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2018 DIGILAW 1792 (JHR)

Bichhu Rawani v. State Of Jharkhand

2018-08-08

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Both the aforesaid Criminal Appeals are arising out of common impugned judgment of conviction and order of sentence, as such, both are being disposed of, by this common judgment. 2. Heard, Mr. S. P. Roy, learned counsel for the appellants and Mr. Vikash Kihsore, learned Addl. Public Prosecutor appearing for the State. 3. The aforesaid both Criminal appeals are directed against the Judgment of conviction dated 06.09.2003 and order of sentence dated 08.09.2003, passed by learned 2nd Addl. Sessions Judge, Dumka, in S.C. No.128 of 2002, whereby these four appellants have been convicted for the offence committed and punishable under Sections 304B /34 and 201 /34 I.P.C. The learned trial court awarded rigorous imprisonment for 7 years for the offence committed and punishable under Sections 304B /34 I.P.C. and rigorous imprisonment for three years for the offence committed and punishable under Sections 201/34 I.P.C. 4. The prosecution case is based upon ''fardbeyan'' of the informant, Parmeshwar Rawani (P.W.1) recorded by Sub Inspector of Police, Nandu Sharma, Taljhari Police Station on 10.12.2000 at 16.00 hours at Taljhari Police Station, alleging therein, that the informant has solemnized marriage of his daughter, Pramila Devi, aged about 18 years, in the month of ''Baisakh'' in the year 1999 with Siyaram Rawani. It is alleged that at the time of marriage, there was demand of Rs. 15,000/-, but the informant paid Rs. 13,000/- cash and gave watch, cycle and utensils etc. The informant has further alleged that after some time, the father of his son-in-law, namely, Mohan Rawani demanded balance amount of Rs. 2,000/-, for which the informant has said that after having money, he will pay the same. It is alleged that after the marriage, her daughter went to sasural from where she returned after 20 days and subsequently after one and half months, the father of Siyaram Rawani, namely, Mohan Rawani came for ''Bidaai'' of daughter-in-law. The informant has further stated that on the last day of ''Chhath'', Mohan Rawani, father of Siyaram Rawani came to the house of the informant and took ''Bidaai'' of daughter-in-law. At the time of ''Bidaai'', Mohan Rawani, father-in-law of the deceased, has again demanded said Rs. 2,000/- being balance of the dowry amount. The informant has stated that after arranging the money, he will send the same and thereafter his daughter went along with Mohan Rawani. At the time of ''Bidaai'', Mohan Rawani, father-in-law of the deceased, has again demanded said Rs. 2,000/- being balance of the dowry amount. The informant has stated that after arranging the money, he will send the same and thereafter his daughter went along with Mohan Rawani. After remaining in sasural for one month, the daughter of the informant, informed through one Jina Rawani, who was asked to tell the father of the deceased to send Rs. 2,000/- related with the marriage. This information was given to the informant by Jina Rawani, who was also the mediator of the marriage. The informant has said to Jina Rawani that after arranging, he will send the same to the in-laws. Thereafter on 10.12.2002, while the informant was at his house, he got an information at around 11.30 a.m. from one person, not known to him, resident of Jasidih, whose daughter''s marriage was also solemnized in Village- Simaria. The said person has disclosed that his daughter has been killed by son-in-law, father-in-law and mother-in-law by sprinkling Kerosene oil and putting her on fire. After receipt of this information, the informant along with his friends went to Village- Simaria and reached there at 2 p.m. and found that the door was closed and her daughter was not there. The son-in-law, father-in-law and mother-in-law of his daughter were also missing from the house. The informant became worried and subsequently, he got an information that son-in-law, father-in-law and mother-in-law of his daughter killed his daughter by pouring Kerosene oil, due to which she has died in the morning and thereafter with the help of the agnates, the dead-body was disposed of at Tepara River. The informant has claimed that for non-payment of Rs. 2,000/- which was related with the marriage, the accused persons have killed his daughter by pouring Kerosene oil and putting her on fire. On the basis of the aforesaid ''fardbeyan'' of the informant, the Police instituted First Information Report bearing Jarmundi (Taljhari) P.S. Case No. 172 of 2000 dated 10.12.2000 corresponding to G.R. No.1139 of 2000, under Sections 304B/201/34 of the Indian Penal Code against the accused persons. 5. On the basis of the aforesaid ''fardbeyan'' of the informant, the Police instituted First Information Report bearing Jarmundi (Taljhari) P.S. Case No. 172 of 2000 dated 10.12.2000 corresponding to G.R. No.1139 of 2000, under Sections 304B/201/34 of the Indian Penal Code against the accused persons. 