay Pratap Singh, the then C.O. City Sultanpur, P.W. 8 submitted final report Ext. Kha1 after recording the statements of witnesses. He testified that first informant Lal Vrat stated in his previous statement that his daughter Neelam was blind since birth and first marriage of Raj Bahadur was solemnised about twenty years before with Radha alias Kamla but no child having been born out of their wedlock accused Radha alias Kamla who happened to be their relative proposed the marriage of Neelam with her husband and marriage was performed for raising the family. The first informant Lal Vrat gave out in his statement under Section 161 Cr.P.C. that he accepted the proposal of Radha alias Kamla and married his daughter Neelam to Raj Bahadur as due to blindness, he could not settle her marriage. He stated in his previous statement that there was no demand of dowry during the period of four years of marriage and he came to know that Neelam was admitted in Kachhwa Mission Hospital. The witness (P.W. 8) recorded the statement of Dr. Jackob Jan posted at Kachhwa Christian Hospital who deposed that on 962000 at 4.40 a.m. on receiving information about the admission of a serious patient he reached in the emergency ward and examined Neelam wife of Raj Bahadur resident of Nehwanipur who was brought by Jang Bahadur. Dr. Jacob Jan stated before the I.O. that it was not a case of poisoning and there was no vision in the eyes of the patient. The I.O. collected medical certificate, admission form and death certificate from Kachhwa Christian College.

The witness Keshav Singh, Assistant Cashier at Sitapur Dughda Utpadak, Sahakari Sangh (D.W. 1) was examined by defence to support the plea of alibi of accusedappellant Raj Bahadur Yadav. He testified that accused Raj Badhaur Yadav son of late Kamla Singh Yadav R/o Nehanipur P.O. Vankat was posted as refrigerator mechanic/operator in Sitapur Dughda Utpadak Sahakari Sangh Limited since the year 1988. He deposed that according to the attendance register since May 3 to June 9, 2000 Raj Bhadur Yadav regularly attended his duty. According to log book entry Ext. Kha 6 and Ext. Kha7 the machine of Sitapur Sale Centre, Refrigeration section was operated on 862000 and 962000 by Raj Bahadur Yadav himself. In the crossexamination he deposed that the attendance register was not signed in his presence but the entries of log book Ext. Kha6 and Ext. Kha7 were in the handwriting of Raj Bahadur Yadav. He refuted the suggestion that attendance register was signed by Raj Bahadur Yadav after the incident. He produced the duty certificate Ext. Kha 3 and attendance register for the month of MayJune 2000 Ext. Kha 4 and Kha5. He stated in the crossexamination that according to the log book Raj Bahadur Singh Yadav remained on duty on 862000 from 10.30 p.m. to 6.30 a.m. and on 962000 from 9 a.m. to 5 p.m. and operated the machine. The log book dated 962000 was seen by R.P. Singh Incharge Administration and endorsement of ''seen'' bore his signature.

Virendra alias Bengali Yadav (D.W. 2) is the son of maternal aunt (Mausi) of Tilakdhari, P.W. 5 elder sonin law of first informant. He testified that Tilakdhari was the son of his maternal aunt Magona. According to him Lal Vrat, father of Neelam was previously known to him and he visited him a number of times with Tilakdhari even before the marriage of Neelam. He deposed that accused Radha alias Kamla his real cousin sister was married to Raj Bahadur the only son of his parents but no child was born out of their wedlock during the long period of 2425 years of married life. He testified that Neelam was completely blind. He went on to state that Tilakdhari Yadav told him that due to blindness her marriage was not being settled and asked him to find out a groom and during the same course accused Radha alias Kamla asked him to get the second marriage of her husband settled. Considering the need of both the parties, he proposed the marriage of Raj Bahadur to Tilakdhari and he agreed for with the proposal. The marriage was solemnised with exchange of garlanding ceremony at Vishwanath Temple situated in B.H.U. According to him the information about death of Neelam was given by him to Tilakdhari Yadav and Tilakdhari Yadav informed his fatherinlaw and they attended the cremation of Neelam and stayed at night at the residence of Hingu Yadav (Pattidar) of accused Raj Bahadur. He deposed that Neelam was blind since birth. He further stated that in the year 1993 he went to the house of Neelam for the first time and he was told by her family members that she was blind since birth. He saw her in the year 1993 and found that her both eyes were white. He deposed that father of Neelam had previous knowledge about the marriage of accused Raj Bahadur with accused Radha alias Kamla. According to him he got information about the death of Neelam at 10 a.m. on 962000 thereafter he went to the house of Tilakdahri Yadav and reached there at about 11 a.m. He testified that when he reached the house of Raj Bahadur the deadbody of Neelam was at his residence. According to him cremation took place at Itwa Ghat.

