JUDGMENT : Heard the learned counsels appearing on behalf of the parties. 1. All the appellants stand convicted for the offence under Sections 304 B, 498 A and 314 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten, three, and ten years respectively with fine for later two offences Rs.5,000/- each and in default to undergo simple imprisonment for two months as awarded by 2nd Additional Sessions Judge, Fast Track Court, Munger on 24th November, 2009 in Sessions Trial No. 723 of 2000 arising out of Kotwali P.S. Case No. 574 of 1998 (G.R. No. 1808 of 1998). 2. The prosecution case as reveals from the complaint petition is that the victim Manju Kumari was married on 18.5.1997 with Vijay Kumar Sah, appellant in Criminal Appeal (SJ) No. 53 of 2010 and soon she was subjected to some torture and demand of dowry and was also kept confined. Her parents were not permitted to meet her resulting into institution of Dharhara P.S. Case No. 22 of 1998 at the instance of the informant, PW-6. Thereafter, matter was amicably settled. The victim’s statement under Section 164 of the Code of Criminal Procedure was also recorded (Exhibit-12) and resides with her in-laws house where she stayed for about four months and thereafter proceeded with her husband for Bhatinda where he was working as Army Personnel. Subsequently, the prosecution side suddenly received one telegram about her illness followed by another intimating her deteriorating condition. Her mother, uncle, brother and one servant, PWs-2 to 5, proceeded for Bhatinda where they found the dead body lying in Army Hospital. In spite of their demand and objection after obtaining signature of brother of the deceased PW-3 on a consent paper dead body was cremated and all the four were forced to come back, whereafter, the informant was initially tried to lodge a case at Munger Police Station which could not be entertained, then filed a complaint case bearing Complaint Case No. 471 C of 1998, which was transmitted to police station concerned under Section 156 (3) of the Code of Criminal Procedure upon which Kotwali P.S. Case No. 574 of 1998 was instituted. 3. 3. The police after investigation in both the cases submitted charge sheet independently for the offences they were instituted, but subsequently, at the time of commitment of Kotwali P.S. Case No. 574 of 1998 at the instance of accused persons in spite of objections being raised by the informant vide order dated 22nd August, 2000 the earlier case appears amalgamated with later as its part and partial. All the accused persons, husband, parents-in-law, sister-in-law (Nanad) of the deceased faced trial for the offence under Sections 498 A, 314, 304B and 201 of the Indian Penal Code. 4. The prosecution in support of its case examined altogether 12 witnesses besides the following documentary evidence:- Ext. 1- F.I.R. Ext.2- Signature on Fardbeyan (Written statement) Ext.3- Case 471 C/98 (Signature on Complaint petition. Ext.4- Dharhara P.S. Case No. 22/98 (writing of Santosh Kumar on written application and signature). Ext.5- Writing of Manju Devi on letter dt.4.2.98. Ext.6- Carbon copy of original Sanha No. 395 (J)/98 prepared by typist Gita Chaurasia. Ext.7- Writing and signature of Vijoy Kr. Sah on letter dated 8.2.98. Ext.7/1- Writing and signature of Vijoy Kr. Sah on letter dated 18.2.98. Ext. 7/2- Writing and signature of Vijoy Kr. Sah on letter dated 21.2.98. Ext.8- Writing and signature of sri Lakshman Pd. Officer Incharge of Kashim Bazar, P. S. on Police Station case No. 574/98 arising out of Complaint Case No. 471/98. Ext. 8/1- Writing of Rambalak Singh Munshi and signature of Officer Incharge Binod Pd. on the formal F.I.R. Ext.9- Signature of D.M. S.C. Mishra on the order vide letter No. 279 dated 13.5.99. Ext.10- Entire F.I.R. of Dharahara P.S. 22/98 GR 400/98 Ext. 10/1- Signature of the then Officer Incharge on Registrar Ext. 11- Formal F.I.R. Ext. 12- Statement u/s 164 Cr.P.C. of victim Manju Devi. 5. The defence also produced four witnesses besides the following documentary evidence:- Ext. X- Photo Ext. X/1- Photo. Ext. A, A/1, A/2, A/3- Signature of Manju Devi in each four pages in the court of J.M. Munger in relation to Dharahar P.S. Case No. 22/98. Ext. B- Signature of informant, his daughter and other accused persons on compromise petition in relation to Dharahars P.S. Case No. 22/98. Ext.C- Writing and signature of Smt. Kishori Rai on the medical report. Exts. X to X/48- Original certificates. Ext. D- Death Certificate. Ext.E- Prescriptions (Treatment documents of Dr. R.S. Dahiya). Ext. Ext. B- Signature of informant, his daughter and other accused persons on compromise petition in relation to Dharahars P.S. Case No. 22/98. Ext.C- Writing and signature of Smt. Kishori Rai on the medical report. Exts. X to X/48- Original certificates. Ext. D- Death Certificate. Ext.E- Prescriptions (Treatment documents of Dr. R.S. Dahiya). Ext. F- Willingness and non- willingness of Post Mortem report. Ext. G- Prescription of Dr. Crl. N. Dewan (Three Sheets). 