5. After investigation, the Police submitted two charge-sheets, First bearing Charge-sheet No.55 of 2001 dated 08.03.2001 against appellant/accused, (1) Siyaram Rawani (husband of the deceased) (2) Mohan Rawani (3) Bichhu Rawani and (4) Ratni Rawani under Sections 304(B)/201/120(B) I.P.C. and Second charge-sheet bearing Charge-sheet No.97 of 2001 dated 20.06.2001 against Har Govind Rawani, Pradeep Rawani, Jagdish Rawani, Mano Rawani @ Manu Rawani, Firangi Rawani, Kaluwa Rawani, Badri Rawani, Matru Rawani and Tarni Rawani under Sections 304B/201 /120B I.P.C. 6. The cognizance of the offence has been taken vide order dated 17.03.2001 against Siyaram Rawani, Mohan Rawani, Bichhu Rawani and Ratni Rawani and cognizance of the offence has been taken vide order dated 21.06.2001 against Har Govind Rawani, Pradeep Rawani, Jagdish Rawani, Mano Rawani @ Manu Rawani, Firangi Rawani, Kaluwa Rawani, Badri Rawani, Matru Rawani and Tarni Rawani and the case has been committed to the Court of Sessions vide order dated 14.06.2002. The charge has been framed against all the 13 accused persons on 16th day of July, 2002 under Sections 304B/201/34 I.P.C. by the learned Sessions Judge, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution has examined altogether eight witnesses and also exhibited a number of documents in order to prove its case. 7. The prosecution has examined altogether eight witnesses and also exhibited a number of documents in order to prove its case. Parmeshwar Rawani, informant and father of the victim has been examined as P.W.1 and has proved his signature on the ''fardbeyan'' and the same has been marked as Exhibit-1, Suresh Kumar Rawani, son of the informant and brother of the deceased, has been examined as P.W.2, Naresh Rawani, another brother of the deceased and son of the informant, has been examined as P.W.3, Kamal Prasad Ram, uncle of the informant and cousin grand-father of the deceased, has been examined as P.W.4, Lalita Devi, mother of the deceased and wife of the informant, has been examined as P.W.5, Ganesh Rawani, resident of Simaria, has been examined as P.W.6, Harihar Rawani, another resident of Village- Simaria, has been examined as P.W.7, Nandu Sharma, Officer-in-Charge and the Investigating officer of the case, has been examined as P.W.8 and has proved the written report in his hand-writing as Exhibit-2, signature of Kamal Prasad Ram (P.W.4), on the ''fardbeyan'', has been proved and marked as Exhibit-1/1 and the Formal First Information Report has been proved and marked as Exhibit-3. 8. After closure of the prosecution evidence, the accused/appellants have been examined under Section 313 Cr.P.C. on 18.06.2003, wherein they have stated that they are innocent. The defence has also examined one Prahlad Rawani as D.W.1, but no documentary evidence has been adduced on behalf of the defence. 9. The learned trial court, after hearing learned counsel for the parties and perusing the records, has passed the impugned judgment of conviction and order of sentence, as stated above, which has been assailed by the appellants in the aforesaid two Criminal Appeals. Both the aforesaid Criminal Appeals are arising out of common impugned judgment of conviction and order of sentence, as such, both are being disposed of, by this common judgment. 10. Heard, Mr. S. P. Roy, learned counsel appearing for the appellants. Learned counsel appearing for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in eyes of law. 10. Heard, Mr. S. P. Roy, learned counsel appearing for the appellants. Learned counsel appearing for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in eyes of law. Learned counsel appearing for the appellants has further submitted that there are four ingredients for constituting an offence under Section 304B I.P.C. and unless and until the prosecution proves all the four ingredients for constituting an offence under Section 304B I.P.C, the presumption under Section 113B of the Indian Evidence Act, 1872, will not come into operation by shifting onus upon the accused/appellants rather in absence of application under Section 113B of Indian Evidence Act, prosecution is duty bound to prove its case beyond all reasonable doubt against accused/appellant. Section 113B of the Indian Evidence Act, 1872, speaks about presumption as to dowry death which reads as under :- "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 has 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." Learned counsel appearing for the appellants has submitted that basic ingredients with respect to cruelty or harassment to the woman has not been found in the present case, as such, the presumption under Section 113B of the Indian Evidence Act, will not come into play. 11. Learned counsel appearing for the appellant has relied upon a judgment, as reported in the case of Manohar Lal Vs. State of Haryana , (2014) 9 SCC 645 wherein in Paras 16 to 19, it has been held as follows :-.. "16. Section 304-B IPC relates to dowry death and reads as follows: "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 relative shall be deemed to have caused her death. (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." 17. For the purpose of the said section, a presumption can be raised only on proof of the following essentials: (a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances; (b) Such death took place within seven years of her marriage; (c) The woman was subjected to cruelty or harassment by her husband or his relatives; (d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and (e) Such cruelty or harassment was soon before her death. 18. In the case of Sunil Bajaj v. State of M.P , (2001) 9 SCC 417 , the Hon''ble Supreme Court held: (1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. 