Dr. Jacob Jan (D.W. 3) lecturer in Department of Community Medicine situated at Christian Medical College Vellore, Tamil Naidu testified that he remained posted as Medical Officer at Christian Hospital Kachhwa, Mirzapur (U.P.) uptill October, 2000 and had examined Neelam wife of Raj Bahadur resident of Nehwanipur on 962000 at 4.15 a.m. and gave treatment to her. She was brought by Jung Bahadur. According to him she was suffering from loose motions and vomitting. He deposed that her blood pressure and pulse was not recordable at the time of medical examination and she was unconscious. He gave out that she was blind and he found her in acute gastroenteritis shock. She suffered cardiac arrest during treatment. After treatment her heart beat increased but she vomited again and died at 5.30 a.m. According to him the cause of death was respiratory arrest secondary to aspiration. He proved the death certificate and admission form ext. Kha8. In his crossexamination he stated that after examining the eye symptom he found her blind. He gave out that she was congenital blind. He testified that he had examined the patient on the basis of symptoms disclosed by the person accompanying her and had found her blind after examination. The witness explained the endorsement made by him in his own handwriting at the end of Ext. Kha8 by stating that he was asked by the Investigating Officer to write down that it was a case of suspected poisoning.

Section 304B of the Indian Penal Code reads as follows :

�304B. Dowry death (1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called `dowry death'', and such husband or relative shall be deemed to have caused her death.

Explanation For the purposes of this subsection, ''dowry'' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 113B of the Indian Evidence Act reads :

113B. Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation For the purpose of this Section, ''dowry death'' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)�

The settled legal position, is that in order to establish the offence under Section 304B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. If the prosecution is able to prove the aforesaid facts and circumstances, then the presumption under Section 113B of the Evidence Act will operate. It is rebuttable presumption and the onus to rebut shifts on the accused.

Now we embark upon to consider whether the prosecution has proved that the death was caused otherwise than under normal circumstances and that soon before her death deceased was subjected to cruelty of harassment by her husband or any relative of a husband and such harassment and cruelty was in connection with any demand of dowry. Admittedly marriage of informant''s daughter Neelam with appellant Raj Bahadur was solemnised with garlanding ceremony alone in Vishwanath temple situated in B.H.U. Campus four years before her death. The first informant had five daughters including the deceased and marriage of three other daughters was solemnised with reception of Barat, enchanment of Vedic Mantras and Saptapadi whereas the marriage of the deceased with appellant Raj Bahadur took place in the temple with exchanging garlands. The witness Lal Vrat, father (P.W. 1), Radho Sharan Singh (P.W. 2), Tilakdhari Yadav (P.W. 5) elder brotherinlaw, Sunita Yadav (P.W. 6) sisterinlaw and Ram Dulari Devi (P.W. 7) mother of the deceased failed to explain as to why the deceased was discriminated and not married in a customary way with Hindu Marriage rituals though it was her first marriage without knowledge that appellant No. 1 was a married man. The appellant Radha alias Kamla the first wife of appellant Raj Bahadur is the cousin sister of Virendra Prasad alias Bengali Yadav (D.W. 2) son of maternal aunt (Mausi) of Tilakdhari Yadav (P.W. 5) eldersoninlaw of first informant. The maternal aunt of Tilakdhari was married to real uncle of appellant Radha alias Kamla. Rama Devi the younger sisterinlaw of Smt. Ram Dulari Devi (D.W. 7) is cousin sister of sisterinlaw of appellant Radha alias Kamla. The first wife of the appellant Raj Bahadur was real cousin sister of Virendra Prasad alias Bengali cousin brother of Tilakdhari and real aunt of Tilakdhari was the mother of Virendra Prasad alias Bengali. The proposal for marriage of Neelam with appellant Raj Badhadur having been channelised through Tilakdhari (P.W. 5) elder soninlaw of first informant, it is unbelievable that fact of first marriage of appellant was not within the knowledge of Tilakdhari and his fatherinlaw, the first informant. Moreover the solemnisation of marriage of an unmarried girl in a temple with garlanding ceremony alone indicates that previous marital status of appellant Raj Bahadur was known to the first informant and other family members prior to the marriage of victim with him. According to the appellants it was a marriage of convenience between a blind girl and a issueless man having a living spouse for procreation.