6. On consideration of all such materials the trial court acquitted the appellants from the charges under Section 201 of the Indian Penal Code but convicted and sentenced in the manner aforesaid giving rise to all these three appeals. 7. Learned counsel for the appellants contended that there was no such demand of dowry and torture, but both the cases have been instituted with an ulterior motive. The deceased, no doubt, died within 1-1/2 years of her marriage due to effect of Jaundice during advance stage of pregnancy in spite of being provided with best available medical facility at Military Hospital, Bhatinda and her husband in spite of taking all efforts to provide best medical assistance and also intimated her in-laws by sending telegrams about her illness and deteriorating conditions and lastly about death of the deceased by telegram. The dead body was kept in mortuary till PWs- 2 to 5 arrived there consented for cremation, but ignoring all such aspects including institution of second case during pendency of earlier one even at investigation stage the trial court convicted and sentenced the appellants. 8. In contra, the learned Additional Public Prosecutor tried his level best to support the findings of the trial court, but at the same time he is not in a position to explain validity of institution of subsequent case with another police station without furnishing any definite intimation regarding earlier ongoing investigation against same set of accused persons in a case instituted at the instance of the same informant. 9. Out of total twelve prosecution witnesses examined, PW-1, Gyan Shanker Singh, (Advocate’s Clerk) is formal witness, proved Exhibit-1. 9. Out of total twelve prosecution witnesses examined, PW-1, Gyan Shanker Singh, (Advocate’s Clerk) is formal witness, proved Exhibit-1. PW-2, Kishore Kumar Yadav, is stranger to the family, but attached as an ex-worker accompanied the mother, uncle and brother of the deceased for Bahtinda, has come to say that her in-laws was demanding some cash and article and earlier instituted case was compromised and the deceased was pregnant went for Sasural, but subsequently, her husband brought her to Bhatinda and thereafter intimated about her illness. Consequently, he along with PWs- 3, 4 and 5 went there could be able to see her dead body in the next morning in a hospital. In cross-examination, he says that they left Munger for Bhatinda on 02nd September, 1998, but there is no paper in support thereof. In paragraph-5, he says that the deceased left the village for Bhatinda on 14th August, 1998. The first telegram was received on 01st September, 1998 and second was on the following day i.e. 02nd September, 1998. Her husband was an Army Personnel posted at Bhatinda and the dead body was available at Army Hospital, but he is unable to say as to whether for treatment she was hospitalized there or not. 10. PW-3, Sanjay Kumar, is the brother of the deceased stated the prosecution version, institution of earlier case and settlement etc. and subsequently the deceased proceeded for Bhatinda from where two telegrams were dispatched and when he arrived at Bhatinda before permitting to see the dead body he had to sign on a paper written in English. He requested for postmortem examination, but nothing could be done except cremation of the body. In cross-examination, he admits some photographs taken during the last rites of the deceased, marked Exhibit-X and X1. He admits in the photographs himself, his brother-in-law and PW-2 besides his mother (PW-5) and uncle (PW-4). Further, in paragraph-13, he says that earlier on 22nd February and 06th March, 1998 there was some conversation regarding earlier demands and settlement etc. and after the cremation of the body they were brought to station and got train for Munger. He further admits that during the entire period even after catching the train none have made any attempt to intimate any Police Officials or anyone else for postmortem examination etc. and after the cremation of the body they were brought to station and got train for Munger. He further admits that during the entire period even after catching the train none have made any attempt to intimate any Police Officials or anyone else for postmortem examination etc. or institution of the case even none of the Army Officials were ever applied for and or returned to Munger on 06th September, 1998. 11. PW-4, Rajendra Sah, is the uncle of the deceased, who too in examination-in-chief stated the prosecution version, proved Exhibit-2, the written application forming basis of institution of the earlier case and subsequent compromise etc. receiving telegrams proceeding for Bhatinda where on arrival got information about the death of his niece and there they were kept in a Varandah in two groups and in the very next morning at about 10.30 A.M. could be able to see the face of the deceased and in spite of request made no postmortem was conducted, but the body was cremated and, thereafter, all had to return. He further admits that while proceeding for Bhatinda the deceased carrying pregnancy and further in paragraph-25, he states that after due deliberation with the family members the present case was instituted. 