6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called ''dowry death'' and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as ''dowry death'' and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinising the evidence and in arriving at the conclusion as to whether all the abovementioned ingredients of the offence are proved by the prosecution." 19. The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act was considered by the Hon''ble Supreme Court in Hira Lal v. State (Govt. of NCT of Delhi) , (2003) 8 SCC 80 , which reads as under: "8. Section 304-B IPC which deals with dowry death, reads as follows: ''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 relative shall be deemed to have caused her death. (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.'' The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: 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. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8- 1988 on ''Dowry Deaths and Law Reform''. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowryrelated deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of ''dowry death'' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been ''soon before her death'' subjected to cruelty or harassment ''for or in connection with the demand of dowry''. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death." Similar observation was made by this Court in Balwant Singh and Anr. v. State of Punjab , (2004) 7 SCC 724 . In the said case this Court held: "10. These decisions and other decisions of this Court do lay down the proximity test. It has been reiterated in several decisions of this Court that ''soon before'' is an expression which permits of elasticity, and therefore the proximity test has to be applied keeping in view the facts and circumstances of each case. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim." 12. Learned counsel appearing for the appellant has also relied upon a judgment, as reported, in the case of Major Singh and ors. Vs. State of Punjab , (2015) 5 SCC 201 wherein in Paras- 10, it has been held as follows :-. "10. If any death is caused in connection with dowry demand, Section 113B of the Evidence Act also comes into play. Both these Sections 304B Indian Penal Code and Section 113 of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. "10. If any death is caused in connection with dowry demand, Section 113B of the Evidence Act also comes into play. Both these Sections 304B Indian Penal Code and Section 113 of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows :- "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 has 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 has caused the dowry death." It is imperative to note that both these sections set out a common point of reference for establishing guilt of the accused person Under Section 304B, which is "the woman must have been ''soon before her death'' subjected to cruelty or harassment '' for or in connection with the demand of dowry". 13. Learned counsel appearing for the appellant has also relied upon a judgment, as reported, in the case of Nageshwar Rajwar and Ors. Vs. State of Jharkhand , (2016) 3 JLJR 639 wherein it has been held as follows :- "15. Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which reads as under : "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 has 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 has caused the dowry death. As stated earlier, the prosecution, under Section 304B IPC, cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". As stated earlier, the prosecution, under Section 304B IPC, cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". In view of the Explanation to the said Section the word dowry has to be understood, as defined in Section 2 of the Dowry Prohibition Act, 1961, which reads as under :- "Section 2 of the Dowry Prohibition Act, 1961 defines "dowry'' means any property or valuable security given or agreed to be given either directly or indirectly - (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person. at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal Law(Shariat) applies." 23. Further, in the case of " Trimukh Maroti Kirkan V. State of Maharashtra , (2006) 10 SCC 681 " wherein charges were framed under Section 304-B, 302 I.P.C. The Court have held that provision under Section 106 of the Evidence Act which burdens the accused with special knowledge of any fact to explain, it can be invoked but in the instant case charge has only been framed under Section 304-B I.P.C. and in terms of provision under Section 113-B of the Indian Evidence Act, prosecution have to prove tis case beyond reasonable doubt on following ingredients of Section 304-B I.P.C. namely; "(a) The marriage was within seven years, (b) Cause of death was unnatural (c) Soon before the death the deceased was subjected to cruelty or harassment by the husband or the relatives of the husband." Thereupon in terms of provision of 113-B of the Evidence Act, onus were shifted on the accused persons to explain that in what circumstances the deceased died but in the instant case, the prosecution has failed to establish that soon before death the deceased was subjected to cruelty or harassment by the appellants or their family members. 