The prosecution witnesses have denied that deceased was a blind girl. The testimony of defence witness Virendra Prasad alias Bengali Yadav (D.W. 2) son of maternal aunt of Tilakdhari (P.W. 5) was that Neelam had no vision in her eyes and for that reason she was married to appellant Raj Bahadur, a already married man. The evidence of Dr. Jackob Jan (D.W. 3) then posted as Medical Officer in Kachhwa Christian Hospital District Mirzapur who examined the victim Neelam on 962000 at 4.15 a.m. was that she had congenital blindness. The witnesses Lal Vrat (P.W. 1) Radho Sharan Singh (P.W. 2), Shiv Dayal Yadav (P.W. 3), Shiv Moorat (P.W. 4), Tilakdhari Yadav (P.W. 5), Sunit Yadav (P.W. 6) and Ram Dulari Devi (P.W. 7) have not given any reason for marrying Neelam (deceased) with appellant Raj Bahadur a married man whose first wife was alive. If deceased was a normal and healthy girl, her parents Lal Brat (P.W. 1) and Ram Dulari Devi (P.W. 7) would not have married her to a married man. The solemnisation of marriage of deceased with appellant Raj Bahadur with garlanding ceremony at Vishwanath temple situated in B.H.U. Campus though the marriage of her other sisters took place with ceremonies of arrival of Barat at the residence of bride''s parents, indicates that deceased was suffering from some physical disability such as visual impairment. On the face of these facts the testimony of Dr. Jackob Jan (D.W. 3) that deceased was blind cannot be disbelieved. The multiplication of witnesses who are near relations to prove the same set of facts seems to be for the reason to make believe their evidence with regard to these facts.

Coming to the question of demand of Rs. 20,000/ soon before the death there are material contradictions staring on the face of the testimony of witnesses. The victim came to her parental home for the first time three months after her marriage and stated to have complained about her harassment and torture for the demand of cash of Rs. 20,000/. On 662000 she is said to have complained to her brother about her harassment for the demand of cash of Rs. 20,000/. According to Lal Vrat (P.W. 1) the father of the victim the girl was happily sent to her matrimonial home on second occasion and stayed there for a period of about one and half year. He gave out that his daughter stayed continuously for 1516 months at her marital home when she was sent third time. According to him his son went to his daughter''s matrimonial home 1516 months after and at that time she told him about harassment for demand of money. The testimony of Radho Sharan Singh (P.W. 2) the brother of the deceased was that he went to the matrimonial home of his sister for the last time on 662000 and was told by her that she was being harassed by the accused for the demand of cash of Rs. 20,000/. According to him the marriage was settled for Rs. 20,000/ but no money was paid at the time of marriage. It is there in his testimony that his sister visited her parental and matrimonial home 12 or 13 times during the period of 31/2 or 4 years whereas according to Lal Vrat (P.W. 1) she came to the parental home on 3 or 4 occasions. According to Lal Vrat (P.W. 1) a cash of Rs. 500/ alone was paid at the time of ''Chekiya'' and no other payment was made. Tilakdhari Yadav (P.W. 5) admitted that his fatherinlaw Lal Vrat correctly stated that Rs. 500/ was paid on the occasion of ''Chekiya'' ceremony and no other payment was made. The evidence of Ram Dulari Devi (P.W. 7) mother of the deceased was that when her daughter came to the parental home for the first time after her marriage and she told her that she was being subjected to assault and forced to perform domestic work. She further stated that four months before the death of her daughter her son Radho Saran visited her and after coming back he informed that his sister was being harassed for the demand of cash of Rs. 20,000/. Her testimony was that her daughter died two months after her son''s visit to her matrimonial home. The witness contradicted the testimony of her husband Lal Vrat (P.W. 1) and Radho Saran (P.W. 2) her son according to whom Radho Saran visited his sister on 662000. No previous complaint about demand of dowry and harassment was made by the deceased or her parents to the higher authorities. On the contrary the deceased was sent to the marital home on every occasion in a cordial atmosphere and she stayed at her matrimonial home for a considerable long time for about 11/2 years and 1516 months. She was sent to parental home every time with his brother without any hesitation or opposition by the appellants. There are material contradictions in the testimony of witnesses with regard to the point of time when demand of cash was made. The conduct of parents, brother, brotherinlaw and sisterinlaw of deceased in sending her to the marital home time and again without protest and the deceased staying at her matrimonial home for long period is a relevant factor indicating that there was no demand of dowry. On an indepth study and analysis of the testimony of witnesses Lal Vrat (P.W. 1), Radho Saran (P.W. 2), Tilakdhari Yadav (P.W. 5) and Ram Dulari Devi (P.W. 7) we find that it does not bear a ring of truth and cannot be relied upon with regard to demand of cash as dowry.