12. PW-5, Sumitra Devi, is the mother of the deceased stated the prosecution version including pregnancy of the deceased, institution and settlement etc. in earlier instituted case and after stay for substantial period with in-laws proceeding the deceased for Bhatinda, receiving two telegrams about her in-laws and deteriorating condition and proceeding for Bhatinda where only after putting signature of her son they could be able to see the dead-body which was subsequently cremated without any autopsy. In paragraph-14 of the cross-examination, she expresses her inability to say filing of any complaint by the deceased against her husband and in-laws before and after settlement etc. In paragraph-15, she says that immediately on receipt of telegram they boarded in the train and on arrival found the dead body kept in a mortuary and on the next day of their arrival at about 11.00 A.M. the body was cremated after taking the same from the mortuary. In paragraph-15, she says that immediately on receipt of telegram they boarded in the train and on arrival found the dead body kept in a mortuary and on the next day of their arrival at about 11.00 A.M. the body was cremated after taking the same from the mortuary. In paragraph-19, she admits that the last rites was performed by the husband of the deceased and she had a doubt about death of the deceased due to conspiracy hatched by the husband of the deceased and in the following paragraphs she speaks that in spite of such issue at no point of time any information was given to her husband and father and towards the end of the said paragraph she admits that while they were boarding in the train for Bhatinda death of the deceased had already been intimated by telegram and in paragraph-21, she says about receiving of telegram intimating her death and the same had been intimated to the police. 13. From the statement of all these four witnesses above discussed, who on receipt of information about illness of the deceased in spite of having doubt of her unnatural death at no point of time have ever made any serious attempt to even whisper before the Army Officials and Personnel or any other authority regarding their doubt and necessity of autopsy, but participated in cremation ceremony of the deceased. 14. PW-6, Bajrangi Sah, stated the prosecution version, institution of earlier case and settlement etc., proved Exhibit-4. During cross-examination he admits examination of the deceased under Section 164 of the Code of Criminal Procedure, in connection with earlier case, admits her signature thereon and proved Exhibit-A series besides Exhibits- B and C, recorded on 06th April, 1998, wherein, he has said that she resides at her Sasural comfortably and she was never tortured and now between the two females there is amicable settlement and demand of Rs. 50,000/- and T.V. has already been left. This witness at no point of time either in the complaint petition or in his statement has ever said about any demand or torture etc. being caused at the instance of husband or in-laws of the deceased. 50,000/- and T.V. has already been left. This witness at no point of time either in the complaint petition or in his statement has ever said about any demand or torture etc. being caused at the instance of husband or in-laws of the deceased. Subsequent to amicable settlement filing of compromise petition regarding statement of the deceased recorded under Section 164 of the Code of Criminal Procedure, rather likewise earlier four witnesses examined, he too has said only about alleged demands made earlier and remains silent about anything otherwise relating to any subsequent demand or otherwise conduct of the husband of the deceased or anyone else related to him. During stay of the deceased for about 3 to 4 months with her in-laws at the village, there is no complaint likewise during her brief stay at Bhatinda rather they admit the conduct of the husband of the deceased, who kept them well informed about the illness, deteriorating condition and subsequent death by sending three telegrams. Kept the dead body in the mortuary till they arrived there and even thereafter on lapse of reasonable time, the dead body was cremated. 15. Neither the PWs- 2 to 5 as stated earlier ever seriously tried nor this PW-6, the father of the deceased and informant of the case, in spite of receiving the third telegram containing a news of death of his daughter rushed for there or intimated the Court or Investigating Agency in the case already instituted since before and pending investigation i.e. Dharahra P.S. Case No. 22 of 1998. If at all, there was any genuine and natural doubt in the mind of all these family members or the persons some how or the other attached they could have very well done so, otherwise, there appears substance in the submission of learned counsel for the appellants that subsequent case has been instituted in a planned manner just to cause undue harassment to the appellants or putting them under duress with ulterior motive. 16. PW-7, Prasadi Paswan, is an Advocate’s Clerk, who is formal witness, proved Exhibit-6. PW-8, Om Prakash Yadav, is another formal witness, proved Exhibits- 7 to 7/2. 