14. Learned counsel appearing for the appellant has further relied upon a judgment, as reported in the case of Baijnath and Others Vs. 14. Learned counsel appearing for the appellant has further relied upon a judgment, as reported in the case of Baijnath and Others Vs. State of Madhya Pradesh , (2017) 1 SCC 101 , wherein it has been held that presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. A conjoint reading of these three provisions, thus predicates the burden of the prosecution to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or her relative or the person charged is thus, the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. 15. Learned counsel for the appellants has submitted that from perusal of the evidence of the informant, as stated in the First Information Report and from perusal of evidence of the informant deposed as P.W.1, it appears that the informant has no personal knowledge about torture or harassment soon before the death for payment of dowry nor has alleged that the daughter of the informant, namely, Pramila Devi had disclosed the aforesaid fact to him, rather from perusal of the First Information Report and the evidence adduced by the informant (Parmeshwar Rawani) as P.W.1, it appears that such fact was disclosed to him by one Jina Rawani, but said Jina Rawani has not been examined in this case. 16. 16. Learned counsel for the appellants has further submitted that said Jina Rawani has not been cited as witness in the charge-sheet nor has been examined before the learned trial court, as such, in absence of any evidence, regarding soon before the death there was torture and harassment for demand of dowry, which is basic ingredient for constituting an offence under Section 304B I.P.C., the appellants are entitled for acquittal of the charge and conviction under Sections 304B/34 I.P.C. and 201/34 I.P.C. Learned counsel has further submitted that the learned trial court has not framed any charge against the appellants under Section 302 I.P.C. and since the basic ingredient is lacking, the presumption under Section 113B of the Indian Evidence Act will not come in the way to the appellants, rather after all the basic ingredients are proved by the prosecution, then only the onus is shifted to the appellants/accused, otherwise in absence of proof under Section 113B of the Indian Evidence Act, it is the prosecution who has to prove its case beyond all reasonable doubt against the appellants. The prosecution witnesses, namely, Suresh Kumar Rawani (P.W.2), Naresh Rawani [P.W.3], both brothers of the deceased and son of the informant, Kamal Prasad Ram (P.W.4), cousin grand-father of the deceased and Lalita Devi (P.W.5), mother of the deceased, they all have also not placed any evidence to show that the deceased has ever made complaint regarding harassment or torure for demand of dowry by the in-laws, as such, in absene of such evidence or any incident disclosed by the prosecution, the presumption under Section 113B of the Indian Evidence Act will not operated against the appellants rather onus will remain with the prosecution to prove its case beyond all reasonable doubt. 17. Learned counsel for the appellants has further submitted that prosecution witnesses, namely, Ganesh Rawani (P.W.6) and Harihar Rawani (P.W.7) are the independent witnesses and they have not supported the prosecution case, even then Ganesh Rawani has not been declared hostile by the prosecution case, though Rawani has been declared hostile by the prosecution. The Court should examine evidence of the hostile witnesses with full care and caution. 18. Learned counsel for the appellant has further submitted that defence witness, Prahlad Rawani (D.W.1) has disclosed that the deceased died because of illness of Diahorrea. 19. The Court should examine evidence of the hostile witnesses with full care and caution. 18. Learned counsel for the appellant has further submitted that defence witness, Prahlad Rawani (D.W.1) has disclosed that the deceased died because of illness of Diahorrea. 19. Learned counsel for the appellant has further submitted that the Officer-in-Charge (P.W.8- Nandu Sharma) has proved ''fardbeyan'' as Exhibit-2 and formal First Information Report as Exhibit-3 and has stated in Para-2 of his examination-in-chief that Harihar Rawani (P.W.8) has disclosed before him that the accused persons, Bichhu Rawani, Siyaram Rawani, Mohan Rawani and Others have taken dead-body for disposal near Tepra river. However, Harihar Rawani (P.W.7) has not supported this version and has been declared hostile by the prosecution, as such, evidence for constituting offence under Section 201/34 I.P.C. is also lacking in this case. 20. Learned counsel for the appellants has further submitted that under the aforesaid circumstances, the appellants may be acquitted of the charge and conviction under Section 304B/34 and 201/34 I.P.C. by extending benefit of doubt, as the prosecution has miserably failed to prove its case beyond all reasonable doubt. Presumption under Section 113B of the Indian Evidence Act will not operate in the present case, as the prosecution has not proved the basic ingredients of soon before the death, the deceased was subjected to harassment and torture for demand of dowry. 