The next question posing consideration is whether the death of Neelam, informant''s daughter was caused by poisoning or it was a death due to cholera attack in normal circumstances. There is no denying the fact that Neelam, second wife of appellant Raj Bahadur died within seven years of her marriage with him. The witnesses Lal Vrat (P.W. 1), Radho Saran Singh (P.W. 2), Shiv Dayal Yadav (P.W. 3), and Shiv Moorat (P.W. 4) stated that on 11 62000 they went to village Nehwanipur and came to know from the villagers that death of Neelam was caused by the accused appellants Raj Bahadur, Jang Bahadur, and Radha alias Kamla by administering poison. There is no documentary evidence in the shape of postmortem report or chemical examination report etc. to prove that it was a case of poisoning. On the contrary the appellants have produced and proved death certificate and bed head ticket of Neelam Ext. Kha8 and examined Dr. Jackob Jan (D.W. 3) for rebutting the presumption that death was not homicidal or due to poisoning. The victim was taken to Kachhwa Christian Hospital, Kachhwa Mirzapur by the appellant Jang Badhadur and was admitted there on 962000 at 4.15 a.m. She was medically examined by Dr. Jackob Jan. She was diagnosed tentatively suffering from acute gastroenteritis in severe hypovolumic shock. She resuscitated after medication but she had a vomitting and aspirated after vomitting. She was declared dead at 5.30 a.m. According to Dr. Jacokob Jan (D.W. 3) the cause of death was respiratory arrest secondary to aspiration and he did not find any evidence of suspected poisoning at the time of admission of patient. In the crossexamination the state of that treatment was given for the symptoms disclosed by the appellant and on the basis of his resorcinol investigation. He gave a plausible explanation for the endorsement made by him in his own handwriting at the end of the report Ext. Kha8 by stating that the Investigating Officer had asked him to write down that it was a case of suspected poisoning but no evidence to suspect poisoning was found. The medical report and bed head ticket of deceased Ext. Kha8 establish that it is not a case of suspected poisoning. Moreover, if the appellants had administered poison to the deceased she would not have been taken to Kachhwa Christian Hospital, a well known hospital of the area, for treatment as cause of death by poisoning would have been immediately known or suspected by the doctor attending the victim. The conduct of appellant Jang Bahadur about disclosing the correct name of patient, her husband''s name and residence at the time of admission of victim in Kachhwa Christian Hospital speaks that it was not a case of poisoning. There was absolutely no reason to discard the sworn testimony of Dr. Jacob Jan about the cause of death. The death of informant''s daughter having been caused by cholera disease it cannot be termed as unnatural or homicidal death.

This brings us to the question of giving of information about the death to the parents of deceased. According to Ram Dulari Devi (P.W. 7) mother of the deceased her husband went to village Nehwanipur on the day of death of Neelam. She feigned ignorance about the fact of death of her daughter in the hospital or at her residence in village Nehwanipur. Lal Vrat (P.W. 1) feigned ignorance that Raj Bahadur was at his place of posting at the time of incident. He testified that he went to Nehwanipur on 96 2000 and found him there. The witness realising his mistake that truth fell from his lips about the date of reaching village Nehwanipur corrected himself and stated that he went to Nehwanipur on 1162000 and reached there at 4 p.m. alongwith Shiv Dayal Yadav and Shiv Moorat. According to Shiv Dayal Yadav (P.W. 3) he alongwith Lal Vrat went to Kachhwa hospital from Nehwanipur and came to know that a patient came there from village Nehwanipur but she died within few minutes when oxygen was being given to her. To the same effect is the testimony of Shiv Moorat (P.W. 4). It is quite strange that the witnesses having come to know that a patient was brought to Kachhwa Christian Hospital did not enquire about her identity and ailment. It is there in testimony of Shiv Dayal Yadav (P.W. 3) that after the incident he alongwith Lal Vrat and Shiv Moorat went to Kachhwa Christian Hospital. According to him the peon of Kachhwa Christian Hospital had informed after seeing the record that a patient of village Nehwanipur was brought there but died while oxygen was being given to her. On evaluation and appraisal of evidence we are satisfied that information about death at Kachhwa Christian Hospital was given to Tilakdhari, soninlaw of first informant Lal Vrat on the date of death and the informant alongwith his relatives reached the matrimonial home of his daughter. The first informant being satisfied with the cause of death did not immediately inform the police to take the deadbody in custody nor lodged the first Information Report. The witnesses have twisted the facts and modulated their evidence to make believe that information about death was not given and deadbody was cremated in their absence to cause disappearance of evidence. As a matter of fact the first informant Lal Vrat having reached the village Nehwanipur on the date of incident and taken no immediate action, there is presumption of his attending the cremation of his daughter.

We are, therefore, of the considerable view that the prosecution has failed to prove its case beyond reasonable doubt and the appellants are entitled to be acquitted. Accordingly, we allow the appeal and set aside the impugned judgment and order of trial Court and acquit the appellants of the charges for the offence punishable under Sections 304B, 120B I.P.C., under Sections 498A, 201 read with Section 120B I.P.C. and Section 3/4 of Dowry Prohibition Act. The appellants are in jail. They shall be released forthwith.

Certify the judgment to the lower Court within a week for compliance and making entry of decision in the register. The record of the case be also transmitted to the Court below immediately. The compliance shall be reported by the Court concern within four weeks from the date of receiving the copy of this order.