16. PW-7, Prasadi Paswan, is an Advocate’s Clerk, who is formal witness, proved Exhibit-6. PW-8, Om Prakash Yadav, is another formal witness, proved Exhibits- 7 to 7/2. PW-9, Sunil Topno, is the Police Official, proved Exhibits-8 and 8/1, has conducted initial investigation and submitted charge-sheet only against the father-in-law of the deceased Mahendra Prasad Sah (Appellant No. 2 in Criminal Appeal (SJ) No. 996 of 2009), but during cross-examination admits that at no point of time he visited Bhatinda. PW-10, Shambhu Nath Choudhary, is another formal witness, proved sanction order Exhibit-9. PW-11, Md. Taslim, has come to say about earlier demand made by in-laws of the deceased, but in cross-examination unable to furnish relevant details. PW-12, Dharamdeo Ram, is another Police Official, proved Exhibit-10, related with earlier instituted case, but since this Official had got no information about death etc. of the deceased practically did nothing. 17. From the discussion made above, it appears that there is nothing on the record to show any illegal or unwarranted activities including any sort of demand for dowry, torture and cruelty caused to deceased soon before her death. In absence, whereof, mandatory requirement to attract rigors of Section 304 B of the Indian Penal Code read with Section 113 B of the Indian Evidence Act, which reads as such :- “[304- B. Dowry death.- (1) Where the death of a woman 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 relatives shall be deemed to have caused her death.” “[113- B. 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”, are not attracted, compelling the husband and in-laws of the deceased to prove their innocence. However, they have entered into defence and out of total four witnesses examined, DW-1, Subedar Bhup Singh, posted at Bhatinda at the relevant time and produced the documents called for by the Court at the instance of the appellants kept in sealed cover along with attested copy of Death Certificate of the deceased. He is practically a formal witness and in cross-examination fairly admits that at the time of treatment of the deceased he was not available there. 18. DW-2, Pankaj Kumar, is a Contractor, proved Exhibits- X2 to X48 and Exhibit-A, the Death Certificate. Practically he is a formal witness and proved the writing etc., but by appearing and giving evidence, PWs-3 and 4 admit all the documents relevant and well proved. 19. DW-3, Colonel Sajendra Singh Dahiya, affirmed the genuineness of Exhibit-A and further proved Exhibits-B and C and he is the person in whose presence in spite of his best efforts the deceased breath her last after spending about thirty hours in the Army Hospital and struggling for life which was in danger due to sudden infection of Jaundice. DW-4, Colonel N. Devan, is the Doctor in whose presence the deceased was admitted and treatment was initiated and every required test was done immediately and medicines were provided. He proved Exhibit-D and further proved his prescription. 20. On overall consideration of the materials it is crystal clear that the prosecution has not been able to substantiate the charges leveled against the appellants and, in spite of the above, the defence by adducing cogent and convincing evidence has been able to establish that since the deceased got infected Jaundice at advance stage of pregnancy she was immediately hospitalized in an Army Hospital where she was provided with due medical assistance, but could not survive and whatever as a husband would have been done by the appellant, namely, Vijay Kumar Sah (Criminal Appeal (SJ) No. 53 of 2010), who is in custody, he did. He not only got managed best available treatment to his wife (deceased), but also made her family well aware of the developments. 21. He not only got managed best available treatment to his wife (deceased), but also made her family well aware of the developments. 21. In face of the conclusion arrived at, there appears no need to adjudicate upon the question of validity of filing of the Complaint Case No. 471 C of 1998 and institution of Kotwali P.S. Case No. 574 of 1998 based thereon in spite of pendency of earlier instituted Dharahra P.S. Case No. 22 of 1998 at the instance of same informant against same set of accused persons for all other similar offences except under Section 304 B of the Indian Penal Code. 22. In the result, the judgment of conviction and order of sentence recorded by the learned trial court against the above named appellants is not at all sustainable; consequently, it is set-aside and all the aforesaid three appeals are hereby allowed. The appellant, namely, Vijay Kumar Sah (Criminal Appeal (SJ) No. 53 of 2010, who is in custody, is ordered to be released forthwith, if not required in any other case and the remaining appellants, namely, Reeta Devi (Criminal Appeal (SJ) No. 952 of 2009) and Sumitra Devi and Mahender Prasad Sah @ Mahendra Pd. Sah (Criminal Appeal (SJ) No. 996 of 2009) are set free from the liability of bail bonds furnished on their behalf. Appeals allowed.