21. Heard Mr. Vikash Kishore, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed upon the material available on record, as such, the learned trial court has rightly convicted the appellants vide impugned judgment of conviction and order of sentence, as the deceased died within seven years of marriage. Learned Additional Public Prosecutor appearing for the State has submitted that there is specific evidence with regard to the demand of dowry, as contemplated under Section 2 of the Dowry Prohibition Act. The demand of Rs. Learned Additional Public Prosecutor appearing for the State has submitted that there is specific evidence with regard to the demand of dowry, as contemplated under Section 2 of the Dowry Prohibition Act. The demand of Rs. 2,000/- by way of balance amount of dues related to marriage, comes within the ambit of Section 2 of the Dowry Prohibition Act and as such, basic ingredient of demand of dowry and death of the deceased within seven years of marriage and that too in unnatural circumstances, are present in the instant case and the learned trial court has rightly passed the the impugned judgment of conviction and order of sentence. 22. Having heard, Mr. S. P. Roy, learned counsel appearing for the appellants and Mr. Vikash Kishore, learned Addl. Public Prosecutor appearing for the State and from the perusal of the record including the First Information Report, framing of charge, evidence of eight prosecution witnesses, exhibits upto Exhibit-3 and statement of accused/appellants recorded under Section 313 Cr.P.C. and defence witness examined as D.W.1, this Court finds that the statement made by the learned counsel for the appellants that there is no evidence with respect to torture and harassment soon before the death of the deceased for demand of dowry, has got some force. From the perusal of the First Information Report and the evidence of the prosecution witnesses being Parmeshwar Rawani (P.W.1- informant), Suresh Kumar Rawani (P.W.2- brother of deceased), Naresh Rawani (PW.3 -brother of deceased), Kamal Prasad Ram (P.W.4- cousin grand father of deceased) and Lalita Devi (P.W.5- mother of deceased), it appears that the deceased (Pramila Devi) has never disclosed before them that in-laws and the husband are torturing her for not bringing Rs. 2,000/- which was related with the marriage, as part of dowry, as Rs. 13,000/- was paid at the time of marriage out of Rs. 2,000/- which was related with the marriage, as part of dowry, as Rs. 13,000/- was paid at the time of marriage out of Rs. 15,000/-, rather as per the prosecution case made in the First Information Report and the deposition of all these five prosecution witnesses, it appears that such information of harassment and torture to the deceased for demand of dowry soon before death has been disclosed by one Jina Rawani, but said Jina Rawani has not been examined in this case nor the prosecution has explained that why said Jina Rawani has not been examined nor Investigating officer has made Jina Rawani, a charge-sheet witness, and under the aforesaid circumstances, this Court is compelled to accept the submission advanced by learned counsel for the appellants to the extent that basic ingredients for constituting an offence under Section 304B I.P.C. is lacking i.e. torture and harassment to the deceased soon before her death for demand of dowry and as such, Section 113B of the Indian Evidence Act will not operate in this case against appellants in view of the facts of the present case and judgment pronounced by the Hon''ble Supreme Court, cited by the defence, as discussed above. This Court has perused the judgments placed by the learned counsel appearing for the appellants and those judgments are fully applicable in this case except in those judgments, dead-body of the deceased was found. In the present case, dead-body of the deceased was disposed of, without giving information to the Police or autopsy of the dead-body, but this Court has found that Ganesh Rawani (P.W.6), Harihar Rawani (P.W.7) and Prahalad Rawani (D.W.1) have not supported the prosecution case. Being independent witness, Harihar Rawani (P.W.7) has been declared hostile by the prosecution though Ganesh Rawani (P.W.6) has not been declared hostile by the prosecution. Prahalad Rawani (D.W.1) has categorically stated that the deceased died because of Diarrohea. Under the aforesaid circumstances and in view of the statement made by the Investigating officer (P.W.8) in Para-2 of his examination-in-chief that Harihar Rawani (P.W.7) has disclosed before him that dead-body was taken by the in-laws for disposal at Tepra river. However, Harihar Rawani (P.W.7) has not supported this version and has been declared hostile by the prosecuton. Under such background, the conviction of the appellants under Section 304B/ 34 and 201/34 I.P.C. cannot sustain in the eyes of law. However, Harihar Rawani (P.W.7) has not supported this version and has been declared hostile by the prosecuton. Under such background, the conviction of the appellants under Section 304B/ 34 and 201/34 I.P.C. cannot sustain in the eyes of law. This Court is of the opinion that the Judgment of conviction dated 06.09.2003 and order of sentence dated 08.09.2003, passed by learned 2nd Addl. Sessions Judge, Dumka, in S.C. No.128 of 2002, is not sustainable in the eyes of law, as such, the same is hereby set aside. Accordingly, the appellants are acquitted of the charge and conviction under Sections 304B/ 34 and 201/34 I.P.C. by giving benefit of doubt to the appellants. 23. Accordingly, the aforesaid both Criminal Appeals stand allowed. 24. The appellants, who are on bail, are discharged from the liability of their bail bonds. 25. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.